The recent over-enthusiastic, and quite patently illegal application of Section 295A of the Indian Penal Code on comedian Kiku Sharda by the Haryana Police, for allegedly impersonating and making fun of Baba Gurmeet Ram Rahim Singh, has brought to the fore a thorny and highly uncertain aspect of the offence under Section 295A – what is a religion?
Specifically, what religion or religious beliefs were being insulted by Kiku Sarda’s act, when the Dera Sacha Sauda is itself an organisation that was set up only in 1948. More so when what was being alluded to, and being parodied, was the film made by Baba Gurmeet Ram Rahim Singh, and not any actual teachings of the Dera Sacha Sauda. By this line of reasoning, one would think that the ardent followers of Bollywood stars constitute a separate religion of their own!
While the Indian Penal Code has a whole chapter dedicated to offences against religion (of which Section 295A is one section), it does not, curiously, define what is “religion”. The term “religion” or “religious” is used no fewer than nineteen times throughout the Indian Penal Code, but nowhere defined as to what it is in exact terms. A genuine question is whether Sec. 295A covers just “mainstream” religions such as Buddhism, Christianity, Hinduism or Islam? Or would smaller sects, sub-sects and cults that are not necessarily part of the so-called mainstream religions also get protected under the IPC, even though their teachings may directly contradict mainstream religions?
This Law Is Antithetical to Freedom of Expression
The Courts have also not been forthcoming, and there is no decision which directly defines what a “religion”, or “religious feelings” are. On the contrary, the Supreme Court has recognised, in the context of fundamental right to religion under the Constitution, that the term religion is “incapable of specific and precise definition”. The Court has held that it is not something that has a “rigid definition”, and by its very nature “difficult, if not impossible to define”.
This lack of clarity is not just a lawyer’s or over-zealous litigant’s paradise – it also fundamentally affects civil liberties of citizens as Kiku Sharda’s and numerous other cases have shown. A law that’s vague, ill-defined and broad enough to cover any sort of legitimate speech is antithetical to freedom of speech and expression. It may even be argued that religions that claim to be the “sole truth” are themselves falling afoul of Sec. 295A of the IPC. In fact, such a claim was made in 1985 before the Calcutta High Court, when two extremely indignant petitioners tried to get the Calcutta High Court to ban the Koran, and have all copies of it confiscated by the West Bengal State Government. The Calcutta High Court, however, saw through the absurdity of the demand and declined to do so.
The vagueness in drafting, along with the indefinable principles used, makes Section 295A suspect to enormous abuse at the hands of litigants. The Supreme Court is currently hearing a challenge to the constitutional validity of Sec. 295A on precisely these grounds – that it is a threat to freedom of speech in India as protected under the Constitution. One hopes that instances such as the Kiku Sharda arrest prompt the Court to seriously consider the constitutional validity of Section 295A.