The debate is mainly about Vadodara and the Punjab incidents. My initial feeling that they are unrelated – because the former was a private exhibition whereas the latter was in the public realm – cannot be legally sustained. (Here, I thank Mr.Srinivasan, though I am not sure whether his reservation against my earlier stand was on similar grounds). In other words, the fact that Vadodara was a private exhibition, meant for peer review cannot be the sole ground of defence for Chandra Mohan. Section 295 A IPC – which is applicable in both Punjab and Vadodara cases – is silent on whether an exception could be granted if the alleged act took place in the private realm. The possible view that this qualification has to be read into the provision makes no sense, as the alleged act, even if held in the private realm, can come within the scope of this section. The test has to be whether Chandra Mohan and Dera Chief had “deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, and insulted the religion of that class.” I am revising my earlier view that the test has to be whether the alleged act is likely to lead to disturbance of law and order. I based that view on the rationale underlying this provision, which is the maintenance of public peace and tranquility in India, where religious passions can be easily aroused and inflamed.
While reading on this issue, I came across an insightful article by Soli Sorabjee in the book Law and Justice: An Anthology, edited by him (Universal Law Publishing Co.Ltd.,2003). He cites from the Report of the Select committee in connection with the enactment of S.295A in the IPC in 1927. The Committee was impressed by an argument that an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a sock to the followers of the religion as would ensure notice being taken of any criticism so made. We have therefore amplified the words ‘with deliberate intention’ by inserting reference to malice, and we think that the section which we have now evolved will be both comprehensive and at the same time of not too wide an application.”
In Ramji Lal Modi v. State of Uttar Pradesh (AIR 1957 SC 620), the Supreme Court upheld this section, and reasoned that it did not penalize any and every act of insult to religion or the religious beliefs of a class of citizens but was directed to acts perpetrated with the deliberate and malicious intention of outraging the religious feelings of a class of citizens. “The calculated tendency of this aggravated form of insult is clearly to disrupt the public order….” (from the SC Judgment in this case).
However, it is, in my view, possible to suggest that an alleged act may not have this tendency; in other words, disruption of public order need not be a test to determine whether an alleged act falls within the four corners of this section.
Sorabjee says: “One may legitimately criticize the tenets of a particular religion and characterize them as illogical or irrational or historically inaccurate. But it is not permissible to condemn the founder of a religion or the prophets it venerates as immoral persons or frauds and charlatans. Courts would in such cases probably infer a “deliberate and malicious intention” to insult the religion, particularly if the language is abusive or vituperative. Ultimately, it depends upon the approach of the judges. Do they attach more weight to freedom of expression or are they more concerned with preservation of peace and order?”
He continues: “ The authorities deem it prudent to play it over-safe. The tendency is to ban a book or a play, if there is the slightest possibility of demonstrations and disturbances, to forfeit it and drive the aggrieved person to court to obtain a judicial verdict.”
Sorabjee cites from the observation of five dissenting members of the Select Committee which approved S.295A: “It’s a regrettable concession to fanaticism, it will on the contrary, make the situation worse; each side will accuse the other of publishing writings which are against their religion, and government will again be seen siding with one party or the other.” Another member warned: “It will only accentuate the evil which it is meant to remove. Far from healing the differences which will linger, or which now and then come to the surface, it would widen the gap by encouraging insidious men to do mischief in stealth…” Sorabjee says his objection was not only perceptive but prophetic. According to Sorabjee, criminal laws prohibiting hate speech and expression will encourage intolerance, divisiveness and unreasonable interference with freedom of expression. “We need not more repressive laws but more free speech to combat bigotry and to promote tolerance”, he says.
Put in this historical context of the genesis of S.295A, I feel both Chandra Mohan and the Dera Chief cannot be accused of deliberate and malicious intent – the true test for invoking this Section. They are not guilty of using abusive or vituperative language or sign. Clearly, there has been a concession from the authorities to crossing the limits of tolerance as perceived by a section of the people. The number of people wrongly feeling outraged in Vadodara may be less, and more in Punjab, but that itself does not justify the use of S.295 A.
Does the law needs amplification, as suggested by Mr.Dilip, so as to make it detailed with reference to the scope of this section? I think that would further curtail the scope of freedom of expression, even though it may be justified on the basis of past experience. It can be suggested that the Courts could decide whether S.295 A is attracted, depending on the facts and circumstances of each case. A list of such acts falling under S.295A as Mr.Dilip suggests, may be an answer to limit the discretion of the courts which may be carried away by the ‘disturbance to law and order’ argument. At the same time, it helps to know what act is likely to outrage a particular religion. However, we need to take precautions that the Khajuraho sculptures and their modern counterparts do not become vulnerable to misconceived attacks from the moral police due to such legal amplification.
The Dera chief would not have had deliberate and malicious intention to insult the Sikhs by dressing like their Guru. But it needs to be asked why he did it in the first place. If it is an inadvertent error, then including this act in the proposed list under S.295 A, would stop repetition of similar acts. After all, what great freedom of expression is involved in this? If a particular form of dress is likely to offend a religion, why should a person have a licence to wear that dress in public, especially when that person himself is a public personality, and his actions and symbols are closely scrutinized by public for hidden messages?
In the case of Vadodara painting, Chandra Mohan’s painting would have been entirely due to academic interests. Since such actions need legal protection from vandalism, there can be a proviso to S.295 A clearly mentioning that if the alleged act was done in the course of an academic study, meant for peer review, and not strictly for public exhibition, the section would not apply. That way, we could balance the demands of free expression as well as the compulsions to protect religious sentiments from being outraged by irresponsible or inadvertent actions by individuals.