Justice Potter Stewart, in 1964, while ruling in a case on obscenity, wrote, “I know it when I see it”. This is, of course, no test at all, as it depends solely on the subjective opinion of a judge. Blasphemy is similarly subjective, and the law in India, a necessarily pluralistic polity long before it became a secular republic, has grappled with the subjective offence taken on behalf of religious communities from insults to their religion.
Given the highly charged political environment and the emotions associated with religious belief, thus far, the law, in theory, if not in practice, has evolved with caution, so as to temper the subjective belief of those offended with the need to allow for freedom of speech and checks and balances. These are nuances that have often been lost in the dust of everyday policing but remain the constitutional touchstones for balancing the constitutional right to free speech with the state’s interest in protecting law and order and religious harmony.
Difference Between Sacrilege & Blasphemy
Sacrilege is blasphemy, but blasphemy may not be sacrilege. The law distinguishes between injuring or defiling a place of worship, or any object held sacred by any class of person (Section 295 of the Indian Penal Code), and simpliciter outraging the religious feelings of any class by insulting its religion or religious beliefs (Section 295A of the Indian Penal Code). The former requires only an intention to insult, while the latter the dolus specialis of deliberate and malicious intention to outrage. The caution with regard to frivolous cases of speech in the latter is also protected by the need for state or Central government sanction before a charge sheet can be presented before a court.
In a multi-religious society, where there is no one religious dogma that has primacy, heresy of a religion is impossible, as essential truths in every religion can be considered heresies of another by those who choose to do so. Section 295A of the Indian Penal Code was a response to a law and order issue around the publication of a brochure in pre-Independence India – Rangila Rasul – concerning the personal life of Mohammed.
The publisher was acquitted due to a lack of a law on blasphemy, but after surviving numerous assassination attempts, he was assassinated in 1929. In 1927, in response to community pressure, Section 295A was introduced after a report by the Select Committee.
The Select Committee did not consider intention sufficient to criminalise blasphemy. The Committee also wanted to exclude from the realm of criminality good-faith critiques of religion. The sanction of the government to initiate prosecutions was inserted to “avoid factitious or vindictive proceedings”.
A Number of Cases of Misuses
The constitutional validity of Section 295A was analysed in a case that arose from the publication of a magazine titled “Gaurakshak”, which published a cartoon that was considered insulting to Islam. A five-judge Bench of the Supreme Court upheld the constitutionality of Section 295A in the teeth of the right to free speech because of the dolus specialis that “insult to religion and the outrage to religious feeling must be the sole or primary purpose of speech”.
In fact, the requirement of this dolus specialis has proven effective in limiting wrongful conviction for blasphemy. Even Mahendra Singh Dhoni being portrayed as Lord Vishnu was not found to be criminal as it was not an act carried out with deliberate and malicious intent to outrage. Further, free speech laws have been read down to require more than just an outburst. In Balwant Singh, the Supreme Court held that mere raising of some lonesome slogans and distribution of pro-Khalistani pamphlets by off-duty police officers were not sufficient to rise to an offence similarly drafted to penalise hate speech leading to inter-religious tensions.
The Supreme Court’s edicts against misuse, however, have not prevented misuse; inconvenient speech has been booked under Section 295A and people have undergone incarceration, even if for a brief period.
Vishal Dadlani and Tehseen Poonawalla had to apply for anticipatory bail, and later tender an apology for the attempted humour on a distinguished Jain monk. Abhijit Iyer Mitra was also subjected to a short jail stint for parodying the erotic sculptures in the Konark Temple.
What Even Is 'Sufficiently' Punitive?
Punjab has witnessed a heated political context to blasphemy. The often-cited lack of a blasphemy law, or, what should have been said a draconian blasphemy law, led to the Punjab Assembly proposing a life sentence for those committing sacrilege to the Sri Guru Granth Sahib, Srimad Bhagawad Gita, Holy Quran, and Holy Bible, with the intention to hurt the religious feelings of the people. The length of the sentence was enhanced significantly. Section 295A’s approval was returned by the President on the grounds that it was contrary to the constitutional mandate of secularism. It prompted voices arguing that India does not have a sufficiently punitive blasphemy law. It is not the lack of a law that is being argued against – because both sacrilege and blasphemy are on the books – but the fact that the punishment for those who are the most offended is not sufficiently punitive.
However, perhaps the case of Asia Bibi in Pakistan should serve as a cautionary tale. One of the first acts of the Islamisation of law was making blasphemy a case punishable by death. A poor Christian Dalit in a village, Bibi was accused of eating from the same utensils and then arrested for blasphemy for making derogatory remarks on the Prophet. Many of those who spoke out in her favour had been assassinated by the time she was finally acquitted by the Pakistan Supreme Court.
The political turmoil on blasphemy has entered a dangerous territory where the doctrine of self-defence is being used to justify the death of a person alleged to have committed sacrilege.
It seems that the rule of law has been left by the wayside, and we are on a slippery slope to private enforcement. The balanced approach of the 1927 Select Committee is faced with a populist maelstrom.
(Avi Singh is an advocate who specialises in transnational law and serves as the Additional Standing Counsel for the government of NCT of Delhi. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)