Above: The Punjab assembly passed the IPC (Punjab Amendment) Bill, 2018
By enacting a new law against blasphemy, the legislative assembly of Punjab has put the clock back on the march of civilisation
Section 295A of the Indian Penal Code criminalises insult to religious beliefs if accompanied by deliberate and malicious intention of outraging the religious feelings of any class of citizens of India. It was inserted into the Code through an amendment during the 1920s by the colonial administration as a response to communal tensions following the publication of a tract carrying disparaging remarks about the Prophet Muhammad’s private life.
The need for a specific provision to deal with the insult was felt as the existing provision, Section 153A, which deals with the offence of promoting enmity among different groups on the ground of religion, and other factors, was found inadequate to tackle outrage of religious sentiments of a community. The amendment was justified on the ground that maintenance of public order required it, and that only aggravated forms of insult to religious feelings were to be punished with imprisonment for a term which may extend to three years, or with fine, or with both. After Independence, the provision withstood legal scrutiny, with the Supreme Court upholding its constitutional validity in the face of free speech provisions, in Ramji Lal Modi v State of Uttar Pradesh, in 1957.
On August 28, the Punjab Legislative Assembly sought to further amend this provision by inserting Section 295AA, which says that “whoever causes injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwad Gita, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punished with imprisonment for life”. The Indian Penal Code (Punjab Amendment) Bill, which was unanimously passed by the assembly, also sought to amend Section 295, which seeks to punish those injuring or defiling a place of worship, or any object held sacred by any class of persons with the intention to insult their religion, or with the knowledge that such destruction would be considered an insult to their religion, with imprisonment for two years or fine or with both. The new amendment enhances this punishment to 10 years’ imprisonment.
The Bill, first passed by the assembly on March 21, 2016, when the previous Shiromani Akali Dal-BJP government was in power, initially proposed life imprisonment for sacrilege of the Guru Granth Sahib only. This followed a series of incidents of desecration of the holy book in different parts of the state. The governor gave his assent to the Bill on April 28, 2016. The Union home ministry returned the Bill to the Punjab government following legal opinion that the proposed Bill would violate the principle of secularism and the sentence prescribed was excessive in law.
Atul Nanda, the state’s advocate general, had in his legal advice on May 12, 2017, said that the state government might move a proposal for amending Section 295 with an increase in the term of imprisonment from two to 10 years, which was accepted by the centre. He advised that the Guru Granth Sahib already stood covered under Section 295; alternatively, an amendment may be proposed for all/any religious books which would then be in consonance with the principles of secularism and would not be in violation of Article 14 of the Constitution of India. The Bill passed by the assembly now incorporates Nanda’s advice, but has failed to satisfy civil society.
Sidharth Luthra, former additional solicitor general (ASG), was reported as saying: “A government can always seek to justify a new law as a matter of legislative policy, but the question will be—have they even applied the existing provisions over the past few years or decades? What, if any, deficiencies did they find? Does the government have any statistics to justify this change?”
Indira Jaising, another former ASG, was quoted as saying: “What to eat, when to speak, and what to speak is all being defined by criminal law rather than by a rights framework. Soon, the substance of our fundamental rights will be taken away by criminal laws with draconian punishments.” Mohan Parasaran, former SG, added: “The penalty of life imprisonment is, of course, excessive.”
That the bill has received the support of the entire political class in the assembly causes concern about the state of civil liberties in India with fundamentalism of all hues on the rise. Observers have expressed alarm and wonder whether the new amendment would apply to even academic criticism of the Bhagavad Gita.
Blasphemy as a pre-modern offence has been on the decline in other parts of the world with the ascendancy of secular politics. Most western nations have either abolished the offence or it has fallen into disuse, notes Anushka Singh, author of the recent book, Sedition in Liberal Democracies. England, she notes, abolished it in 2008. The United States did not have a federal law on blasphemy, but a few states have laws that make a reference to blasphemy. Australia does not recognise blasphemy as a federal offence.
Blasphemy, as Singh observes in her book, originates in early English common law traditions when it was considered blasphemous to deny the truth of the Christian religion, the Bible or the existence of God that had it in them to deprave public morality and cause civil strife. This was meant to indicate that an attack on religion shook the foundations of a society, ushering it into a realm of chaos and disorder, she adds.
With time, the law began to define blasphemy in relation to other religions as well. The ban on Salman Rushdie’s The Satanic Verses is one such instance, although in India, it was under the Customs Act of 1962, which prohibited import of the book into India, without making its possession a crime. A ban on Taslima Nasreen’s book Dwikhandito under Section 295A was overturned by the Calcutta High Court on the ground that its objective was social reform.
Unfortunately, the judiciary has not been entirely in favour of diluting this provision. In Sri Baragur Ramachandrappa v State of Karnataka, an award-winning Kannada novel was banned for fictionalising the life of the 12th century saint, Basaveshwara, which had infuriated his followers. The Supreme Court upheld the ban. Recently, the apex court upheld the Karnataka High Court’s order legitimising the ban on Mate Mahadevi’s book, Basava Vachana Deepthi, without a reasoned judgment. The Karnataka government had imposed the ban on her book in 1998 on the grounds that it was likely to outrage the religious feelings of Lord Basavanna’s followers.
With the judiciary turning its back on its duty to protect freedom of expression, the prospects of a legal challenge to Punjab’s anti-sacrilege law succeeding are grim.