June 25, 2006 12:21:33 am
There is no law of blasphemy as such in India. The nearest is Section 295(A) of the Indian Penal Code (IPC), which punishes with fine and imprisonment up to 3 years speech, writings, or signs which ‘‘with deliberate and malicious intention’’ insult the religion or the religious beliefs of any class of citizens.
The legislative history of Section 295(A) is interesting. A tract, Rangila Rasool, was published in which there were scandalous references to Prophet Mohammed’s personal life. The Lahore High Court ruled that although the writing was certainly offensive to the Muslim community, the prosecution was not legally sustainable because the writing could not cause enmity or hatred between different religious communities, which is the gist of the offence under Section 153(A) of the IPC. There was an outcry from the Muslim community and a demand for change in the law. Thereafter Section 295(A) was enacted. Incidentally the author of the tract was murdered in Court.
The report of the Select Committee preceding the enactment of Section 295(A) is significant. It stated that the purpose of the Section was to punish persons who indulge in wanton vilification or attacks upon the religion of any particular group or class or upon the founders and prophets of a religion. It however emphasised that ‘‘an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made’’. Therefore the Committee recommended that the words ‘‘with deliberate and malicious intention’’ be inserted in the Section.
Jinnah, who was a member of the Committee, wisely stressed the necessity of securing ‘‘the fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected’’.
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The constitutionality of Section 295(A), which was assailed in the case of Ramji Lal Mody, was upheld. The Supreme Court ruled that the Section did not infringe freedom of expression because ‘‘Section 295(A) does not penalise any and every act of insult to or attempt to insult the religion…Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section…It only punishes the aggravated form of insult to religion perpetrated with deliberate and malicious intention’’.
The trend of judicial decisions is that one may legitimately criticise the tenets of a particular religion as irrational or historically inaccurate but it is not permissible to revile the founder of a religion or the prophets it venerates as frauds and charlatans or to expose them to scorn. Courts would in such cases infer ‘‘deliberate and malicious intention’’ to insult the religion.
Whose religious feelings have to be considered for determining breach of Section 295(A)? Obviously it must be of persons belonging to the religion which or whose founder and prophets have been vilified. Take the case of the outrageous cartoons of the Prophet. It would be fallacious to judge the matter from the perspective of a non-Muslim or an agnostic. The issue is to be determined in the context of how these will be viewed by the people who see them, the intensity of their beliefs and sentiments, and their likely reactions. The yardstick is not the standards of hyper-sensitive and volatile minds but those of ordinary persons of normal sensibilities. In this exercise one should never forget that Muslims have deep and abiding reverence for the Prophet. And remember that freedom of religion, in the words of Lord Scarman, ‘‘by necessary implication imposes a duty on all of us to refrain from insulting or outraging the religious feelings of others’’. Therefore freedom of expression cannt be invoked in India for publication of the cartoons. Nor can freedom of religion justify excessive violent reaction.
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