NATIONAL UNIVERSITY OF STUDY & RESEARCH IN LAW,

RANCHI, JHARKHAND

Mid-Term Project Title

ANALYSING BLASPHEMY LAW IN MODERN INDIA

Subject

Jurisprudence

Name of the Faculty

Dr. Rabindra Pathak

Name of the Student

Sneha Shubham

Semester& Roll No.

NUSRL/RNC/2017/536
Vth Semester

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 INTRODUCTION

The term blasphemy means “Irreverence towards God, religion, a religious icon, or
something else considered sacred.”1 Blasphemy laws are widely dispersed around the globe;
regional patterns are apparent. India being a pluralist & secular country had no provision
against blasphemy until the year 1927 when the Section 295(A) was incorporated in the
Indian Penal Code, 1860 stating that “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”.

Laws against blasphemy forbid insulting religion and religious symbols or interpreting
religious texts in a way that conflicts with the state’s interpretation. Cutting across different
regions and faiths, blasphemy laws have triggered political instability in recent years. 2 The
campaign led (since 1999) by the Organization of Islamic Cooperation (O.I.C.) pushing states
to adopt a resolution prohibiting “defamation of religions” at the United Nations has been
replaced with a new consensual approach since 2011.3

Blasphemy has been held to be a common-law crime (in the United States) because of its
tendency breaches public peace. It is express`ly made punishable by some of the statutes.
However, the rationale behind declaring blasphemy a crime is not only applicable in common
law countries but throughout the world. Blasphemy laws violate international standards of
freedom of expression, religion, and belief, as defined by the United Nations. They have been
condemned by several U.N. bodies, despite the fact that some U.N. member states publicly
support anti-blasphemy laws.

Accusations of blasphemy block ideas from spreading and stifle the capacity of any society to
breathe intellectually, to thrive culturally, and to develop democratically.

INDIAN PERSPECTIVE
1
Byran A. Garner (ed.), The Black’s law dictionary, (9th Ed. West Group 2009) pg. 193
2
A new Pew Research Center analysis finds that, as of 2014, about a quarter of the world’s countries and
territories (26%) had anti-blasphemy laws or policies, and that more than one-in-ten (13%) nations had laws or
policies penalizing apostasy. The legal punishments for such transgressions vary from fines to death.
3
The new text (U.N. Human Rights Council Resolution 16/18) calls on states to adopt positive measures to fight
religious intolerance and discrimination, rather than to criminalize speech concerning religion. This gave way to
what has been called the “Istanbul Process,” which involves states hosting a series of expert meetings to discuss
best practices for implementing Resolution 16/18.

2
Being a Society comprising mostly Hindu population, India saw its first legislation against
blasphemy in the year 1927 as "Hinduism faces no fetters on intellect: Man may think as far
as he can; there is no blasphemy in investigation. There is nothing too sacred to be tested or
questioned”.4 Prior to independence, during certain communal tensions, a Pamphlet named
Rangila Rasul was published by Mahashay Rajpal5. The Pamphlet upon its release in the year
1926 sparked a lot of controversy, with the members of Muslim community seeking
punishment for Rajpal as it was a violent attack over the religious sentiments of the Muslim
community. Eventually Rajpal was acquitted because of the lack of existence of any
blasphemy law in India, only to be murdered in 1929. The British colonial government
eventually in the time of need, amended the Indian Penal Code, 1860 and added Section
295(A) in the year 19276. The Section even after the partition of India, is present in the Indian
Penal Code, 1860, as well as in Pakistan and Bangladesh.

Many of the countries that came out of British colonial rule, including India, inherited their
substantive criminal law, including certain blasphemy provisions, from the British colonial
government through the Indian Penal Code, 1860. According to Gautam Bhatia, a
constitutional lawyer, although the term “blasphemy” is “unfamiliar to the Indian legal and
constitutional landscape,”7 the Indian Penal Code does have a provision that is a variant of
blasphemy law namely, section 295A of Chapter XV of the Code.

In the Indian Penal Code provisions also exist for “uttering, words, etc., with deliberate intent
to wound the religious feelings of any person,” 8 or “injuring or defiling a place of worship
with intent to insult the religion of any class.” 9 Section 153A of the Indian Penal Code
prohibits words or representations that promote “enmity between different groups on grounds
of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony.”10

4
John R. de Lingen, An introduction to the Hindu faith, (Sterling publishers‟ pvt. Ltd. 2008), pg. 2
5
Koenraad Elst, In favour of Freedom of Expression: Section 295A as cornerstone of censorship, 2016, Vol.1,
Dialogue, no.1
6
Criminal Amendment Act of 1927, No.25
7
Gautam Bhatia, ‘Blasphemy’ Law and the Constitution, LIVE MINT (Mar. 19 2016),
http://www.livemint.com/ Sundayapp/TFCMsqPVQ8rK6dJj2E2kSN/Blasphemy-law-and-the-Constitution.html,
archived at https://perma.cc/8VLT-AGYJ.
8
S.298 , IPC.
9
S.295, IPC
10
S.153A, IPC

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In a case before The Supreme Court of India Ramji Lal Modi v. State of UP (1957)11, a five-
judge bench upheld the constitutionality of section 295A. The Court held that the provision
was a “reasonable restriction” on the freedom of speech as provided by the limitation clause
under article 19(2) of the Constitution in order to maintain public order.

The International Commission of Jurists notes that section 295A has been used to “arrest and
charge individuals who express allegedly ‘outrageous’ opinions, even without evidence of
intent” and, “while police may drop such charges at a later stage, section 295A has still
damaged free expression by enabling the initial harassment.”12 One high-profile case was
heard in 2014, when “Penguin India decided to withdraw publication and destroy remaining
copies of Wendy Doniger’s scholarly work ‘The Hindus: An Alternative History’ in response
to a case filed under section 295A by a right wing religious group accusing the book of
hurting Hindu sentiments.”

BLASPHEMY LAWS FOR STABLE GOVERNANCE

As noted by the Greek Supreme Court, “Religious insult encroaches upon the religious
feelings and the religious freedoms of others, both of which are protected as moral-social
value, as social & legal interest worthy of protection to the benefit of civilisation and the
polity. According to this decision, religion is not a purely personal affair, a wholly inner
relationship of the soul of god, irrelevant to the state, but is the foundation of the state, a
vector of spiritual civilisation affecting not only the feeling and thoughts, but also the actions
of human beings”.13 Hereby it can be understood that Religion affects the actions of human
beings, thus requires a legal protection to protect moral & social values of a society that are
necessary for a stable society and better governance. The responsibility to protect religious
sentiments of others later transforms in to a legal duty when the state recognises the “Right to
Religion”.

REASONABLE RESTRICTION FOR HARMONY

11
1957 AIR 620, pg. 5
12
Blasphemy Prosecutions Invoke Dignity of Religion to Deny Human Rights and Undermine the Rule of Law,
INTERNATIONAL COMMISSION OF JURISTS (ICJ) (July 21, 2015), https://www.icj.org/blasphemy-
prosecutions-invokedignity-of-religion-to-deny-human-rights-and-undermine-the-rule-of-law/, last visited
16/05/2017
13
European Commission for Democracy through Law, Blasphemy, Insult and Hatred: finding answer in a
Democratic Society, (Vol.47, Science and technique of Democracy, Council of Europe 2010) pg.65

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Most of the countries implement Blasphemy laws as a reasonable restriction for the
maintenance of communal harmony. Even the purpose of Section 295(A) in the Indian Penal
code, 1860 was to put a hold on a series of communal violence provoked by the use of
blasphemous statements. The pamphlet Rangila Rasul was also allegedly written as a
response to another pamphlet written to attack Hindu sentiments 14. Thus the British
government’s aim of introducing 295(A) was to put the reasonable restriction of the freedom
of speech for the maintenance of order.

Reasons for holding blasphemy as outlawed are often interlinked, difficult to distinguish and
at times may complement each other. When a state recognises that the religion acts as a moral
code of conduct that drives a human being and shapes his & his society’s way of thinking, it
is very well evident that any verbal attack on such moral code that denigrates will lead to an
unrest that may or may not be violent in nature.

India’s Freedom of Religion Acts or “anti-conversion” laws are state-level statutes that have
been enacted to regulate religious conversions. The laws are in force in six out of twenty-nine
states: Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, Gujarat, and Himachal
Pradesh.15

While there are some variations between the state laws, they are very similar in their content
and structure. All of these laws seek to prevent conversions ‘carried out’ by ‘forcible’ or
‘fraudulent’ means or by ‘allurement’ or ‘inducement.’ ” According to the US Commission
on International Religious Freedom (USCIRF), “these laws, based on concerns about
unethical conversion tactics, generally require government officials to assess the legality of
conversions out of Hinduism only, and provide for fines and imprisonment for anyone who
uses force, fraud, or ‘inducement’ to convert another.”16

BLASPHEMY LAWS IN MODERN INDIA

Shortly after Partition, which split the Indian subcontinent into India (with a Hindu majority),
and Pakistan (with a Muslim majority), M.S. Golwalker, a member of the Nationalist and anti-
Muslim Hindu association, the RSS, remarked that, since Hindus are, as is well-known, the most
14
Koenraad Elst, In favour of Freedom of Expression: Section 295A as cornerstone of censorship, 2016, Vol.1,
Dialogue, no.1
15
U.S. DEPARTMENT OF STATE, BUREAU OF DEMOCRACY, HUMAN RIGHTS AND LABOR,
INTERNATIONAL RELIGIOUS FREEDOM REPORT FOR 2015: INDIA,
https://www.state.gov/j/drl/rls/irf/religiousfreedom/index.htm?year=2015& dlid=256305, last visited 17/05/2017
16
USCIRF, ANNUAL REPORT 2016: INDIA 162, http://www.uscirf.gov/sites/default/files/USCIRF%202016
%20Annual%20Report.pdf, last visited 15/05/2017

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tolerant people in the world, they deserve to have the land of India to themselves, and therefore
the (purportedly less tolerant) Muslims should be disenfranchised. This movement began to call
itself Hindutva, “Hinduness,” a term that was invented by the nationalist Vinayak Damodar
Savarkar in his 1923 pamphlet Hindutva: Who is a Hindu?17

India still prides itself on having no blasphemy laws (in contrast with Pakistan, which does
indeed have them). But 295(A) functions as a blasphemy law, and calls for a nuanced
judgment on whether the “outraged religious feelings” of the plaintiffs stem from a lying
insult against a group religion or caste, which could lead to violent disorder, making it the
equivalent of slander against an individual, or from a reasoned argument or artistic venture
intended to uncover the meaning of, or contradictions within, such a group.

DEFINE RELIGION

Blasphemy has been described as irreverence towards God or Religion, however the term
‘Religion’ itself lacks a proper definition for itself. Belief in God which may unite Judaism,
Islam and Christianity, is clearly insufficient as a definition, because some religions, such as
Hinduism are arguably, Polytheistic. Definition that depends upon a belief on God or Gods
would similarly fail to include Buddhism, as it doesn’t include belief in a God. 18 Hence a law
to protect religion from blasphemy falls short when the term religion finds no conclusive
meaning.

FREEDOM OF RELIGION

Many jurisdictions have tried to define the term religion through commentaries or
judgements. The Universal Declaration of Human Rights in its article 18 also protects
Atheistic and Non Theistic views in order to broaden the term ‘Religion’. 19 Apart from
Atheism, many religions also come a lot of time in conflict with other religions, at many
times which may lead to blasphemy.

FREEDOM OF SPEECH AND EXPRESSION

The tension between the right to freedom of expression and the desire among many people
and countries to prohibit blasphemous or religiously hurtful speech has become a focal point
of relations between the Western and Muslim Worlds, as well as within and between other
17
Savarkar, V.D. Hindutva: Who is a Hindu? New Delhi, Hindi Sahitya Sadan, 2003.
18
Lucy Vickers, Religion and Belief Discrimination in Employment (Europe Commission 2007) pg.26
19
CCPR General Comments No.22, Article 18: Freedom of Thought, Conscience and Religion (UN Human
Rights Committee 1993) CCPR/C/21/Rev.1/Add.4

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religious and cultural groups. Many countries, including but not limited to those that are
predominantly Muslim, have laws against blasphemy or the defamation of religion;
supporters claim that such restrictions on free speech serve to maintain societal harmony,
while opponents argue that they are used to suppress minority faith communities. Some of the
most high-profile controversies in this debate have revolved around publications deemed
offensive by many Muslims but protected by freedom of expression: the novel The Satanic
Verses, cartoons in the Danish newspaper Jyllands-Posten, and an online video called 
Innocence of Muslims.

Freedom of Speech and expression is a fundamental right in the constitution of various

countries including India and also is a Human Right20. Many international documents have
given the Freedom of Speech and Expression a right which cannot be limited due to elements
of Blasphemy. The International Covenant on Civil and Political Rights 21 in its article 19
states that Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his choice
and the right to hold opinion without interference. Prohibitions of displays of lack of respect
for a religion or other belief system, including blasphemy laws, are incompatible with the
Covenant22. There are only two situations in which it is restricted, when it’s a war propaganda
or national, racial or religious hatred which has the element of discrimination, hostility or
violence.23

Throughout the history of Independent India, the section has been defined as a reasonable
restriction over freedom of speech to secure public order. In the Ramji Lal Modi24 case the
court had held that the Constitution in Article 19(2) permits the state to restrict freedom of
speech and expression in interests of public order. The court stated that the term “In interests
of” gave it a very wide ambit and state can make any law for it. The court also stated that the
law is for an aggravated form of speech intended to disturb public order. However the court
discarded the idea of proximity between the speech and the violence that the state fear.

20
Constitution of India, 1949, Art.19; Universal Declaration of Human Rights, UN General Assembly
Resolution 217A (III) 1948, Article 18
21
International Covenant on Civil and Political Rights, (United Nation, Treaty Series, Vol.999 1966), p.171
22
General Comment No.34, Article 19: Freedom of Opinion and Expression, (Human Rights Committee, 102nd
Session 2011) para. 48
23
Article 20(2) International Covenant on Civil and Political Rights, (United Nation, Treaty Series, Vol.999
1966)
24
Ramji Lal Modi Vs. State of U.P, 1957 AIR 620; 1957 SCR 860

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However the court in Ram Manohar Lohia’s case25 held that the limitation imposed in the
interests of public order to be a reasonable restriction, should be one which has a proximate
connection or nexus with public order, but not one far- fetched, hypothetical or problematical
or too remote in the chain of its relation with the public order.‟ Further the court in the case
of S. Rangarajan Etc26 stated that the alleged expression should be like a “Spark in the
powder Keg” & “intrinsically dangerous to the public interest”.

In the light of above state case laws, Free speech gets a wider scope. However, in practical
approach, the idea of an „imminent lawless action‟ makes it very difficult in the case of
Blasphemous acts. It is quite unpredictable as to what statement containing elements of
blasphemy has the capability to spark off violence.

HURDLE IN DEVELOPMENT OF SCIENTIFIC TEMPER

A number of incidents have taken place across the world where rationalists have faced a
threat for questioning religious doctrines and have been persecuted under the blasphemy
laws. Is it to be noted that astrologer Galileo Galilei was put under house arrest for supporting
Heliocentrism as opposed to Geocentrism in the Bible.27

In 2012, little drops of water began to drip from the feet of the statue of Jesus nailed to the
cross on the church of Our Lady of Velankanni, down on to Mumbai's unlovely Irla Road.
Hundreds began to flock to the church to collect the holy water in little plastic bottles, hoping
the tears of the son of god would sanctify their homes and heal their beloved. Sanal
Edamaruku, the eminent rationalist thinker, arrived at the church a fortnight after the miracle
began drawing crowds. It took him less than half an hour to discover the source of the divine
tears: a filthy puddle formed by a blocked drain, from where water was being pushed up
through a phenomenon all high-school physics students are familiar with, called capillary
action. For his discovery, Mr. Edamaruku now faces the prospect of three years in prison.28

LEGITIMIZING MOB VIOLENCE, VIGILANTISM AND PERSECUTION OF

MINORITIES

25
The Superintendent, Central Prison, Fatehgarh Vs. Ram Manohar Lohia, 1960 AIR 633; 1960 DVR(2) 821
26
S. Ranga rajan ETC Vs. P. Jagajivan Ram, 1989 SCR(2) 204 58
27
Giorgio de Santillana, The Crime of Galileo, (University of Chicago Press 1955) pg. 306-310
28
http://www.thehindu.com/opinion/lead/indias-god-laws-fail-the-test-of-reason/article3391109.ece, last visited
16/05/2017

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Countries which prosecute “blasphemy” and “insult to religion” tend to
suffer disproportionately many incidents of:

 intercommunal and mob violence (for example: the episodic burning of Christian

properties and murder of Christians by mobs of Muslim men in Pakistan, such as this
incident in 2009 which left 6 dead29which usually follows unlikely, malicious, unsourced
rumours that someone has “desecrated” the Koran)
 vigilantism against individuals (for example: violence against secularist
Bangladeshi bloggers in the past few years, including the murder of Ahmed Rajib Haider
and a potentially fatal machete attack on Asif Mohiuddin30, both of which coincided with
calls by Islamist groups to have “atheist bloggers” prosecuted for writing which
supposedly insulted religion and criticised religious leaders)
 the general silencing and persecution of minorities (for example: in several Islamic
states, Ahmadiyya Muslims are often regarded, against their self-identity, as non-
Muslims who are “blaspheming” Islam, while conversely Bahai’s are often regarded,
against their selfi-identity, as wouldbe-Muslims who are “apostates” from Islam because
they follow Bahai teachings.
 Both groups are widely marginalised and persecuted in countries such as Iran,
Pakistan, Saudi Arabia, Egypt, and numerous other states, and discrimination against
them is bound up with claims of blasphemy, apostasy, or being kafir (infidels).

Criminalising “insult” to religion in the penal code, lends legitimacy to the social persecution

of individuals and groups who are said to “offend” mainstream religious sensibilities,
sometimes with their speech acts or writing, often just through their existence, or based on
rumours spread with the intention of whipping up violence.

29
http://edition.cnn.com/2009/WORLD/asiapcf/08/01/pakistan.sectarian.violence, last visited 18/05/2017
30
http://www.hindustantimes.com/world/militant-atheist-blogger-stabbed-in-bangladesh/story-
sXi6ZmTEfpcDoOj6sggQfK.html, last visited 18/05/2017

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CONCLUSION

Concluding this article these lines by Ludwig Feuerbach are appropriate “God is not liable to
offence; and even if he were offended, He would not under any circumstances wish the
punishment of his offenders.”31

As a growing economy and a developing country we must bear in mind that the concept of
blasphemy was a concept developed and fit for a pre-modern society, led by a government
which is not secular and democratic. Any such law which restricts the freedom of speech and
expression on the basis of how much others react leaves a person’s freedom on the wimps of
a particular section of the society only.

As the Supreme Court noted in the case of Shreya Singhal 32 there exists a difference between
“incitement” and “advocacy”. The court had opined that any such incitement that disturbs the
public order only can be censored. Hereby the only incitement that has to be there is an
incitement of violence. This is where the laws of Blasphemy and hate speech differ. For hate
speech, the speech itself should contains elements that incites violence, or propagation of
violence.

Therefore for a developing country like India, democratic aspects must put ahead and
religious intolerance should be controlled. Constructive discussions and scientific temper
must be developed and promoted.

31
European Commission for Democracy through Law, Blasphemy, Insult and Hatred: finding answer in a
Democratic Society, (Vol.47, Science and technique of Democracy, Council of Europe 2010) pg.65
32
AIR 2015 SC 1523

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