A Blasphemy Law is Antithetical to India's Secular Ethos

In the last week of October 2018, all of Pakistan was brought to a standstill by large-scale protests against the acquittal of a Christian woman named Asia Bibi by the Supreme Court of Pakistan, in alleged case of blasphemy. Seventy kilometres away, the Punjab government in India, attempted to pass a legislation punishing the scarilege of holy books of the Hindus, Muslims, Sikhs and Christians. More recently, Langfang, a Chinese metropolis, banned public Christmas decoration and any form of Christmas celebrations across the city. Clearly, blasphemy and defamation of religion remains serious challenge to democracy in South Asian countries.

This article argues that Section 295A of the Indian Penal Code (IPC), which is an Indian variant of the blasphemy law, violates the secular character of Constitution. First, it interferes with ideals of social reform of religion as envisaged under the Constitution by disallowing fair criticism of religion. Second, it interferes with the freedom of atheists and non-believers which have been Constitutionally protected (Bhaskar and Kumar 2018).  This article further discusses how a recent amendment of Section 295A of IPC, which was introduced by the Punjab legislative assembly disturbs the understanding of secularism. Under this section, any injury, damage or sacrilege of four  religious books (Sri Gurugranth Sahib, Srimad Bhagwad Gita, Holy Quran and Holy Bible) has been made punishable with life imprisonment. 

Understanding ‘Unique Secularism’ of Indian Constitution

The Western understanding of secularism is based on the idea of a “wall of separation” between church and state. This understanding emerged from a power struggle between the two estates, which  concluded in the signing of the Treaty of Westphalia in 1648. In India, however, the Constituent Assembly had a difficult task ascertaining the kind of secularism that should be suitable to such a religious society (Madan 1997). The question before the assembly was whether the word "secular" ought to be included in the Objective Resolution of the Constitution, which later became the Preamble of the Constitution.

If yes, then what should be the nature of secular state in independent India? Should the state strictly stay well away from religion, that is, follow the no-concern theory of secularism? Or should the state adopt an approach where it respects all the religions equally? These two, distinct positions, clashed continuously during the Constituent Assembly debates (Jha 2002). The first position saw a secular state as a state which stays away from religion per se. Inspired by the French model of secularism this position was taken by like those of M Masani and K T Shah. On the other hand, K M Munshi, Lakshmi Kant Mitra and H V Kamath did not agree with the Western outlook. The differences between these two positions were brought forth on various issues, like whether to provide for an expantionist right to practice, or for a narrower right to worship under the freedom of religion. The differences were also visible in matters like the introduction of a Uniform Civil Code, political safeguards for minorities, and whether or not religious instructions should be given in schools. 

Despite differences, the Constitution makers clearly imagined a distinct role of the state in reforming religion, albeit amidst disagreement to the nature and extent of such a role by state. This is an approach which Rajeev Bhargava (2006) calls “principled distance” whereby, the state would have a deep concern for social reform of religion or as he puts it, the “respectful tranformation of religions.”

Hence, other than the classic features of secularism, that is, non-discrimination on grounds of religion[1], non-establishment principle [2], and freedom of religion [3], the Indian Constitution provides for reformation, and the curbing of socially unjust religious practices. Abolition and criminalisation of untouchability, and throwing open of Hindu religious temples can be seen as the provisions emerging from this reformative approach. This understanding of secularism thus requires critical engagement with religion. A necessary prerequisite for critical enegaement aimed at reform is the freedom to question religion and religious practices.

Section 295A and Fair Criticism

Blasphemy means, “speaking evil of the divine things”. In India, where the state is secular, there can be no law of blasphemy as such. Thus, in modern states, offences related to religion aim to uphold law and order, and do not necessarily aim to protect god or faith. Section 295A was also introduced in the background of “competitive communalism” in early 20th century Punjab, whereby public peace would be disturbed by large-scale religious hostilities. Although it has been argued that the provision was brought to implement the colonial policy of divide-and-rule, after independence, the only useful purpose the provision could serve was protection of law and order (Nair 2013).

Section 295A Code provides that any insult or attempt to insult religion, or the religious beliefs of a class, with the deliberate and malicious intention of outraging religious sentiments shall be punishable. This section was enacted to make malicious acts insulting the religion, or outraging the religious feelings, of any class of citizens, punishable as offences relating to religion, whether or not they amount to attempts to promote feelings of enmity or hatred between classes as contained under section 153A of IPC (Sarvaria 2003).

 In Ram Ji Lal Modi v The State of UP (1957), the constitutionality of the provision was challenged. The Supreme Court while holding the provision to be constitutional provided that not every insult to religion is covered under the said section, and only those insults which are taken up with deliberate and malicious intentions are covered under the section. The Court thereby upheld the restriction on freedom of speech and expression in the garb of maintaining public order [4]. The Court held that the provision has been created in favor of public order. However,  the Court completely failed to appreciate that not every insult of religion would necessarily lead to a law and order situation. By arguing that “certain activities have tendency to disrupt public order,” the Court laid down grounds for an expansionist reading of the provision, which  limited the scope for fair criticism of religion. Later, the Supreme Court, Superintendent, Central Prison Fatehgarh v Ram Manohar Lohia (1960) rationalised that the test laid down in Ram Ji Lal Modi v The State of UP (1957) and held that “there must be a proximate link between speech and public disorder, an not a far-fetched, remote or fanciful connection.”

Fair academic criticism of religion cannot be construed as blasphemy. But judicial interpretations have increasingly focused on anti-religious content in publications, without considering the law and order disruptions they might cause. As argued by Gautam Bhatia (2016), the aforesaid requirement of proximate link between speech and disruption of law and order has been consistently undermined by the apex court. In Sri Baragur Ramachandrappa v State of Karnataka (2007), the court held that “any unwarranted or malicious criticism or interference in faith of others cannot be accepted.” What is unwarranted, what is warranted, the court in this case did not specifiy. In the R V Bhasin case (1987), court declared a book to be aggravated form of insult on the grounds that “possibility of its falling in the hands of an inflammable mob cannot be ruled out”. The criteria for banning any publication has been established to a clear and present danger to law and order, and not merely a possibility of the work falling in hands of a mob (Supretendent, Central Jail, Fatehgarh  v Ram Manohar Lohiya, 1960). Courts have even read deliberate intentions on flimsy grounds that the author changed the name of a book because she wanted to impose her philosophy through name of Lord Basaveshwara, with little analysis as to how same would amount to attract aggravated insult test (Poojya Shri Jagadguru Maate v Government of Karnataka). In fact a new trend has emerged to use section 295A against publication of material on historic figures like Shivaji, Rani Padmavati, etc who by any stretch of imagination cannot be called a religious figure (Sanjay Leela Bhansali and Ors v State of Rajasthan and Ors 2018(1)RLW513(Raj), State of Maharashtra v Sangharaj Damodar Rupawate Manu/SC/0466/2010 ). 

Thus, the judicial approach has increasingly placed religious defamation at higher level of scrutiny than defamation of other kinds. This judicial interpretation is perhaps an echo of rise of religious intolerance in nation post 1980s. The rigour of this section is further heightened by procedural law attached with it. Section 295A is non-compoundable and cognisable. Further Section 95 of the Criminal Procedure Code which is used by state governments to ban publications which are hit by Section 295A, allows state governments to do so by mere surmises. The current interpretation of the section does not require the government to show that religious sentiments were actually hurt. Mere possibility of hurt of religious sentiments is enough.

Ambedkar, Periyar, Ram Manohar Lohia, Bhagat Singh, among others consistently criticised various religious practices. Ambedkar during the Mahad Satyagraha burnt the Manusmriti in order to voice his disagreement against discriminatory Brahminical practices. But current judicial interpretations of Section 295A are so wide that the possibility symbolically challenging discriminatory religious practices in the manner that Ambedkar did has been curbed.  

Section 295A is necessary for ensuring that threats to religious harmony are controlled because the constitutional scheme of ideals of fraternity require that religious harmony must be promoted. One of the stated objectives of the section at the time of its drafting was that “everyman should be suffered to profess his own religion and that no man should be suffered to insult the religion of another”[5]. However the language should not be constructed so broadly that any possibility of meaningful engagement with religion is ruled out [6]. Completely moving away from the public order objective, and focusing completely on the anti-religious content would lead to protecting against merely the hint of inconvenient speech. Current provision puts religious convictions outside mandates of democratic criticism and encourages religious fanaticism, which is in direct conflict with the constitutional culture of secularism.

Section 295A and Rights of Atheists under Indian Constitution

The Indian sub-continent has had a long tradition of debate concerning religious practices, and the propagation of atheism, which arose from a strong desire to question inequalities of religion. While the ancient times had Charvaka, Sankhya philosophy, and Budhism, modern times had 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.[7]

The constitutional right of freedom of conscience of atheists and non-believers has been recognised in our Constitution.[8] As the Court holds in St Xavier’s College v State of Gujrat-“secularism is not anti-God or pro-God, it treats alike the devout, the agnostic and the atheist.” The rights of atheists to their freedom of conscience also extend to right to propagate their ideas.

However, the interpretation of Section 295A in a recent sociopolitical context, with its wide scope, directly undermines this constitutional right. In 2016, a private meeting of atheists was attacked in Mathura, and the superintendent of police of the city expressed concerns  that the convention could have promoted communal disharmony.

In the last year, the apex court has placed the individual as the centre of constitutional rights. Self-determination has been seen as central to  self identity.[9] In the case of Hadiya, for instance, the court held that “faith of a person is intrinsic to his/her autonomy; … choosing a faith is substratum of individuality and sans it, right of choice becomes a shadow”[10]

In light of this constitutional language, whereby courts have recognised the right to freely choose one’s religion and even practise atheism, Section 295A’s wider interpretation is a serious gap.

 A Mixture of Religion and Politics

The Punjab assembly had passed an amendment to the Indian Penal Code seeking to amend Section 295A, and insert Section 295AA with the intent to punish scarilege of religious texts with life imprisonment. The controversial section provides that, “whoever causes injury, damage or scarilege to Sri Gurugranth Sahib, Srimad Bhagwad Gita, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punished with imprisonment for life.” Further the amendment also increases punishment for Section 295 from two years to 10 years.

The Ranjit Singh Commission revealed serious allegations about the role of the previous state government in cases involving scarilege. The Shiromani Akali Dal government seems to have brought the provision to gain political mileage by punishing only the scarilege of the Guru Granth Sahib, which was clearly a violation of the ideals of secularism (Mehta 2018). However, the present attempt which includes three other holy books in the provision also seems to violate Indian secularism.

The reasons for selecting the four books under MS provision are unclear. The selection also keeps Jainism and Buddhism out of its purview. The underlying message of this entire exercise displays a disregard towards Jains and Buddhists who are 0.12%  and 0.16% respectively in population of Punjab (Census 2011), especially in light of Surpeme Court’s decision in Navtej Johar case, whereby rights of even the "minuscule minority" are protected under the Constitution (Roy 2018). Furthermore, this amendment gives sweeping powers to the state to make arrests. This amendment will also have ramifications for atheists and non-believers, who have a constitutional right to not agree to the beliefs and teachings of religious texts. This amendment can be used to subvert dissent and disagreements of Dalits in Punjab,  who comprise 32% of the total population. Their struggle for social justice and social emancipation has majorly involved challenging the notions of religions and religious texts.

This deeply authoritarian action violates the Supreme Court’s ruling in Abhiram Singh v C D Commachen whereby it held elections were to be a secular exercise which was to be kept separate from religion. The Court further held that under constitutional scheme mixing of religion with state power is not permissible … religion will not play any role in the governance of the country which must at all times be secular in nature … Functions of elected representatives must be secular in outlook and practice . The state, in recent years has witnessed various cases of scarilege, allegedly with involvement of previous government (Hindustan Times 2018). The timing of the provision, and its legislative history show that the same is a "recipe for competitive political mobilisation" rather than attempt at peace (Mehta 2018).[11]

Conclusions

Engagement with religion invariably necessitates fair criticism of religion and its practices. Judicial interpretations of Section 295A and its use by state machinery have narrowed down the scope of this meaningful engagement with religion, and thus the section undermines the reformative approach towards religion.