The Wrangling On Blasphemy Law
Written by Hasnain Raza Athar
Jamia Millia Islamia , New Delhi
Disclaimer: Please note that the views expressed below represent the opinions of the article's author. The following does not necessarily represent the views of Law & Order.
Stand up comedian Munawwar Faruqui got bail by the Supreme Court after spending 25 days in a Madhya Pradesh jail for the jokes he did not crack, but on a mere suspicion that he was “going to.
Faruqui was arrested from a cafe located at Indore city of Madhya Pradesh on January 1st 2021 where he was about to perform in a show for allegedly hurting religious sentiments under section 295A and section 153A of Indian Penal Code which is invoked along with it for the most part. The MP police initially claimed that they had enough evidence against Munawwar Faruqui to arrest him.Later, the police said that there is no evidence against Faruqui.
Despite this Munawwar Faruqui was not granted bail by the lower and the higher court and was deprived of his liberty for more than 25 days. This again created a notion among the people to abolish section 295A which penalises any deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
Ingredients of Section 295-A are
(1) insult or attempt to insult the religion or religious beliefs of any class of citizens of India
(2) with a deliberate and malicious intention both of outraging the religious feeling
(3) By words, either spoken or written, by signs or by visible representation or otherwise
(4) It is a non-bailable, non-compoundable and a
(5) cognizable offence, means The police have the authority to arrest a person without a warrant.
Thus, In order to establish the ingredient of Section 295A , it has to be established that the accused had committed the unlawful with a deliberate and malicious intention to hurt the religious or spiritual sentiments of that class of citizens of India.
Constitutionality of section 295A
The constitutionality of section 295A was challenged in Ramji Lal Modi v. State of U.P. in which the Supreme Court upheld the constitutional validity of section 295A of Indian Penal Code and ruled that this section does not penalise every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class, and Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section 295A.
While explaining the aforesaid judgment, the Calcutta High Court in the case of Sujato Bhadra v. State of West Bengal added that to book any person under 295A , it has to be established that the insult or attempt to insult the religion or religious belief was made not just with intention, but both deliberate and malicious intention i.e deliberately malicious intention.
Here, one more exception was pronounced by the Calcutta HC that even if it is committed with an intention, neither deliberate nor malicious of course, but with the intention of the well being of the society, which is critical for humankind , like emancipation of women, or any other comment which is made in good faith to create a social reform will not attract 295A.
Blasphemy law in the context of ‘Freedom of Speech’ and ’ Secularism’
There is an argument given by some intellectuals that blasphemy law is contradictory to the freedom of speech and expression given under Article 19 (1)(a). However, they fail to recognize clause 2 of the same article which imposes reasonable restrictions upon the freedom of speech and expression in the interests of “public order”. This is exactly what the blasphemy law does. It is not “contradictory” rather “complementary” to each other, and both go hand in hand.
As far as India’s fabric of secularism is concerned, it is exactly the opposite to the western’s. The western concept of secularism requires complete separation of religion from the state affairs.
On the other hand, India’s mode of secularism has a positive mode of religious engagement. It is not based on the ‘Dharma nirapekshata’ i.e. the indifference of state to religion but on the “Sarva Dharma Sambhava” which means, though the paths maybe different, the destination of the paths followed by all religions is the same, that is equal respect to all religions.
India is a secular country, which doesn’t mean that the Indian people are secular, they are religious which is an established fact. Dr. S Radhakrishnan, the former president of India in his book ‘Recovery of faiths’ says that when India is said to be a secular state, It doesn’t mean that we reject the reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It doesn’t mean that secularism itself becomes a positive religion or that the state assumes divine prerogatives. although faith in the supreme spirit is the basic principle of the Indian tradition, our state will not identify itself with or be controlled by any particular religion.
There are no two different opinions that the blasphemy law has often been misused against actors, writers, comedians, and journalists. The police have been seen to apply it where they shouldn’t. And not to apply it where they ought to like in the case of political leaders who regularly make a blasphemous speech that disrupts public order.
However, there is also no confusion about whether we need laws against the culprits who use to deliver hate speech which incites communal violence. The author is not of the opinion that the people should get persecuted for every comment they make, but the law should be exercised judiciously on every event of violations of freedom of expression and incitement of hatred resulting in violence and social disharmony. Here the judiciary has a crucial role to play, the judiciary should prevent the indiscriminate invocation of this provision by the law enforcement machinery and ensure unselective use.
The judiciary must prepare a set of guidelines also so that the civil liberty of the citizens can be protected.
The law being misused doesn’t mean that it is antithetical or it should be struck down. It is better to heal the wound rather than cutting the whole finger.
 https://www.aljazeera.com/news/2021/1/26/indian-muslim-comic-in-jail-for-weeks-for-jokes-he-didnt-tell  https://scroll.in/latest/984043/munawar-faruqui-did-not-joke-on-hindu-deities-but-it-doesnt-matter-says-indore-sp-report  Ramji Lal Modi v State of UP, (1957) 1 SCR 860  Sujata Bhadra vs. State of West Bengal 2005 SCC Online Cal 516  Recovery of faith, Dr. S Radhakrishnan, 184