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An Analysis of Blasphemy Laws in India and Abroad

Blasphemy originated from a Greek word meaning to speak evil.  It also has its roots in Judeo-Christianity culture where blasphemy is referred to as all the acts which involve verbal abuses or offences against sacred values and sentiments.

In Catholic theology, blasphemy is considered as a sin and is defined as any word of curse, expressions of disapproval, vituperation pronounced against the God. Blasphemy laws are often used to protect the sanctity of any organised religion. This sanctity is the standard that the society wants to protect in order to preserve morality and religious beliefs in the society.

Since it involves the beliefs and values held by the majority population, commission of blasphemous acts is met with severe punishment. In Judeo-Christian-Islamic traditions, the penalty for committing blasphemy is death. Rejecting the existence of God was also recognised as a crime under the common law.

From 17th century onwards, blasphemy became less and less of a secular crime. This was the trend in England and was followed by the United States. In both the countries, the state gave the authority and the responsibility to the Church for investigation and prosecution in the cases involving blasphemy. The state began to enforce and regulate stricter laws against serious crimes of dissent against deities because of the common belief that a nations religious unity further strengthened its peace and tranquillity. The decline of blasphemy prosecutions began after the Enlightenment era. There havent been any blasphemy prosecutions in the United States since 1969.

The last successful blasphemy prosecution in England was in 1977. This points to the fact that the circumstances of modernity have made the prosecution for blasphemy very uncommon, out of date and no longer in practical use. One of the reasons for this decline is the common understanding between people that it is possible that religion can survive without penal punishments. But, the sentiments against speaking sacrilegiously about God in religious populations still remain[1].

 The 42nd Amendment laid down the Fundamental Duties which every Indian Citizen is supposed to follow. It added the word secular in the preamble of the Constitution, making it very clear that India is a secular country and is not biased towards any particular religion. This amendment encouraged equality of all religions as well as protected the freedom of practicing your religion freely. With this concept of secularism, there also exists a section in the Indian Penal Code which places a restriction on such practice.

Section 295A[2] penalizes insult to any religion.1 The punishment for such insult is imprisonment up to three years and fines for any insult or slur made with deliberate and malicious intent of outraging the modesty or religious beliefs and sentiments of any citizen in India. This insult could be in the form of writing or speech. Section 295A2 is to be read in a wider sense and not in a strict sense. The section does not criminalize every act which insults or attempts to insult religious sentiments. It only criminalizes those acts which are intentional as well as malicious in nature. Section 295 A has been interpreted in the same manner by the courts in Mahendra Singh Dhoni v. Yerraguntla Shyamsundar[3].

The facts of case involve a picture of cricketer, Mahendra Singh Dhoni, being displayed as Lord Vishnu which was circulated in a magazine with the words Divine force of Big Deals. The prosecution argued that the picture was insulting to the religious sentiments of the devotees of Lord Vishnu. The courts held that Section 295A2 doesnt criminalize every act which insults religious sentiments, but those acts which are said or written with the malicious intention of hurting religious feelings of that class. The same rationale was also used by the courts in The State of Haryana And Ors vs Ch. Bhajan Lal And Ors[4].

There also have been many constitutional arguments in favour of blasphemy law, one of which is Ramji Lal Modi v State of Uttar Pradesh[5]. In this case, the five-judge bench upheld the constitutionality of section 295A2. The defendant, Mr Ramji Lal was the editor of Gauraksha magazine. He was accused of publishing article which were blasphemous in nature. Mr. Ramji Lal argued that his right of freedom of speech is well protected under article 19 1 (a)[6] of the constitution and hence his content is also protected under the aforementioned article.

The prosecution contended that section 295A2 has a wider scope and punishes all activities capable of hurting sentiments. The court held that the section only punishes certain activities with malicious intent which hurt religious sentiments of a particular class. The calculated tendency of this insult must be to disrupt public order. As far as constitutionality of section 295A2 goes, criminalization of such activities is well within the protection offered by clause (2) of article 199 which allows reasonable restrictions to be placed on the right of freedom of speech and expression. That being said, there are constitutional arguments in favour of blasphemy law as well.

The Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia[7] laid down the test in which the speech prohibited must have a link with disruption of public order and such disruption must not be remote. The facts of the case are, the appellant was prosecuted for delivering speeches which provoked other farmers into not paying enhanced taxes to the government. The court held that that there has to be link between what is said and the intent to cause disruption.

This disruption cannot be remote and must be material to it. Since, his own decision of not paying the taxes cannot be said to have the intent of causing disruption and is too remote to be held liable. In the 2007 case, Sri Baragur Ramchandrappa & Or vs State of Karnatka & Ors[8] proved that the test laid down by the Ram Manohar Lohia judgement has lost its importance down the years. The verdict given in Ramchandrappa is in stark contrast with the one given in Lohia case. In the former, the Supreme Court held that no individual has the right to hurt the sentiments of others in the process of exercise their right of freedom of speech and expression. It has to be taken into consideration that India is a country with diverse languages, cultures, rituals and religions. Using the aforementioned rationale, the Supreme Court prohibited a recorded anecdote of the life of Basaveshwara.

 The latest arrest of comedian Kiku Sharda, known for his work on Kapils Comedy Show, has resurrected the debate over Indias backward speech laws. In the heart of the debate lies section 295A2. It is a cognizable offence which means that a judicially sanctioned warrant is not required for the arrest of the accused persons.

Given the duration of trials in criminal cases in India, section 295A2 can be abused in curbing the freedom of speech and expression. There are no indications from the parliament of having the objective of repealing the section.

The only other respite is the judiciary. In 2015, Subramanian Swamy, member of Parliament in Rajya Sabha, filed a petition demanding the striking down of hate speech laws in the Indian Penal Code because they are unconstitutional.

But striking down Section 295A2 is a huge obstacle in the process. In Ramji Lal Modi v State of Uttar Pradesh 4, discussed above, the judiciary consisting of five-judge bench upheld the constitutionality of the section. So, if the judiciary wants to overturn the ruling, it would require a seven-judge bench to do so and strike down the section.

The procedure would require the petitioners to persuade a two-judge bench that the judgment in the Ramji case is faulty. If persuaded, the two-judge bench will need to refer the question to a five-judge bench who, if persuaded, will refer the case to a seven-judge bench.

The seven-judge bench will listen to the case on its merits. The whole procedure to reform section 295A2 is time consuming and intimidating. But there still are rational reasons for the courts to revisit the case and reflect on overruling its decision. In the Ramji case, the court held that section 295A2 is constitutional because Article 19(2)[9] allows placing reasonable restrictions upon speech and expression in the interests of public order. The main component of courts argument is that the words in the interests of has a very wide scope and extent and permits the state to enact laws in order to control such speech and expression.

The argument before the court was that in order the speech to be blasphemous, there should be a degree of proximity between the speech and the possibility of disruption of public peace. For example, inciting a mob to destroy public authority would tantamount to blasphemy whereas an article support Naxalites would not amount to blasphemy. Previous judicial judgments also agreed the rationale that there has to be a degree of proportionality between the speech, expression and the harm to a particular religious class.

But these arguments were quashed by the court. While giving this judgement, the court, incorrectly, laid more emphasis on in the interest of and ignored the words reasonable restrictions. Three years from Ramji case, the court took a different stand. In Superintendent, Central Prison, Fatehgarh v Ram Manohar Lohia 5, discussed above, court held that there has to proximate link between speech and disruption of public order and such a link must not be remote. In the following years, the test for blasphemy was further narrowed down by the courts.

In S. Rangarajan Etc vs P. Jagjivan Ram on 30 March, 1989[10], court laid down that the link between speech and disruption must be like that of a spark in a powder keg. In the Arup Bhuyan vs State of Assam[11], the Supreme Court held that only those speeches and expressions can be held blasphemous, which can incite imminent lawless action.

As a result, the courts created a very high threshold for disrupting public peace and order. In the same case, it was also held that mere membership into a terrorist community cannot be held criminal, only when he incites violence can it be considered against the law.

In the relatively modern case of Shreya Singhal vs U.O. I[12], the court made the difference between advocacy and incitement crystal clear and also made it a point that anti-speech laws have to be narrowly curated so as to make it possible that only cases concerning the latter kind of speeches are criminalized. In conclusion, striking down of section 295A2 is a monumental task. But, there are numerous rational arguments against the existence of blasphemy laws which make a compelling case to strike down such speech laws.[13]

In a study conducted by the Pew Research Center, it was found out that 26 percent of total countries in the world have anti blasphemy laws[14]. A closer look into the The South Asian Association for Regional Cooperation (SAARC) would show that Afghanistan, Bangladesh, India, Maldives and Pakistan have blasphemy laws whereas Bhutan, Nepal and Sri Lanka do not. Afghanistan is an Islamic state and penalizes blasphemy under Sharia law. It is punished by reprisal penalties and can even lead to death by hanging[15].

Bangladesh is a secular country but also contains blasphemy law in its penal code which prevents hurting of religious beliefs and sentiments[16]. There was a proposal by the radical Islamic groups to introduce the punishment of death penalty for blasphemous acts. This proposal was rejected by Sheik Hasina reasoning that every religion has the right to be practiced freely14. Pakistan has the maximum number of people serving life sentences or death row for the offence of blasphemy than any other country in the world[17]. It has four sections of blasphemy laws in its penal code varying from different degrees and acts[18].

Section 295C lays down death as the punishment for blasphemy16. Pakistan has the second strictest blasphemy laws in the world, behind Iran[19]. All the citizens are required to be Muslim in Maldives. It also has apostasy laws. Blasphemy laws seem to be the norm rather than an exception when it comes to countries in the Middle East and North Africa where 14 countries out of 20 have anti-speech laws and penalize apostasy. Saudi Arabia is known globally for having the strictest laws.

Punishment for blasphemy is death. In 2013, a human activist Raif Badawi[20] was sentenced to 1000 lashes for commenting on countrys religious policies. One-third of the Americas countries have anti-speech laws and a one-fourth of countries in Asia-Pacific territory. The Christian Governor of Jakarta was sentenced to years in jail for offending Islamic sentiments during a speech on 9th May 2018[21].

Only Sudan, Somalia, Nigeria and Senegal have blasphemy laws out of Africas 48 nations. But this statistic does not consider the sharia law operating locally in many Islamic districts. Europe, which is considered by many to be the most secular region, has seven country which have anti-speech laws.

In Ireland, Malta, Poland, Greece, Italy, Russia and Denmark, it is possible to be prosecuted for the offence of blasphemy. In 2012, Phillipos Loizos, a blogger, was arrested in Greece for offending a well respect Greek monk. In 2017, A Danish man was accused of blasphemy when he burnt the Koran and uploaded the footage online. Activists in Denmark have been trying hard in order to strike down the law because Denmark is one of least religious countries. But all such efforts have been in vain.[22]

After spending hours in research and writing this paper, I have come to the opinion that blasphemy laws should be abolished:
  • Firstly, they violate the fundamental right of free speech and expression. Criticising, mocking and questioning are forms of such expression. Blasphemy laws penalize such expression and hence are in breach of international regulations. Churches and religious sections should be open to hearing such expressions, like all other groups are.
  •  Secondly, religious sections view enquiry and critique from others as an insult to their religion. As illustrated above, Raif Badawi got the punishment of a 10-year jail sentence and 1000 lashes for his critical discussion of Islam which is not blasphemous.
  • Thirdly such laws lead to vigilantism. People who get prosecuted for blasphemy or have views different from the majority religious groups are beaten up in public to show set an example to other religious groups. Incidents like burning of Christian property and murder of Christian people in Pakistan in 2009[23] prove the existence of such practices.
  •  Lastly, most blasphemy laws are intrinsically bad. A law punishing insult or mocking of religious sentiments of a group of people might itself be insulting to other religious feelings of other groups if it stops them from expressing their religion because other groups find their expression insulting to their religion. Hence, blasphemy laws should be abolished all over the world.

End-Notes:
  1. Elizabeth Burns Coleman & Kevin White, Negotiating the Sacred 119-132 (2006).
  2. Indian Penal Code, 295A (1860).
  3. Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, SCC 760 (2017).
  4. State of Haryana And Ors vs Ch. Bhajan Lal And Ors, AIR 604 (1990).
  5. Ramji Lal Modi vs The State Of U.P, AIR 620 (1957).
  6. Article 19 (1) Constitution of India (1949)
  7. The Superintendent, Central ... vs Ram Manohar Lohia, AIR 633 (1960).
  8. Sri Baragur Ramachandrappa & Ors vs State of Karnataka & Ors, SCC 11 (2007).
  9. Constitution of India, Article 19(2) (1949).
  10. S. Rangarajan Etc vs P. Jagjivan Ram, SCC (2) 574 (1989).
  11. Arup Bhuyan vs State of Assam, SCC 377 (2011)
  12. Shreya Singhal vs U.O.I, SC 1523 (2015).
  13. Gautam Bhatia, The Constitutional Case against India's Blasphemy Law the Wire (2016), https://thewire.in/law/the-constitutional-case-against-indias-blasphemy-law (last visited Oct 17, 2018).
  14. Angelina Theodorou, Which countries still outlaw apostasy and blasphemy? | Pew Research Center Pew Research Center (2018), http://www.pewresearch.org/fact-tank/2016/07/29/which-countries-still-outlaw-apostasy-and-blasphemy/ (last visited Oct 12, 2018).
  15. United Refugees, Refworld | 2008 Report on International Religious Freedom - Afghanistan Refworld (2018), http://www.refworld.org/docid/48d5cbf4c.html (last visited Oct 17, 2018).
  16. Bangladesh PM rejects blasphemy law BBC News, https://www.bbc.com/news/world-asia-22058462 (last visited Oct 16, 2018)
  17. 2016 Annual Report United States Commission on International Religious Freedom, https://www.uscirf.gov/reports-briefs/annual-report/2016-annual-report (last visited Oct 14, 2018)
  18. Act XLV Pakistan Penal Code (1860)
  19. Ranking countries by their blasphemy laws The Economist, https://www.economist.com/erasmus/2017/08/13/ranking-countries-by-their-blasphemy-laws (last visited Oct 15, 2018)
  20. Raif Badawi: Saudi blogger 'to be lashed again this week' The Week UK, http://www.theweek.co.uk/63963/raif-badawi-saudi-blogger-to-be-lashed-again-this-week (last visited Oct 21, 2018)
  21. Jakarta governor guilty of blasphemy for 'insulting Islam' The Week UK, http://www.theweek.co.uk/84359/jakarta-governor-guilty-of-blasphemy-for-insulting-islam (last visited Oct 21, 2018)
  22. Blasphemy laws around the world, The Week UK (2018), http://www.theweek.co.uk/84420/blasphemy-laws-around-the-world (last visited Oct 14, 2018).
  23. 6 killed in Pakistan as Muslims burn Christian homes - CNN.com Edition.cnn.com, http://edition.cnn.com/2009/WORLD/asiapcf/08/01/pakistan.sectarian.violence/ (last visited Oct 14, 2018)

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