Satanic Versus Law

Unlike in UK,blasphemous libel is not restricted to one religion in India

Written by Fali S. Nariman | Published: January 23, 2012 3:56:20 am

Salman Rushdie,a not infrequent visitor to India,is in the news again. For the wrong reasons.

When Rushdie’s novel The Satanic Verses was first published in 1988,depicting four women as prostitutes and giving them names beloved of the Prophet,it caused great offence to some members of the Muslim community. Relying on a House of Lords’ decision of 1979,Muslims in the UK fervently pleaded for an extension of the law of blasphemy to non-Christian religions. But it was turned down because Whitehall (the seat of England’s government),even with the influx of millions of immigrants to England,was still — at least in outlook — an exclusively Christian country!

If by innuendo,the distinguished and popular author,who could not attend/ did not attend/ was not permitted to attend the Jaipur Literature Festival (take your pick!),had linked the names of the four women in his book instead to Jesus Christ,he would have been guilty of the criminal offence of blasphemy in England — the bastion of free speech. Let me explain.

In 1976,a poem titled “The Love that Dares to Speak its Name” was published in an English newspaper Gay News,edited and published by Denis Lemon. It fantasised (in verse) explicit acts of sodomy with the body of Christ immediately after his death,ascribing to Jesus promiscuous homosexual practices with the Apostles and with others.

A prosecution was launched. And Lemon and the publishing company were found guilty and convicted of the common law offence of blasphemy: sentence of nine months’ imprisonment imposed on the editor and publisher,and £1,000 fine imposed on the company. The case was taken up to the final court of appeal in England. The House of Lords upheld the conviction (by majority). Lord Scarman — though a great liberal — endorsed the severity of the law of blasphemous libel,for reasons set out in his majority judgment.

He recalled the speech of Lord Macaulay in the British parliament way back in 1833: “If I were a judge in India I would have no scruple about punishing a Christian who should pollute a mosque.” Scarman then added that,“When Macaulay became a legislator in India he saw to it that the law protected the religious feelings of all. In those days India was a plural society; today the United Kingdom is also.”

Scarman’s criticism of the common law offence of blasphemy (prevalent in the UK) was not that it existed,but that it was not broad enough. “It was,” as he said in his judgment,“shackled by the chains of history.” He then explained why it was necessary to extend the common law offence of blasphemy to all other religions:

“My Lords,I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary,I think there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom. In an increasingly plural society such as that of modern Britain it is necessary not only to respect the differing religious beliefs,feelings and practices of all but also to protect them from scurrility,vilification,ridicule and contempt.”

It was the Indian Penal Code of 1860 (principally the handiwork of Lord Macaulay) that had consciously extended the English Common Law offence of blasphemy to all religions practised in British India (Section 298 and Section 153A of the IPC). But in 1927,a judge of the high court of Lahore,then part of British India,held that the existing statutory provisions in the Code prohibiting incitement of hatred and enmity between subjects of His Majesty,were not meant to stop polemics,however scurrilous or in bad taste,against a particular religious leader whether alive or dead. Freedom of speech must prevail. There were strong public protests and the legislature in British India had to intervene. Accordingly intentional insult or attempts to intentionally insult any religion or outrage religious feelings of any class of His Majesty’s subjects was then made a separate offence (Section 295A of IPC); and freedom from vilification of one’s religious beliefs and sentiments got restored.

In 1957 a Constitution Bench of the Supreme Court of India upheld the validity of this section as not contravening the fundamental rights of free speech and expression guaranteed by Article 19(1)(a).

My response to some recent comments by a few members of the distinguished literati — Indian and foreign — in Jaipur over the last weekend is that intentional vilification of the Christian religion is still as much a criminal offence in the UK (a land of hope and glory for free speech) as it is in India — except that in India it is not restricted to one religion alone.

The writer is an eminent jurist
express@expressindia.com

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