Explained | The need to distinguish between blasphemy and hate speech

What is the history of Section 295 (A) of the Indian Penal Code? How should “blasphemy” be dealt with in law as opposed to hate speech?

What is the history of Section 295 (A) of the Indian Penal Code? How should “blasphemy” be dealt with in law as opposed to hate speech?

The story so far: While Mohammad Zubair of New Alternatives was arrested for tweeting a still image from a movie with a religious context attached, BJP member Nupur Sharma fled without any enforcement action being taken against her for her inflammatory remarks on a TV show during prime time. Have the shortcomings of freedom of expression laws been illustrated in these cases? What regulations govern criticism of hate speech?

What is the history of Section 295(A)?

As for the laws in India, there is no formal legislation against blasphemy. The closest equivalent to a blasphemy law is Section 295(A) of the Indian Penal Code (IPC), which punishes any speech, writing or sign that “with premeditated and malicious intent” insults religion or religious beliefs of citizens with a fine and imprisonment for up to three years.

The history of IPC Section 295(A) dates back 95 years. In 1927 a satire was published which had obscene parallels to the Prophet’s personal life. It was indeed very offensive to the Muslim community, but the former High Court of Lahore observed that the author of this cannot be prosecuted as the writing did not cause any animosity or hostility between the communities. Thus, the offense did not fall under Section 153(A), which dealt with the maintenance of peace/public order. However, this incident gave rise to a demand that there be a law to protect the sanctity of religions, and so, Section 295(A) was introduced.

The legality of section 295(A), which had been challenged in the Ramji Lal Modi case (1957), was upheld by a five-judge panel of the Supreme Court. The Supreme Court held that while Section 19(2) permits reasonable limits on freedom of speech and expression in the interests of public order, the penalty under Section 295(A) deals with the aggravated form of blasphemy committed with the malicious purpose of offending the religious sensibilities of any class.

How has the legislation been interpreted?

In the end, the Supreme Court redefined the test it established in the Ramji Lal Modi case. He decided that the link between speech and disorder should be like a “spark in a powder keg”.

In the case of Superintendent, Central Jail, Fatehgarh vs. Ram Manohar Lohia the Supreme Court said the nexus between the speech delivered and any public disorder caused as a result should have a close relationship to recover IPC Section 295(A). In 2011, it concluded that only speech that amounted to “inciting imminent unlawful action” could be punished. That is, the state must reach a very high bar before using public unrest as a justification to suppress the expression.

Should there be a difference between blasphemy laws and hate speech laws?

The wording of section 295(A) is considerably overbroad. It cannot be said that a deliberate disrespect for religion or religious sensitivities necessarily amounts to incitement. The Supreme Court has repeatedly stated that the purpose of hate speech laws in Section 295(A) may be to prevent bias and ensure equality. Unfortunately, there is a huge disparity between this interpretation and the actual wording due to which the law is still exploited at all levels of administration.

Insulting religion or religious figures can be challenged or condemned, but it should not be legally prohibited or prosecuted. This is because hate speech laws are based on the essential distinction between criticizing or ridiculing religion and encouraging prejudice or aggression towards individuals or a community because of their faith.

Are cases of hate speech increasing?

According to data provided by the National Crime Records Bureau (NCRB), there has been a huge increase in recorded cases promoting hate speech and fostering animosity in society. The data indicates that while there were only 323 recorded cases in 2014, it had risen to 1,804 cases in 2020.

However, it can also be due to the sharp turns in the dynamics of our current society. Section 295(A) is now generally used to penalize religious dissent, satire, and any comedic content with religious references.

Fake cases of 295(A) have been thrown on some web series like Tandavwhich would have offended religious emotions. According to the FIR filing, the series allegedly presents Hindu gods in a demeaning manner.

There have also been incidents where citizens performing stand-up comedy have been arrested solely because they had religious references in their script.

The shortcomings of free speech rules are further illustrated in the previously mentioned cases of Mohammad Zubair and Nupur Sharma.

These cases show how regulations fail to distinguish between criticism and premeditated hate speech. Failure to articulate these distinctions diminishes the section’s fair use and makes it more difficult to define and punish the actual crime of hate speech.

How to deal with cases of blasphemy?

Blasphemy laws that prohibit religious criticism in general are incompatible with the principles of a democratic society. In a free and democratic society, there should be no filtering of speech and dissent. The only workable solution that sits on the thin line of protecting the faith and challenging hate speech should be to keep blasphemy in the statutes but decriminalize it.

Kartikeya and Kamya read law and are based in New Delhi

THE ESSENTIAL

The legality of section 295(A) was upheld by a five-judge panel of the Supreme Court. The court said the penalty under Section 295(A) deals with an aggravated form of blasphemy committed with the malicious intent of offending any religious sensibility.

Insulting a religion can be challenged but should not be legally prohibited. This is because hate speech laws are based on the essential distinction between criticizing religion and encouraging prejudice against individuals because of their faith.

Blasphemy laws that prohibit religious criticism in general are incompatible with the principles of a democratic society.

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