BLASPHEMY LAWS AND FREEDOM TO SPEECH AND EXPRESSION: AN INDIAN PERSPECTIVE

Table of Contents

INTRODUCTION

According to Bryan A. Garner, Black’s Law Dictionary[1], blasphemy is ‘An irreverence towards God, religion, a sacred icon, or something else considered sacred.’ The literal dictionary meaning of the word ‘Blasphemy’ refers to showing disrespect towards God either verbally or in written manner. This has often been referred to as ‘Hate Speech’ in India. Blasphemy has its origination from a Greek word which means ‘to speak evil of Divine Things’. In the Judeo-Christian-Islamic custom, blasphemy inculcates those acts consisting of oral abuses or illegal acts against sacred values and sentiments. The penalty for committing such blasphemous acts is death under this religion.

Amongst the Catholics culture, blasphemy is a sin and a curse for any act done against God. Blasphemy Laws are often used to protect the holy and sacred nature of any organized religion. This holiness is a set standard that the society has to protect in order to reserve morality and religious beliefs in the society.

The main objective of this Article is to give a brief idea about the Concept of Blasphemy and how is it different from Hate Speech; the position of Article 19(2) Pre and Post First Amendment Act; Current Scenario of Blasphemy in India followed by reference to Atheism.

DIFFERENCE BETWEEN ‘BLASPHEMY’ & ‘HATE SPEECH’

‘Hate Speech’ may involve incitement to an imminent violence and might also be criminalized, but ‘Blasphemy’ refers to disrespect towards God, religion or any sacred consideration which is not necessary to be criminalized.

‘Hate Speech’ is more focused on protecting the believers, whereas, ‘Blasphemy’ is more focused on protecting the beliefs of the believers. This simply means that Muslims may be protected against any defamation made for their community, but at the same time they cannot stop people from having beliefs of their own related to any Community because this will hamper their Freedom of Expression.

‘Hate Speech’ can be regulated by making of laws, whereas, ‘Blasphemy’ cannot be regulated by laws only because it is open to ideas, beliefs, criticisms and challenges to the religious concepts.

PRE-FIRST AMENDMENT TO THE CONSTITUTION OF INDIA

The landmark judgment of Romesh Thappar v. State of Madras[2] briefly stated the facts of the case as that the petitioner was a printer, publisher and editor of a weekly journal in English entitled as the Cross Roads to be printed and published in Bombay. The Government of Madras in exercising their power given under Section 9(1-a) of the Madras Maintenance of Public Order Act, 1949[3] issued an order on 1^st March, 1950 imposing a ban upon the entry and circulation of the journal in that State. The petitioner claimed this to be violative of his Fundamental Rights as enshrined under Article 19(1)(a) of the Constitution of India and also Section 9(1-a) of the said act to be violative of Article 13(1) of the Constitution of India as being derogatory with the aforesaid fundamental rights. The appeal of this case was made under Article 32 of the Constitution because High Court denied certificate.

It was opined that unless a law restricting freedom of speech and expression is directed solely against the undermining of the security of the state or the overthrow of it, such law cannot fall within the reservation under clause (2) of Article 19, although the restrictions which it seeks to impose may have been conceived generally in the interests of public order. It followed that section 9(1-a) which authorizes imposition of restrictions for the wider purpose of securing public safety or the maintenance of public order falls outside the scope of authorized restrictions under clause (2), and is therefore void and unconstitutional.[4]

Clause (2) of Article 19 having allowed the imposition of restrictions on freedom of speech and expression only in cases where danger to the State was involved, an enactment which is capable of being applied to cases where no such danger could arise, cannot be held constitutional and valid to any extent.[5] This laid down the ‘Overbreadth Test’ wherein power to strike down the entire provision was granted.

This case mainly dealt with the issues of ‘Public Tranquility’ and ‘Public Safety’ and maintenance of ‘Public Order’ directly coming under the subject matter of the State security. It was therefore held that if a document is seditious in nature, its entry should be validly prohibited in the State, but if the document is calculated to disturb public tranquility and affect public safety, its entry cannot be prohibited because public order and disturbance of public tranquility are not matters which undermine the security of state.[6]

THE CONSTITUTION FIRST (AMENDMENT) ACT, 1951

Article 19(2) stood amended with coming into force of the First Constitution (Amendment) Act as follows:

“(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”

This amendment mainly contended that the Freedom to Speech and Expression cannot be used in its ‘Absolute form’ but is certainly subjected to few more reasonable restrictions in order to protect the interests of the State as a whole. The ambit of Article 19(2) was broadened providing peace and maintenance of public tranquility in the interest of public order.

POST-FIRST CONSTITUTION (AMENDMENT) ACT, 1951

In the case of Ramji Lal Modi v. State of Uttar Pradesh[7] a writ petition of Certiorari was filed under Article 32 of the Constitution challenging the constitutional validity of Section 295A of Indian Penal Code being ultra vires and unconstitutional. The brief facts of the case were that the petitioner was a publisher, editor and printer of a monthly magazine called ‘Gaurakshak’. This magazine was devoted to cow protection. Subsequently, an article was published in this magazine out casting the Muslims for which the petitioner was prosecuted for offences under Section 153A and Section 295A of the Indian Penal Code.

The High Court of Allahabad held that the article was published with the deliberate and malicious intention of outraging the religious feelings of the Muslim community and that the petitioner was held guilty under Section 295A.[8]

It was therefore held by the Hon’ble Supreme Court in the favour of the respondent that a law imposing restrictions on freedom of speech and expression may include insults leading to public disorders and also the insults which may not lead to public disorders. The former may fall under Article 19(2) but the latter may not. Article 19(2) protects a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression “in the interests of public order” which is much wider than “for maintenance of public order”.[9]

On the other hand, Section 295A punishes only aggravated form of insult to religion accompanied by a deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to dispute the public order and the section, which penalizes such activities, is well within the protection of clause (2) of Article 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of speech and expression guaranteed under Article 19(1)(a).[10]

Therefore, there must exist a reasonable nexus between the speech made and causing of public disorder.

CURRENT SCENARIO OF BLASPHEMY IN INDIA

So far as the current status of Blasphemy Laws in India is concerned, Section 295A of the Indian Penal Code is considered to be the Indian Perspective of Blasphemy Laws. The Constitution of Independent India has enshrined the concept of Secularism in its very Preamble. The basic features of Secularism account for non-discrimination on grounds of religion,[11] non-establishment principle,[12] and freedom of religion.[13] The Indian Constitution takes a Reformative approach in this regard by abolishing unjust religious practices.

The Indian Constitution has also given reverence to the propagation of Athiesm, which arose from a very strong desire to question inequalities of religion. While the ancient times had Charvaka, Sankhya philosophy and Budhism, modern times have Bhagat Singh, Periyar, Ram Manohar Lohia, etc. Perhaps, on the basis of this tradition when the demand was raised in Constituent Assembly for adding “in the name of God” in the text of Preamble, the same was rejected.[14]

The constitutional right of freedom of conscience of atheists and non-believers has been recognized in our Constitution.[15] It was held in the case of St. Xavier’s College v. State of Gujarat[16] that “Secularism is not anti-God or pro-God, it treats alike the devout, the agnostic and the atheist.” These rights also extend to the right of propagating one’s own ideas. In the light of this case, courts have recognized the right to freely choose one’s own religion and even practice atheism.

CONCLUSIONS AND SUGGESTIONS

Therefore, it is concluded that is it not feasible to extent legal restrictions on hate speech to blasphemy because criminalizing blasphemy will directly violate fundamental right to freedom of expression. Criticizing a certain religion is one’s own personal choice and belief because in the same manner there is Atheism in Indian society also legally recognized by the Constitution. However, amendments and changes are always welcomed in Indian law whenever and wherever necessary.

It is also suggested that challenging these blasphemy laws will not regulate the problem of the people, but will more or less be a political agenda. Blasphemy Laws are too vague and abstract to be protected by laws because one cannot restrict someone from holding their own ideas, opinions and beliefs. The protection has to be more focused towards ‘Protecting Speech not Expression.’

[1] ¶ 181 (9^th ed. 2009)

[2] 1950 AIR 124: 1950 SCR 594

[3] Madras Act 23 of 1949

[4] Ibid ¶10

[5] Ibid ¶11

[6] Ibid ¶13

[7] 1957 AIR 620, 1957 SCR 860

[8] Ibid ¶2

[9] Ibid ¶9

[10] Ibid ¶9

[11] The principle is echoed in Ar 14, Article 15(1), Article 16(1) and Ar 325. This principle can be understood by following statement of Radhkrishnan, in the book titled Recovery of Faith published by Harper Brother in 1955 at P 202: “We hold that no one religion should be given preferential status, or unique distinction that no one religion should be accorded special priviliges in national life … this view of religious impartiality, of comprehension and forbearance, has a prophetic role to play within national and international life. No group of citizens shall arrogate to itself rights and privileges it denies to others. No person should suffer any form of disability and discrimination because of his religion but all alike should be free to share to the fullest degree in the common life.”

[12]This principle is echoed in Article 28. This principle can be best understood by Ambedkar’s statement in the Constituent Assembly on 17 October 1949 where he says, “secular state does not mean that we shall not take into account religious sentiments of the people. All a secular state means is that this parliament shall not be competent to impose any particular religion on rest of the people. That is the only limitation we recognize.”

[13] This principle is echoed in Article 25 and Article 26 of Indian Constitution.

[14] H V Kamath, 17 October 1949 Constituent Assembly Debates http://parliamentofi ndia.nic.in/ls/debates/ v10p10m.htm .

[15]Bhaskar, Anurag and Shubham Kumar (2018): “Constitutional Rights of Atheists and Non-believers,” Economic & Politial Weekly, Vol 53, No 38, pp 16–20.

[16] 1974 AIR 1389, 1975 SCR (1) 173

Authored by: Shubhi Dhiman,