Based on the data and anecdotal evidence, there appears to be an increased use of Section 153A IPC and Section 295A IPC.
Based on the data and anecdotal evidence, there appears to be an increased use of Section 153A IPC and Section 295A IPC.
In another brutal display of power, Dalit educationist Dr. Ratan Lal arrested For an ‘objectionable’ post on the Gyanvapi Masjid controversy. He is accused of promoting enmity or enmity between religious groups (Section 153A of the Indian Penal Code) and intentionally and maliciously hurting religious sentiments (Section 295A of the IPC). His arrest adds to the trend of increasing use of the two provisions.
The National Crime Records Bureau’s latest annual report records more than four jumps (458%) of cases registered under section 153A since 2014; It has almost doubled in the last two years. This does not mean that there has been a sudden surge in hurtful remarks, as only 20.4% of the cases can be convicted. Although no separate data is available on Section 295A, anecdotal evidence suggests its increasing use by the executive.
legislative history
The increased use of these penal provisions draws our attention to the circumstances in which they were enacted. In 1927, when Section 153A was already in existence, Section 295A was introduced on the demand of a religious minority community, alleging that a pamphlet titled ‘Rangeela Rasool’ had published objectionable material against its founder.
The Legislative Assembly’s debate on the introduction of Section 295A raised concerns about its subjectivity which could be misused. The rationale behind the provision was to deal with deliberate insult to religion or incitement to religious sentiments. At best, members of the Assembly found it a temporary remedy for a temporary aberration, not a century later in active use.
A more direct remedy was inserted through section 295A, which would not require it to be proved that the speech promoted enmity or hatred between classes; Now, a hurt feeling will suffice. It could be argued that it protected the spirit of tolerance among religious diversity. But its increased abuse raises the question: for whom and against whom to protect?
The debate foreshadowed and cautioned against an imminent threat to freedom of expression. It was speculated that it could be misused to suppress honest, forthright and authentic Criticism, and hindering historical research towards social reform. If individuals are allowed to file complaints about hurt religious sentiments, the courts will be filled with frivolous cases. Then there will be a broader class of crimes, where the offense cannot be decided objectively when it is committed.
some security measures
However, there were statutory safeguards that required willful intent and malice; And the judicial decisions that needed to be looked at – the words, intent and effect used to ascertain criminality. Only a deliberate and blatant form of religious insult would attract the harshness of the provision.
The judiciary determined two ways of measuring influence—one by establishing a link between speech and public disorder, and by measuring influence by the standards of a reasonable person, not a person fearful of all hostile perspectives. However, no attempt was made to put security measures into practice that could have saved the beloved ethos of free speech. The half-hearted effort leaves us with a law that cannot be properly enforced and is being left to chase the disgruntled.
element of subjectivity
Unlike physical harm that can be verified, emotional injury cannot be tested against strict measures. The element of subjectivity overrides this because vulnerability to emotion can vary widely even among people of the same religion.
Critical scrutiny of orthodox practices and superstitions encourages social reforms. The need for an intelligent counter amidst the aggressive assertion of religious beliefs by socio-political hegemony is enormous. Even the Joint Select Committee of 1927 appreciated the argument that a religious insult, done in good faith, for the purpose of steering reform, would bring the necessary attention of the follower to the criticism.
The Constitution of India celebrates diversity with a guarantee of freedom of expression. With that aspirational pledge, shouldn’t the answer to hurting religious sentiments be tolerance, not rampant criminalization? This may be an unrealistic expectation in times of widespread hatred and animosity. This is contrasted with a pluralistic, democratic and secular nation that runs counter-discourses to criminalize speech in order to hurt fickle religious sentiments.
Even statutory safeguards of ‘deliberate intent and malice’ cannot be laid down objectively. The police do not get into the legislative nuances before registering a criminal case or making an arrest. Philosopher Martha Nussbaum criticized the law by saying that it invites thugs to stifle speech on anything they like; He said that given the political climate in India, many would accept this ugly invitation. A hazy legal paradigm criminalizing hurting religious sentiments facilitates the ruling government’s strategy of using the law to suppress all dissent and promote divisive politics.
On criminalization of freedom of expression, senior advocate Indira Jaising said that the repeated use of the law to suppress dissent reflects the policy of the state. “It’s not ‘abuse’; it’s being used the way enforcement agencies want to.” The executive appears to be more delicate than the religious sentiments of a citizen being hurt. Be it a stand-up comic script, a commentary on the belief of walking barefoot in reverence, or carrying beef in school, India is now able to put forth and express views challenging state-backed majoritarianism. The country is not doing it. rhetoric
Shrutika is an independent researcher pursuing Master of Law (LLM) from Tata Institute of Social Sciences (TISS) Mumbai. Mayank Yadav is a lawyer from Delhi. Views expressed are personal