Context

The debate surrounding the comments by some political spokespersons has put the spotlight on the need for anti-blasphemy law which deals with criticism of or insults to religion.
Presently India does not have a formal legal framework for dealing with hate speech concerning any particular religion.

What is Blasphemy?

Blasphemy is one of the world’s most abused law when it comes to suppressing the voices of communities, rationalists as well as at many times scientists.
It is often regarded as a reasonable restriction over the freedom of speech and expression.
It many a times is also regarded as a hindrance in the development of a scientific temper among people.
It also a methodology of imposing the religious beliefs and virtues of one community over other.

A backgrounder

Being a society with mostly Hindu population, India never saw a legislation against blasphemy till 1927.
Prior to independence, in the fog of communal tensions, a Pamphlet was published by Mahashay Rajpal.
It sparked controversy, with the members of Muslim community seeking punishment for Rajpal as it was a violent attack over the religious sentiments of Muslims.
Eventually Rajpal was acquitted because of the lack of any blasphemy law in India, only to be murdered in 1929.

Beginning of legislation

The British colonial government eventually in the time of need, amended the Indian Penal Code, 1860 and added the Section 295(A) in the year 1927.
The Section even after the partition of India, is present in the Indian Penal Code, 1860, as well as in Pakistan and Bangladesh.

What is Section 295A of the Indian Penal Code (IPC)?

Section 295A, define the contours of free speech and its limitations with respect to offences relating to religion.
It prescribes punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
It calls for imprisonment of either description for a term which may extend to [three years], or with fine, or with both.
It has been invoked on a wide range of issues from penalizing political satire and seeking bans on or withdrawal of books to even political critique on social media.

Chapters to penalize religious offenses

Section 295A is one of the key provisions in the IPC chapter to penalize religious offenses. The same chapter includes offenses to penalize:

Damage or defilement of a place of worship with intent to insult the religion (Section 295)
Trespassing in a place of sepulture (burial) (Section 297)
Uttering, words, etc, with deliberate intent to wound the religious feelings of any person (Section 298) and
Disturbing a religious assembly (Section 296)

Frequency of use

The state often invokes Section 295A along with 153A of the IPC, which penalises promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.
It acts prejudicial to the maintenance of harmony and Section 505 of the IPC punishes statements conducing to public mischief.

What about online hate speech?

In cases where such speech is online, Section 66A of the Information Technology Act was invoked.
However, in a landmark verdict in 2015, the Supreme Court struck down Section 66A as unconstitutional on the ground that the provision was “vague” and a “violation of free speech”.
However, the provision continues to be invoked.

Issues with such laws

The broad, vague terms in the laws are often invoked in its misuse.
Lower conviction rates for these provisions indicate that the process — where a police officer can arrest without a warrant — is often the punishment.
Critics have pointed out that these laws are intended for the state to step in and restore “public order” rather than protect free speech.

Voice for Anti-Blasphemy Laws

(1) Sacrosanctity of Religions

Most of the religions establish in the mind of people, the sacrosanctity of God as well as the religion itself.
Scholars in the past have held that the God is above and beyond the scope of any question or doubt.
Acts such as impunity, apostasy and blasphemy have been held to be grievous offense, penalty of which at many times can be death.

(2) Enforcement of Religious Sanctions

For example in Afghanistan the Constitution declares Islam to be the official “religion of the state”.
It goes on to stating that no law can be contrary to the beliefs and provisions of the sacred religion.
For issues on which the Constitution and Penal Code are silent (including conversion and blasphemy), courts rely on Shari’a.

(3) Stable Governance

Sometimes religion is not a purely personal affair but is the foundation of the state, a vector of spiritual civilization affecting not only the feeling and thoughts, but also the actions of human beings.
Hereby it can be understood that Religion affects the actions of human beings, thus requires a protection legally as a moral & social value that drives a human, leading to a stable society and better governance.
The responsibility to protect religious sentiments of others later transforms into a legal duty when the state recognizes the Right to Religion.

(4) Reasonable Restriction for Harmony

Most of the countries implement Blasphemy laws as a reasonable restriction for the maintenance of communal harmony.
Not to forget the fact that the Section 295(A) was introduced in the IPC, 1860 to put a hold on a series of communal violence provoked by the use of blasphemous statements.
Thus the British governments’ aim of introducing 295(A) was to put the reasonable restriction of the freedom of speech for the maintenance of order in the society.

Issues with Anti-Blasphemy Law

Throughout the world there have been numerous oppositions against blasphemy laws which at points have succeeded at points have not.

(1) Lack of a definition for term Religion

Blasphemy has been described as irreverence towards God or Religion, however the term Religion itself lacks a proper definition for itself.
Belief in God which may unite Judaism, Islam and Christianity, is clearly insufficient as a definition, because some religions, such as Hinduism are arguably, Polytheistic.
Definition that depends upon a belief on God or Gods would similarly fail to include Buddhism, as it doesn’t include belief in a God.

(2) Freedom of Religion

Many jurisdictions have tried to define the term religion through commentaries or judgments.
The Universal Declaration of Human Rights in its article 18 also protects Atheistic and Non- Theistic views in order to broaden the term Religion.
If the term Religion is broadened enough to include Atheism, then it also comes under the purview of Freedom of Religion and the practicing Atheism may fall under the category of Blasphemy at many instances.
Apart from Atheism, many religions also come a lot of time in conflict with other religions, at many times which may lead to blasphemy.

(3) Curb on freedom of speech and expression

Freedom of Speech and expression is a fundamental right in the constitution of various countries including India and also is a Human Right.
The International Covenant on Civil and Political Rights in its article 19 states that everyone shall have the right to freedom of expression.
This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice and the right to hold

(4) A Tool for Oppression

Blasphemy for a very long time has been seen as a tool for the majority to oppress the minority. One of the best example for it is in Pakistan and the Saudis.
Their laws puts immense restrictions on non-Muslims and slightest defiance invites sentences such as beheadings.
The ratio of Muslims to non-Muslims among blasphemy defendants illustrates the extent to which these laws are used to persecute religious minorities.

(5) Promotes Violence

The allegations of blasphemy at multiple occasions leads to violence and extremism and have been used by vigilante groups and non-state actors to justify and instigate incidents of interreligious violence.
The Constitutional Court review of Blasphemy laws in Indonesia led to mass protests with hard lined groups threatening the petitioners.
The petitioners had asserted that the law had played an instrumental role in creating sectarian tensions and religious conflict rather than preventing them.
This has been the umbrella under which various militant groups attack, burn and destroy others.

(6) Hurdle in development of scientific temper

A large number of incidents have taken place across the world where a rationalist has faced a threat for questioning religious doctrines and has been persecuted under the blasphemy laws.
It is to be noted that astrologer Galileo Galilei was put under house arrest for supporting Heliocentrism as opposed to Geocentrism in the Bible.
These were some of the arguments against Blasphemy laws in various countries, which may or may not applicable in other countries as well.

India’s considerations for such laws

(1) Nature of the State and Society

It is not the business of the government to supress real or imaginary attacks upon a particular religious doctrine.
India is a secular state by the virtue of its constitution. A secular state is neither a supporter of religion nor irreligion.
However the imposition of a penal provision that acts as an anti- blasphemy law is a biasness against the irreligious, as discussed earlier the practice and propagation of irreligion may amount to blasphemy for few religions.

(2) Violation of Freedom of Speech and Expression

Throughout the history of Independent India, the section has been defined as a reasonable restriction over freedom of speech to secure public order.
In the Ramji Lal Modi case the court had held that the Constitution in Article 19(2) permits the state to restrict freedom of speech and expression in interests of public order.
In the light of above state case laws, Free speech gets a wider scope.
However, in practical approach, the idea of an imminent lawless action makes it very difficult in the case of Blasphemous acts.
It is quite unpredictable as to what statement containing elements of blasphemy has the capability to spark off violence.

(3) Promotion of Violence & Victimhood

The IPC sections also incite the display of wounded feelings. More than this, the law encourages or generates specifically violent displays of wounded feelings.
The provisions main objective was to prevent violence.
Say, a ban on a book under Section 295(a) requires a strategy and being violent is the first part of it as it is the clearest proof that the sentiments of a class of citizens of India has been outranged.

(4) India’s International Responsibility

As stated earlier, the International Covenant for civil and political rights in its article 19 makes it a duty of every country to ensure its citizen’s right to freedom of Speech and expression.
It also states that any sort of blasphemy law is a clear violation of the Article 19.
Hence, since India has ratified the above mentioned Covenant it is its duty to abolish any such laws

(5) Question of Malice

The section 295 (A) has put emphasis only on those act which are done with an element of malice in it, punishable.
However what is to be looked into is the fact that, when it comes to the malice, proving it is a complex and difficult issue, and in India the disposal rate of cases are very slow.
Most of the times, such cases take a very long time & surpass the duration of the punishment itself.
The element of Malice was added to make sure that any necessary or constructive criticism doesn’t get restricted.

Way forward

Laws should be made with an objective to punish miscreants and curb their objective and not to protect the religion from them.
One and only one sustainable solution to this is to make the society tolerable, and for that education is the key.
This will provide for a society which will respect the right to express thoughts and right to speech and at the same time, respecting all religions, minorities and their beliefs also.
It has to be kept into mind that the concept of blasphemy was a concept developed and fit for a pre-modern society, led by a government that is not secular and democratic.

Conclusion

To conclude, these words by Ludwig Feuerbach are appropriate, “God is not liable to offence; and even if he were offended, He would not under any circumstances wish the punishment of his offenders.”
Public order only can be censored. Hereby the only incitement that has to be there is an incitement of violence. This is where the laws of Blasphemy and hate speech differs.
However, blasphemous statements are that doesn’t contain elements of hate or violence is left at the level of tolerance for a section of society.
This becomes even weaker due to the presence of Blasphemy laws.

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