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The recent beheading of the Hindu tailor by two Muslim extremists for supporting Nupur Sharma (now a suspended BJP spokesperson) after she gave controversial remarks on the Prophet Muhammad has led to a huge uproar in the country and all these situations have led to shedding light on the section 295A of IPC and also escalating debate around the idea of blasphemy. A wave of religious fanaticism has gripped the whole world, with no less force in India, which has been experiencing the same trend. Even when expressing a reasonable or fair perspective on religion, academics and entertainers have faced backlash. Though India has no law for blasphemy, many recent controversies have led many people to believe that Section 295A is used against blasphemy.
Origin of Blasphemy
Blasphemy is defined by certain religions or religion-based regulations as acts or statements that disrespect God or a revered religious figure or thing. The original intention of making blasphemy a crime was to assure total reverence and safeguard religions as they grew.
However, other motivations quickly developed. From the ancient through medieval periods, kings believed they were unbeatable. With titles like Zil-e-Ilahi, they attempted to present religion and the state as divinity (the shadow of God). They utilized governmental power and the idea of blasphemy to silence critics. Worryingly, members of terror or extremist organizations who have been educated and trained in radicalization centres are not uncommon in calling for the execution of people convicted of blasphemy or actually carrying out the extra-judicial medieval penalty. And, as we’ve seen, this is no longer limited to areas like Syria.
Section 295A and Blasphemy in India
Individuals’ right to practice, preach, and spread not only religion but many varieties thereof is enshrined in India’s constitution. The same laws impose appropriate constraints on both the state and the individual, as the enjoyment of the same rights should not jeopardize the country’s public order, morality, or national security. One of the laws which applies the appropriate restriction is Section 295A, which reads:
“if a person maliciously by words spoken or written or signs or by visible representation insults or attempts to insult religious sentiments of any class of citizens of India then he may be punished under this section. A person can be imprisoned for 3 years or fined, or both if charged under Section 295A of the Indian Penal Code”
Somehow this law is being treated as a blasphemy law in India, However, India is not listed among the countries that have blasphemy laws as Section 295A does not clearly define or mention blasphemy. To make Section 295A more effective and to give it a proper tooth, it is a non-bailable and cognizable offense that police can exercise their power to arrest the accused without any warrant. The police have the right to arrest the accused based on the registered FIR.
Blasphemy in the International Discourse
In 1999, Pakistan presented the concept of blasphemy to the United Nations (UN) under the umbrella of the Organization of Islamic Cooperation (OIC) as ‘Defamation of religion.’ Between 1999 and 2009, the UN’s attitude shifted from preserving religion to defending people’s rights to follow their faith, amid several arguments and deliberations. This idea is manifested in several UN statements. Furthermore, the UN criticizes governments that have blasphemy laws in existence, declaring that countries that have signed the ICCPR (International Covenant on Civil and Political Rights) and yet have blasphemy laws in any form are in contravention of their commitments under the ICCPR.
The UN also acknowledges the idea that blasphemy laws are used as a tool to limit individuals’ rights to express themselves and inhibit freedom of speech, which is draconian in nature.
Is 295A being used as a blasphemy law to hinder Freedom of speech?
In the recent cases of Nupur Sharma and Munawar Faruqui, the latter was arrested for hurting the sentiments of the people, though, in the Nupur Sharma case, the Supreme Court later prevented her arrest, all these incidents triggered one question: Whether this law is being used by the state as an instrument of oppression?
Section 295 A is regarded as the Indian version of the Blasphemy law. It punishes insulting the religion or religious beliefs of any class of people if such an insult is delivered with the deliberate and malicious goal of offending that class’s religious feelings. It is contrary to the secular ethos of the Indian Constitution and jeopardizes freedom of speech and communication, personal liberty, scientific temperament development, and the spirit of change in society. In these times having a contrary opinion against the majoritarian mores can easily land one in the web of law. Section 295A being cognizable and non-bailable is problematic because it gives the power to the police to arrest the accused without any warrant, thus this increases the chances of abuse of law at the whims of the executive.
Spreading religious hatred on social media and blasphemy
Today’s social media algorithms function in such a manner that one typically sees the kinds of postings with which one agrees or disagrees, narrowing the variety of dialogues and, in many cases, making their excessive consumption unsafe. Today, there are many pages and groups on social media that are only created to target a specific community, and these pages and groups instil hatred in the people, usually through offensive and blasphemous content. The recent Twitter controversy of Md Zubair, the Alt News co-founder who tweeted a picture offending the religious sentiments of Hindus, is a fresh example of spreading hatred on social media. In the Delhi riots of 2020, it was the social media groups in which the ill content was regulated and people were incited to come on the roads and cause riots. The recent Kanpur violence, in which hundreds of Muslims demonstrated after Friday prayers and began pelting stones and torching vehicles, was also governed by WhatsApp groups, which encouraged people to use violence in order to protest Nupur Sharma’s remarks about the prophet.
Spreading hatred on social media in these times has become easy. Therefore, it should be regulated in such a manner that it does not hamper the right to freedom of speech and, at the same time, it should also put reasonable restrictions on what should be posted or not.
Important Case Laws
In Ramji Lal Modi v. the State of Uttar Pradesh, the constitutional legality of Section 295 A was challenged in 1957 on the grounds that the provision did not represent a reasonable limitation on free speech and expression within the sense of Article 19(2) of the Constitution. The Court maintained the provision’s validity, observing that it was a fair restriction on free expression “for the sake of public order” under Article 19(2) of the Constitution.
In S. Rangarajan v. P. Jagjivan Ram, it was decided that the link between speech and disorder had to be like a “spark in a powder keg.” This standard was strengthened further in 2011, when it was determined that only speech that amounted to “incitement to impending unlawful action” could be punished.
The Supreme Court distinguished between advocacy and incitement in the Shreya Singhal decision, holding that the rules regulating free expression must be read narrowly or the devastating impact on free speech will be total.
The application of Section 295 must be clarified; otherwise, hypersensitive groups will continue to use it as a tool of intimidation. To begin with, First, there must be a use of judicial mind before the registration of a case to ensure that it is not used to target legal speech. Second, the provision should be invoked solely in circumstances of aggravated insults, and the criteria of closeness between speech and public disorder established by some judicial rulings should be used as the determining factor in such cases.
The intention with which this law has been made must be protected, but not at the cost of hindering the freedom of speech of an individual. Moving away from the goal of public disruption and focusing only on the anti-religious substance of speech would result in the use of blasphemy laws in a constitutionally secular government. In the current state of affairs, any significant engagement with religion, which is the pounding heart of Indian society, would result in catastrophic consequences.
This article is authored by Ayush Singh, student at Institute of Law Nirma University.