Context: The debate surrounding the comments on Prohpet Mohammad have put the spotlight on the law that deals with criticism of or insult to religion. Provisions in the Indian Penal Code (IPC), primarily Section 295A, define the contours of free speech and its limitations with respect to offences relating to religion.
India does not have a formal legal framework for dealing with hate speech. However, a cluster of provisions, loosely termed hate speech laws, are invoked. These are primarily laws to deal with offences against religions.
Section 295 and others
Section 295A defines and prescribes a punishment for deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.
It is one of the key provisions in the IPC chapter to penalise religious offences.
– The chapter includes a) offences to penalise damage or defilement of a place of worship with intent to insult the religion (Section 295), b) trespassing in a place of sepulture (Section 297), c) uttering, words, etc, with deliberate intent to wound the religious feelings of any person (Section 298), d) disturbing a religious assembly (Section 296).
Section 295A has been invoked on a wide range of issues from penalising political satire and seeking bans on or withdrawal of books to even political critique on social media.
The state often invokes Section 295A along with Section 153A of IPC, and Section 505 of the IPC that punishes statements conducing to public mischief
– Sec 153A penalises promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony
In cases where such speech is online, Section 66A of the Information Technology Act that punishes sending offensive messages through communication services is added.
– In a landmark verdict in 2015, the Supreme Court struck down Section 66A as unconstitutional on the ground that the provision was “vague” and a “violation of free speech”. However, the provision continues to be invoked.
Origins of the hate speech law
Colonial origins of the hate speech provisions are often criticised for the assumption that Indians were susceptible to religious excitement.
– Section 295A was brought in 1927.
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Rangila Rasool case
Rangila Rasool was a tract — brought out by a Hindu publisher — that had made disparaging remarks about the Prophet’s private life.
Cases against the first pamphlet, filed under Section 153A, were dismissed by the Punjab and Haryana High Court.
When a second, similar piece was published, it raised tensions.
While the magistrate had convicted the publisher Rajpaul under Section 153A, the Lahore High Court held that a “scurrilous and foul attack” on a religious leader would prima facie fall under Section 153A — although not every criticism.
This debate in interpretation prompted the colonial government to enact Section 295A with a wider scope to address these issues.
In 1957, the constitutionality of Section 295A was challenged in Ramji Lal Modi v State of Uttar Pradesh.
– The Supreme Court upheld the law on the grounds that it was brought in to preserve “public order”.
In a 1960 ruling, in Baba Khalil Ahmed v State of Uttar Pradesh, the Supreme Court said that “malicious intent” of the accused can be determined not just from the speech in question but also from external sources.
In 1973, in Ramlal Puri v State of Madhya Pradesh, the Supreme Court said the test to be applied is whether the speech in question offends the “ordinary man of common sense” and not the “hypersensitive man”.
In Baragur Ramachandrappa v State of Karnataka, a 2007 decision of the Supreme Court, “a pragmatic approach” was invoked in interpreting Section 295A.
Source: This post is based on the article “Hate speech, IPC Sec 295A, and how courts have read the law” published in The Indian Express on 16th June 22.