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Section 295-A: Why we need to repeal it.


I have written a series of blogposts here and articles on Swarajya dealing with the issue of Free Speech. It is a complex issue that needs to be dealt with nuance, and cannot be dismissed lightly. Why? Because free speech is the cornerstone of a liberal democracy, what we claim to be through our constitution. (Whether or not we meet that standards is a question that I will attempt to answer in another article) The Constitution of India gives every citizen of India the freedom of speech and expression under Article 19 1 (a). We are however restricted in the exercise of our rights by Article 19 (2), which permits the continued enforcement or enactment of any law impeding free speech, if it is on the grounds permitted under the clause.

This unfortunately means that Section 295 – A of the Indian Penal Code, 1860 is valid. Section 295-A penalizes ‘Deliberate and malicious acts meant to o outrage religious feelings of any class by insulting its religion or religious beliefs”:

S. 295-A – Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

It is in other words, a law against ‘blasphemy’, antithetical to any society that believes in free speech. The words ‘Deliberate’ and ‘malicious’ attempt to make the section and the offence a tad more reasonable, but that is not the case. If I want to be a blasphemer, deliberately, a society that believes in civil liberty should allow me to be so, to spread my thoughts and feelings without any inhibition.  I should not face any sanction from the state merely because somebody’s ‘feelings’ have been hurt, or because someone is ‘outraged’.

The Supreme Court has unfortunately held that this section is constitutional in many judgments, as the exception created for ‘public peace’ under Article 19 (2) is satisfied. The only way to remove this section is by legislative repeal, which is not even being discussed  by anyone at this point.

This article in the Indian Express, written by the former Attorney General of India, Soli Sorabjee in 2006 does make some interesting reading behind the history of the section. To Quote:

The legislative history of Section 295(A) is interesting. A tract, Rangila Rasool, was published in which there were scandalous references to Prophet Mohammed’s personal life. The Lahore High Court ruled that although the writing was certainly offensive to the Muslim community, the prosecution was not legally sustainable because the writing could not cause enmity or hatred between different religious communities, which is the gist of the offence under Section 153(A) of the IPC. There was an outcry from the Muslim community and a demand for change in the law. Thereafter Section 295(A) was enacted. Incidentally the author of the tract was murdered in Court.

 Mohandas Gandhi was outraged at the publication of the pamphlet, and supported the agitation by the Muslim community for the same. And the law came. It has been harming the interests of free and critical thinking ever since.

Let us return to Sri. Sorabjee’s article before progressing: he remarks at the end that suggest that the section is legitimate. He says the yardstick for whether or not the feelings have been outraged has to be determined on the basis of the reactions of ‘believers’. In other words, we have to keep our tone and tenor based on the feelings of an ‘average person’. This is not how a constitutional right should work. My rights are my rights. My right to free speech should include the ability to offend and outrage you. After all, what is offensive is inherently subjective. And subjective standards have no place in the determination of a crime.

If we are to be a country that provides for liberal democratic values, then we should permit free and critical inquiry into all spheres of thought. Otherwise, we are not here nor there, and we no gleam no benefits.

If you believe in a free society, then you should be against the existence of this section. It is contrary to free speech. And it’s time we all come on the side of repealing this section.

I would suggest that you read the following articles to understand the concept of free speech more elaborately: On Free SpeechFree Speech: Examination of two recent scenarios, The Right and Wrong of Free Speech [Swarajya], Why concerns about unbridled free speech must be re-examined [Swarajya], and Gurmehrar Kaur is by no means a free speech warrior [OpIndia].


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