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Art and Expression shalt respect Religious Sentiments

Written by: I am Vinay Ranjan from Symbiosis Law School, Pune
Constitutional Lawyers in India
Legal Service
  • Feb, 2006 12 cartoons on Islam and prophet Mohammad depicting him wearing a turban which turns out to be a bomb with a lit fuse and carrying message starkly and without qualification that Islam is a terrorist and sexiest religion in the world was published on one of the famous Danish newspaper- “Jyllanch-Posten”

    • Feb 2006 the movie “The Da Vinci Code” was released in India which was based on the novel of the same name and which raises a very controversial and sensitive matter of Christian faiths that Christ and Mary Magdalene -one of his disciple were married and began a bloodline that continued through the centuries. It depicts Christianity as the biggest cover-up in history.

    • Feb2006, M.F.Hussain's painting were displayed at the Asia house, UK. The Poster displayed here mainly depicts the Mother India as naked and the Hindus deities (Sita, Lakshmi, Saraswati) as nude.

    Expression of Art should be like a lily flower related to the ground, takes the water from ground, buds flower in the open atmosphere and purify the whole world but is still related to ground. - - Swami Vivekanand

    Needless to say the three incidents mentioned above doesn't have faith on vivekanand's saying. The debate on the limitation of presentation of art and expression and the people's sentiments on the religious matters also become complex due to the fact that both of these claims made by individual, if traced have the origin in the natural rights of human. A person is said to be born with these right as they are subjected to them merely because he is a human, irrespective of his caste, creed, and the status to which he belong. These rights are to help him to enhance his artistic skill on the one hand and freedom to practice and belief in a religion on the other hand and are generally inscribed to help him grow his natural own. Thus often way it is hard to decide which sides to favour in case of a dispute.

    Right of Expression Vis--Vis With Freedom of Religion And Belief

    The most important international legislation on the freedom of religion or belief is A.18 in the United Nation's International Covenant on Civil and Political Rights (CCPR) from, 1966.CCPR A.18 is built upon A.18 of the Universal Declaration of Human Rights (DHR) from 1948.

    A.18 of CCPR guaranteed that everyone shall have the right to freedom of thought, conscience, and religion and this freedom will only be subject to the such limitation as are prescribed in by the law and are necessary to protect public safety, order, health or morals or the fundamental right and freedom of others. Seen together with the General Comments the phrase “religion” covers all faiths in supernatural powers, traditional and untraditional, while the phrase “ belief” primarily refers to non-religious and quasi-religious philosophies of life such as atheism, agnosticism and humanism.

    The Indian Constitution similarly under A.25 guaranteed to every of its citizen freedom of conscience and the right freely to profess, practice and propagate religion. The term religion is not defined in the Indian constitution. However the Supreme Court has considered this in Comm. HRE v L. T. Swamia AIR 1954 SC282 & S. P. Mittal v Union of India AIR 1983 SC1 “ A Religion has its basic in a system of belief or doctrines which are regarded as those who profess that religion as conducive to their spiritual well being.” Thus the constitution endeavors to protect the person's belief on his religion.

    Right to Freedom of opinion and expression on the other hand is guaranteed under A.19 of the International Covenant on the Civil and Political Rights, 1966. It thus ensures every person to express his opinion on the one hand while restricts the state machinery in taking any measures to restrict or prohibits them in doing so.

    In India this freedom of expression is guaranteed under A.19 (1) of the Indian Constitution, which guarantees to all its citizen the right to freedom of speech and expression subject only to the condition prescribed under A.19 (2) i.e. state can restrict the scope of this right on the ground of security of state, friendly relation with foreign states, public order, Decency and morality, contempt of court, defamation incitement to offence and integrity and sovereignty of India.

    In Lowell v Griffin (1939) 303 US 444 Freedom of speech and expression includes the expression of one's ideas through any communicable medium or visible representation such as gesture, signs, and the like.

    In Romesh Thapar v State of Madras AIR 1950 SC 124,SC states that freedom of expression also connotes publication and thus the freedom of press is included in this category.

    In Express Newspaper Ltd. v Union of India AIR 1958 SC 578, SC held that since freedom is for action and action is for an end, the positive kernel of freedom lies in the ability to achieve the end; to be free means to be free for some accomplishment. And this implies command of the means to achieve the end. Unless the equipment necessary for effective action is at hand, unrestraint may be a mockery of freedom.

    Restriction on freedom of expression

    Of all the pains in this world the pain which hurt most and which last long is the “religious pain” that is felt by believers of every cast when what they believe in it is insulted. That is more so because religion and belief in religious deities and rituals is more a matter of blind faith then logic. And when the matter comes in Indian context the degree of hurt reaches to its peak. Here people are ready to die and ready to kill anybody merely on a rumor that there is a threat on there religion. Be it a Hindu, a Muslim, a Sikh or a Christian everyone is seemed to be conscious that there religious beliefs is not challenged by any other cast. The situation become complex when anybody intentionally or mistakenly does any act that anyhow affects some sentiments of any religion and then the dirty play starts. People forgets that they are human first and there basic duty is to practice brotherhood and uplift humankind then fighting for their age-old religious sentiments.

    The potent source of restriction on freedom of expression is its criminal law, which deals with offences against religion and punishes certain kind of expression which may be loosely called 'hate-speech', speech or writing which promote enmity, hatred, ill-will, or disharmony between different religious, racial or linguistic groups or castes or communities are prohibited by S.153A of the Indian Penal Code. A related provision, S.153B prescribes the making or publishing imputation or assertion which imply that” any class of person cannot by reason of their being members of any religious racial, language or regional group or caste or community, bear true faith and allegiance to the constitution of India as by law established to uphold the sovereignty and integrity of India.”

    A special Bench of the Bombay High Court in Gopal (1969)72 Bom LR 871(SB) has held that under this section it is enough to show that the language of the writing is of a nature calculated to promoted feeling of enmity and hatred for a person must be presumed to intend to the natural consequences of his act.
    These section which were enacted by the British during colonial rule were not inspired by any antipathy to free speech as such. The rationale underlying the provision is the maintenance of public peace and tranquility in a country like India where religious passion can be easily aroused and inflamed.

    IPC also deals with offences relating to religion under a separate chapter, i.e. Chapter XV(S.295-298). The crux of the chapter being to prohibits any kind of act which hurt some religious sentiments and promotes any further action resulting against the public order.

    S.298 prohibits the utterance of any word or any sound or making any gesture by any person with the deliberate and malicious intention of wounding the religious feeling of any person. S.295A protects the religious belief of a class as a whole from the deliberate and malicious intention of anyone to outrage the religious feeling of the class.

    The background and history of S.295A, which punishes insult to religion, are interesting. It was enacted in 1927 after the judgment of the Lahore High Court in what is popularly known as the Rangila Rasool case. A tract, Rangila Rasool was published in which there were offensive reference to the Prophet Mohammad's life The High Court took the view that the prosecution which was launched under section 153A was not legally sustainable because the writing could not cause enmity or hatred between different religious groups though it was certainly offensive to the Muslim Community. However it is different that the man who wrote Rangila Rasool and portrayed the Prophet as an immoral person was murdered in the court.

    The constitutionality of S.295A was questioned before the Supreme Court in the case of Ramji lal Modi v state of Uttar Pradesh AIR 1957 SC620. The SC upheld its validity on the ground that the restriction imposed on freedom of expression by the section was reasonable and was covered under the head of “public order”. The reasoning of the court was that the section didi not penalize any and every act of insult to religion or the religious belief of a class of citizen but was directed to acts perpetrated with the deliberate and malicious intention of outraging the religious feeling of a class of citizens.

    However the courts in India have tried to balance the values underlying freedom of expression with the maintenance of peace and order. The trend of the decision is that criticism of a religion and religious belief is permissible it does not descend to vile or vituperative abuse of any religion or pts founder. One may legitimely criticize the tenets of any religion and characterize them as illogical or irrational or historically incorrect. But it is not permissible to condemn the founder of any religion as venerates or immoral person or frauds or charlatans.

    Iura inventa metu iniusti fateare necesse est

    'Law was brought into the world; says Hobbes, for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt but assist one another and join together against a common enemy.'

    The object of art is not to deprave or corrupt morals but to elevate the mind —M Nasrullah, 1954 (Akbar Padamsee case). Freedom of expression certainly permits criticism of religious belief. It does not confer a fundamental right to abuse any religion or its founder. If broadly seen it is not the dispute that causes hatred it is hatred that perpetuates the dispute. So why the hatred? The underlying cause is religion. Priests are the self-appointed agents of god. To establish authority they stress on rituals. Rituals sharpen religious division. The solution doesn't lie in discarding religion but in rediscovering it. While propounding one's religion one have to see the rights of the other to express themselves and mere comment on the religion should not be treated as any threat to the religion. While on the other side a person while practicing his right of expression must keep in mind the sentiments of other people.

    1. Bulls Eye, Rajenda puri, Outlook March 06, 2006.
    2. How the court defend art, Outlook, May05, 2006.
    3. The ideology of piety, Michael Neumann.
    4. Right to freedom of expression and protests, Soli Sorabjee.
    5. Indian penal Code, Ratanlal and Dhirajlal.
    6. Interpretation and Enforcement of Fundamental Rights, D.J.De.
    7. Holland on Jurisprudence, N.R Madhavan Menon.

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