Hate speech, IPC Sec 295A, and how courts have read the law

Section 295A & others

Section 295A defines and prescribes a punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

“Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to [three years], or with fine, or with both,” the IPC section reads.

Section 295A is one of the key provisions in the IPC chapter to penalise religious offences. The chapter includes offences to penalise damage or defilement of a place of worship with intent to insult the religion (Section 295); trespassing in a place of sepulture (Section 297); uttering, words, etc, with deliberate intent to wound the religious feelings of any person (Section 298); and disturbing a religious assembly (Section 296).

Section 295A has been invoked on a wide range of issues from penalising political satire and seeking bans on or withdrawal of books to even political critique on social media.

The state often invokes Section 295A along with Section 153A of the Indian Penal Code, which penalises promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony and Section 505 of the IPC that punishes statements conducing to public mischief.

In cases where such speech is online, Section 66A of the Information Technology Act that punishes sending offensive messages through communication services is added. In a landmark verdict in 2015, the Supreme Court struck down Section 66A as unconstitutional on the ground that the provision was “vague” and a “violation of free speech”. However, the provision continues to be invoked.

The broad, vague terms in the laws are often invoked in its misuse. Lower conviction rates for these provisions indicate that the process — where a police officer can arrest without a warrant — is often the punishment. Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.

Origins of the law

Colonial origins of the hate speech provisions are often criticised for the assumption that Indians were susceptible to religious excitement. In a 2016 paper in the Economic and Political Weekly, legal scholar Siddharth Narrain notes that the First Indian Law Commission, headed by T B Macaulay who drafted the Indian Penal Code, had written to the Governor General of India in 1835 that “there is perhaps no country in which the Government has so much to apprehend from religious excitement among the people.”.

Section 295A was brought in 1927.

In his book Offend, Shock or Disturb, lawyer Gautam Bhatia writes that the antecedents of Section 295A lie in the “communally charged atmosphere of North India in the 1920s”. The amendment was a fallout of an acquittal under Section 153A of the IPC by the Lahore High Court in 1927 in Rajpaul v Emperor, popularly known as the Rangila Rasool case.

Rangila Rasool case

Rangila Rasool was a tract — brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life. Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court, which examined the question whether targeting religious figures is different from targeting religions.

When a second, similar piece was published, it raised tensions. While the magistrate had convicted the publisher Rajpaul under Section 153A, the Lahore High Court held that a “scurrilous and foul attack” on a religious leader would prima facie fall under Section 153A — although not every criticism.

This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.

Later cases

In 1957, the constitutionality of Section 295A was challenged in Ramji Lal Modi v State of Uttar Pradesh. The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”. Public order is an exemption to the fundamental right to freedom of speech and expression and the right to religion recognised by the Constitution.

In a 1960 ruling, in Baba Khalil Ahmed v State of Uttar Pradesh, the Supreme Court said that “malicious intent” of the accused can be determined not just from the speech in question but also from external sources.

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In 1973, in Ramlal Puri v State of Madhya Pradesh, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”. However, these determinations are made by the court and the distinction can often be vague and vary from one judge to the other.

In Baragur Ramachandrappa v State of Karnataka, a 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A. The state government had issued a notification banning Dharmakaarana, a Kannada novel written by award-winning author P V Narayana on the ground that it was hate speech, invoking a gamut of provisions including Section 295A. The pragmatic approach was to restore public order by “forfeiture” of a book over individual interest of free speech.