MISUSE OF SECTION 295-A OF IPC: A POTENT WEAPON

This article has been authored by Roopal Dhoot, a second year student at ILS Law College, Pune.

Rangila Rasul is a book based on the personal life of Prophet Muhammad. The content of the book was objected to by some minority communities, causing a death threat to its publisher. The objection was regarding explicit content about their founder and was stated as an attempt to insult Prophet Muhammad. The publishers were arrested initially, but later they were acquitted due to the lack of legal basis.

It would be hard to believe that this incident dates back to the 19th century and a century gap ahead here we are following the same “defect legacy”. Today in the 21st-century, humans might have the whole world at their fingertips, but sentimentally and religiously, we are still stuck on that broken, inaccurate clock. Because very recently when the political satire series “Tandav” was released on an over the top (OTT) platform, more than three FIRs were registered against the cast and the makers. The makers approached the Apex Court for interim protection, but the Court refused to grant the same and asked them to approach High Court for anticipatory bail. Even after the fact that all the objectionable scenes and dialogues were deleted and an unconditional apology was given. The Court plainly allowed the clubbing of FIRs but refused the prayers to quash the FIRs.

One of the common element in both the cases is Section 295-A of the Indian Penal Code (IPC), which could not be found in the original draft of Indian Penal Code 1860 because it was inserted after the incident of a book “Rangila Rasul”. The Muslim Community of then undivided India demanded a specific law to protect their religious sentiments and the British Government duly obliged by inserting Section 295A of IPC.

Section 295A of IPC talks about deliberate and malicious acts, intended to outrage the religious feeling of any class with the intention of insulting its religion or its religious beliefs.

Essential ingredients of Section 295A IPC are:

● Deliberate and malicious intention of outraging the religion of any class of the society.

● By words or by signs either written or spoken or by visible representation attempts to insult the religion or religious feeling.

The punishment for such an act is imprisonment upto three years, or fine, or both.

It is important to note that section 295A IPC is a cognisable, non-bailable, and non-compoundable offence. It means the police can register an FIR without even any prior judicial oversight. The complaint can be lodged anywhere in the country at the instance of purportedly aggrieved complainants.

Section 295A IPC falls under the category of “reasonable restriction” of Article 19(1)(a) which talks about freedom of speech and expression. This means no person should use this Fundamental Right to hurt the religious sentiments of any class and if committed, there is hardly any scope for relaxation of punishment for this offense.

The discourse on religion in India has become increasingly common nowadays. A news headline pops up every other day that the cinematic depiction and the action of the actor(s) have outraged the religious sentiment of the particular group. In India, there is a lot of intolerance for those who are even engaged in bonafide criticism of certain religious practices, such as cinema or comedians. These groups are using Section 295-A IPC as a sword to cut down anyone who offends them. There are often these self-styled godman who try to blindfold the society. And whosoever tries to open the eyes of such people, they try to reprimand and condemn such a person with the help of section 295A.

We recently saw the unfortunate case of comedian Munawar Faruqui, where the well-recognized principle “bail is the rule and jail is the exception” was ignored. On the first day of the New Year, a stand-up comedy show by Munawar at Indore’s Munro cafe was interrupted by the complaint of the chief of a Hindutva group. The Indore police arrested Munawar and few other artists on the basis of oral evidence. The complainant claimed that they have overheard the jokes which Munawar was going to crack. They were imprisoned only on the basis of the oral evidence by some vigilante who had no concrete evidence to support his claim. The Police officer, instead of dismissing the complaint, was very pleased by the complainant and appreciated their alertness. Even the Madhya Pradesh High Court did not grant interim bail.

All these instances really make us question the constitutionality of section 295A IPC. To understand the scope of the article these are some important judgments:

In the landmark case of RamjiLal Modi v. The State of U.P., the Supreme Court held that section 295A IPC does not penalise any and every act of insult. Only those acts can be penalised which are perpetrated with the deliberate and malicious intention of outraging the religious beliefs. Those aggravated forms of insult intend to disrupt the “public order”.

In the case The Secretary, Ministry of Information and Broadcasting v. Cricket Association of Bengal, the Supreme Court has widened the scope of Fundamental Right of speech and expression to include the right to educate, inform and entertain and the right to be educated, informed, and entertained. The former is the right of the telecaster and the latter is of the viewers.

All these judgments point out one thing that the Court has upheld the right to free speech to a large extent. But the main problem lies with the enforcement of such law by the enforcement officers. Police can arrest anyone upon mere suspicion and can act wrongfully as the Indore police did in Munawar’s case. It not only increases the possibility of abuse of power by the police but also curbs one’s freedom of speech and expression.

It makes one thing crystal clear that having religious affinity should be acceptable but blindly believing anything in the name of religion should be strictly unacceptable. The main motive behind implementing this law is to protect the religion and religious beliefs of people from any malicious and deliberate acts of provoking religious outrage. But now this law is being used for completely different purposes than what it has been meant to be used for. In the current scenario, not only the threat of large fines but also the way these vigilante and hypersensitive people behave is a deterring factor for various artists and publishers to contest in this hate speech litigation. Despite the number of difficulties associated with the Section 295A IPC, it could be much clearer than it currently is if Parliament took the initiative to amend the law to make it more justifiable:

Firstly, it should explain the term religion though it appears no less than eighteen times in the entire chapter on “offenses related to religion” of IPC. The Constitution fails to explain the definition of religion. In the case SP Mittal v. Union of India, the Supreme Court instead of providing clarity upon the topic further muddies the water, where a constitutional bench held “religion to be a term which cannot be defined”.

Secondly, prior judicial consideration must be undertaken of any complaint lodged under this provision.

Thirdly, the aggravated insult must have the potential to disrupt the public order as upheld in the judgement of Ramji Lal Modi v. The State of U.P..

These amendments will definitely be useful when next time any other comedian and satirical series is wrongfully condemned. Merely expressing one’s opinionated comments on someone’s belief which holds no strength to disrupt the public order is very much part of our free speech and expression, and to limit our fundamental right just because it conciliates a few high-strung religious groups is not fair to our democratic rights. Religion in a country like India acts as a driving force for struggles, conflicts, and reforms. Engagement with religion always necessitates fair criticism of religion, which should be accepted with open minds. Efforts have to be made to update the laws and make them more absolute so that free speech and religious beliefs can coexist harmoniously