Anti-Blasphemy laws in Contemporary India: First Research Paper Issue.

The theory of blasphemy has been derived from the English world and has transgressed into India in its sub-optimal periods of British imperialism. Religious belief and freedom of speech & expression are considered separate entities in plural and accommodating democracies, but blasphemy is the point of convolution of the two. In light of religion and freedom, James Madison, the father of the American constitution, in his speech in the Virginia Convention (1785) stated:

“While we assert ourselves a freedom to embrace and observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom is abused, it is an offence against God, not against man: To God therefore, not to man, must an account of it be rendered.”[1]

He went ahead to promoting religious tolerance and was seen as the few ideals of religious accommodation. Reflecting his thoughts in here, Shoab Daniyal, in his article states that, ‘our founding fathers awarded India a fine constitution which, guaranteed its citizens “the right to freedom of speech and expression” without restrictions.’ But soon, with the outcry of communism and social anarchy, the then government was forced to curtail freedoms of such magnanimity by imposing reasonable restrictions[2]. From then, with the considerable advent of right-wing and conservative politics, the notion of liberty has eroded to mere stoical confinement of colonial legislations like blasphemy, sedition and hate speech.


            Before inferring the relation between freedom of speech, blasphemy and its legality, it is imminent to understand the latter through the lenses of religion, the rule of law and its present form of existence. To this extent, the paper will question the criminality of blasphemy laws in India and discuss alternatives within the constitutional framework for securing religious interests. For arriving at a more corroborated conclusion, the paper is apportioned into definite parts: i) Role of religion in blasphemy ii) Legal recourse and history iii) Contemporary basis of Blasphemy iv) Concluding remarks on anti-blasphemy laws, and v) Endnote: Blasphemy in the age of far-right conservatism.

I


Throughout Hinduism, rules derived from Manusmriti have regarded religion as two opposing dissipations of ‘dharma’ and ‘adharma’ with the former including the practice of religion, social justice and righteousness whereas the latter being impious irreverence to the brahmins and lack of social order[3]. Boundaries between the two were only based on human existence in society and caste systems in the demography but not of sacrilegious speech or irreverence. Misinterpretation of scripts, texts and divine principles though universal to all religions has in specific afflicted Islam more in a parallel structure. The Quran, for instance in verse 9:47, has only provided for punishment by god and has always preached forgiveness, righteousness and the practice of turning away from ignorance[4].

Leonard Levy believed Christianity to be a heterodox, protean religion which followed its path towards orthodoxy[5]. The Blasphemy Act of 1650 passed in the Rump Parliament and the Criminalizing of Blasphemy in 1697 provided for the protection of churches and the king[6]. The apparatus of religion was used to control society, help sustain the presence of the aristocracy in post-medieval Europe and to maintain church authority within the ruling class. It can thus be deduced that the three major religions of the world have been founded on the principles of freedom, acceptance of criticism and the theory of blasphemy being altered by man to benefit the priestly class. The course of blasphemy after and its arrival in colonial nations became a part of the culture of tolerant religions in the 20th century resulting in a continual violation of Human rights.

II


The first official recorded common law case on blasphemy was the Rex v Taylor case, where John Taylor was found repeating inflammatory statements whereby, he said, ‘Christ is a whore-master, a bastard and confound all your Gods.’ The court after the investigation found that Taylor was not a lunatic and he indulged in blasphemy with utter disregard to the religion. Post the finding, Chief Justice Lord Hale stated that, ‘such kind of blasphemous words were not only an offence to God and religion, but a crime against the laws, State and Government and therefore to reproach the Christian religion is to speak in subversion of the law.’ The court observed that Christianity is a parcel of laws in England and that churches hold authority in deciding the role of the king and lawmakers. The judgement saw the equation of religion with law and subservience of the either is punishable to a similar extent[7].

In 1732, Woolston in his book stated that the miracles of Jesus are only to be held as an allegory and not everything in the testaments should be taken in the literal sense. He was charged with deliberate vilification of Christianity and blasphemy. The court applied the Hale’s principle and concluded that his words were detrimental to the legal systems of the monarchy and was held liable[8]. The principle was also applied in the US case of People v Ruggles, where the Supreme court held that the fundamental laws here, were deeply rooted in Christianity and any abhorrent behavior against religion will have detrimental effects to the legal existence of the country[9]. The medieval periods in Europe and England had the most significant number of blasphemy cases, where most courts affirmed the Hale Principle and considered blasphemy as a crime against the entirety of the common law in the country[10].


However, in recent days, most modern democracies have reduced the scope of blasphemy, and some have invalidated its legal existence. The First Amendment of the US Constitution provided for the abolition of constitutional validation of any particular religion and its abstinence in providing the legislature any powers to alter free speech laws which then provided for the abolishment of blasphemy in the country. Furthering the contention, in the Lemon case, the lemon test provided for a law to be secular, such law must not be in support or disregard of any religion and laws should not interfere the beliefs of a religion[11]. In the United Kingdom, blasphemy was abolished in 2008, with the amendment to the Criminal Justice and Immigration act Section 79 which reads, ‘The offence of blasphemy …. under common law stands abolished’[12]. Post the abolishment in western countries, most South-Asian nations still loom within draconian anti-blasphemy laws and have in many instances violated human rights to protect the interests of the religious majority.




III


Section 295, 295A and (partly) 153A of The Indian Penal Code (1860) defines blasphemy and impiety in Indian law, with the former dealing with sacrilegious acts towards any object of worship and the latter dealing with blasphemy[13].

The earliest draft of the IPC only included Section 295, and the latter part (295A) was included by the 1927 amendment. The earliest dated case on blasphemy in Colonial India was the Queen v Imam Ali case (1887), where the court held that a cow is not an object of worship or sacred as it would include only animate objects. Then over the course, with increasing Hindu-Muslim tensions and after the show of protests during the release of the book, Rangila Rasul (pleasure-loving prophet) and the eventual murdering of the book’s author by two Muslims over hurting religious sentiment, the British, forced to stall such events had introduced Section 295A whereby it became a crime to insult religious sentiment in any show or manner and this stance has remained in the legal fray since then[14].
Moving forward, in Veerabadran Chettiar v Ramaswamy Naicker case (1958), the leader of the Dravidian Movement, Periyar, had announced his intention in breaking the idol of Ganesha (mud idol) and complied with such announcement. The complainant accused Naicker of using inflammatory words, insulting religious sentiments and professing hatred against the Brahmins. Justice Sinha in his judgement absolved the accused free of guilt and held that ‘Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions.[15]

In 1957, a five-judge bench was formulated to opine the legal validity of Section 295A arguing that it infringed one’s fundamental freedom of speech and expression. The court finally after endorsing all the views upheld the legal validity of the sections as:
The section only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order and this section is well within the protection of clause (2) of Art. 19 as being a law imposing reasonable restrictions.”[16]
The court held that an aggravated form of insult against religion is to inherently cause public disorder and is thus pertinent to uphold the constitutional validity of blasphemy. The court also believed that since religious rights are protected under Art. 25 & 26 on the basis of morality and public order, Section 295A of the IPC protects these rights by limiting any insult to religion under the protection clause of article 19. The appellant’s appeal was dismissed, and the court held that since the basis of blasphemy is defiance of public order he is to be liable.
However, in three years’ time, the court in Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia (1960), refined its earlier stance and held that the link between blasphemous or any form of instigating speech and public disorder must be proximate and not far-fetched. The court held that the belief that an act ‘is inherently done for disrupting public order’ is not valid and that the nexus between the instigating speech and the final result(public disorder) of such speech must be proximate and reasonable. The court heavily relied on Patanjali Sashtri J. who observed that all offences involve disturbance of public tranquillity but whether it affects public order is subject to the degree of the offence; hence the protection clause in Article 19 will apply only when the offence undermines the security of the state or its overthrowing and not for any other forms of public disorder. The court profoundly narrowed down the scope of restrictions from public order and tried demarcating the difference between public order, peace, and safety.[17]

In the year of 2008, the court in the Shreya Singhal v Union of India case held that Section 66A of the Information act to be unconstitutional as it violated the rights provided in Article 19 and that the section cannot be excluded using the protection clause. Justice Nariman had explicitly stated that any provision of law must strictly adhere to the rights provided and if not, must come within the ambit of the restrictions in its protection clause. This judgement though not relatable to blasphemy had validated the earlier view and made stringent the misuse of such provisions.

Recently, the state of Punjab inserted Section 295AA in the IPC providing for life imprisonment if any damage/insult is explicitly done against objects of only the four major religions of the state[18]. The new amendment was a clear indication of religious favouritism with mere irreverence to god being blasphemous and the authority to decide if the act is blasphemous or not being passed over to religious groups rather than the court of law[19]. This decision raises serious doubts about the democratic set-up of the state and pushes the state to a theocratic position as was the case of Pakistan with the blasphemy laws passed during the dictatorship of Zia-ul-Haq.

The arrest of Kikku Sharada for ‘mimicking’ godman Ram Rahim, public outcry and uproar against the movie PK and the fleeing away of Samal Edamuruku for speaking against Christian beliefs raise severe questions of tolerant progressions of blasphemy in India. Post-independent India had remained a liberal democracy with the courts making it stringent to file a suit under blasphemy, but with the advent of new-age politics and communalism, legislative changes have pushed away the significance of relevant precedents. If honest attempts to try removing superstition and prejudice is criminally liable, then the progression of democracy is highly limited to mere religious beliefs and its evolution stunted within[20]. However, drawing attention to the other side, the Danish Muhammad Prophet cartoons is a prominent example where a Danish newspaper published cartoons of the prophet with bombs in his turban and his association with war-mongering folks. The event led to protests, terror attacks and killings of more than hundreds of citizens across Europe. Such events, although minuscule in number have questioned the contention of free speech prevalence over the insult to religion. Complete dissociation of blasphemy and its existence may lead to increased hatred against a specific religion, and its practice may be detrimental to the stability of democracy[21].

IV

Though India was the earliest country to recognise anti-blasphemy laws as universal to all religions, the misuse of such laws has withered the democratic set-up in the country. The courts have strongly raised opinions in disbelief of anti-blasphemy laws, but its existence is still independent of constitutional scrutiny.  India’s constitution has provided for separation of religion from government machinery, prevention of discrimination on the basis of religion and the freedom to express one’s views and provide criticism. If it is illegal to talk against a religion, criticise its practices and bring into light the existence of fake godmen, there exists a clear infringement of the right to free speech and expression. To conclude upon this, the final pointer will be the clash between the right to free speech and the freedom to practice and propagate any religion, whereby it becomes imperative to differentiate ‘insult’ and ‘criticism.’ The right to insult a religion must not be vouched for, but the right to criticise the practices of any religion must be complied with.

It is crucial for the legal system to cherish and respect the values of the democracy and also to protect the interests of all citizens. In this effect, to help allow a progressive democracy, the blatant ending of anti-blaspheme criminality is not the solution, but the need for balance between criticism and intentional insult of religion is needed. It thus becomes the primary duty of the court of law to determine the blurred line of difference between criticism and insult and such courts must hold the gravest of insults as being liable under the basis of blasphemy. Complete banning of blasphemy would lead to intentional insults by religious zealots and this would in turn result in a catastrophic chain of fighting and killing. To prevent such happening, it is to be noted that banning of anti-blasphemy laws is not the option but the limiting of such laws to gravest forms of religious insult is.
V (Endnote)

India has been existent as a liberal democracy since her independence. But, the liberal position has been strongly threatened with the rise in right-wing politics in the country. This has led to enormous damage done to the marginalised and the powerless. Authors who talk against such acts are threatened and detained in police stations with FIRs filed under Blasphemy sections. But on the same hand, blasphemous speech by religious groups and heads have shocked the legal system. Such speeches have been targeted at minority groups and have resulted in hurting religious sentiment altogether. Going by this, blasphemy cannot be simply done with in a country with opposing religious intolerance and it is for this regard vital for us to have a balanced use of such laws in the country.


[5] Leonard Levy, Blasphemy: Verbal Offense Against the Sacred, from Moses to Salman Rushdie 32-36 (1ed. 1995).
[14] Steve Vertovec Ceri Peach, Islam in Europe: The Politics of Religion and Community, 118 (Ed. 1 1997).
x

[2] Daniyal, S. (2018). Why India’s founding fathers curbed free speech. Quartz India (20 Oct. 2018) https://qz.com/india/326318/why-indias-founding-fathers-curbed-free-speech/.
[3] Wendy Doniger (2015). Prelude to Censorship: The toleration of blasphemy in ancient India. Univ. of Chicago  https://divinity.uchicago.edu/sightings/prelude-censorship-toleration-blasphemy-ancient-india (Last visited Oct 21, 2018).
[4] Yusuf Ali. Verse 7: 199, Quran, University of Leeds. http://corpus.quran.com/translation.jsp?chapter=7&verse=199] (Last visited Oct 21, 2018).
[6] The Rump Parliament, BCW Project, http://bcw-project.org/church-and-state/the-commonwealth/rump-parliament.
[7] Elliott Visconsi, The Invention of Criminal Blasphemy: Rex v. Taylor (1676), Univ. of California Press, https://www.jstor.org/stable/pdf/10.1525/rep.2008.103.1.30.pdf, (30-33) (Last visited Oct 21, 2018).
[8] Rex v Woolston, [1732] EngR 87.
[9] People V Ruggles, 8 Johns. 290 (1811).
[10]AH Wintersteen, Christianity and The Common Law, American Law Register,  https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4290&context=penn_law_review. (Last visited Oct 21, 2018).
[11]Peter Jones, Blasphemy, Offensiveness and Law, Cambridge University Press,  https://www.jstor.org/stable/pdf/193476.pdf (128- 133). (Last visited Oct 21, 2018).
Lemon v. Kurtzman, 403 U.S. 602 (1971).
[12] Criminal Justice Immigration Act, section 89, 2008 Act of Parliament, 2008.
[13] Indian Penal Code, 1860, Section 295, Acts of Parliament, 1927.
[15] Veerabadran Chettiar v Ramaswamy Naicker, (1958) AIR 1032.
[16] Ramji Lal Modi v State of UP, (1957) AIR 620.
[18] Indian Penal Code Amendment Bill 2016, Indian Parliament Act, 74 of 2016.
[21] Lasse Lindekilde, Per Mouritsen et al. The Muhammad Cartoon Controversy in Comparative Structure,
DOI: 10.1177/1468796809337434. (Last visited Oct 21, 2018).

No comments:

Powered by Blogger.