- Rongeet Poddar*
Introduction
The Punjab Assembly has unanimously passed The Indian Penal Code (Punjab Amendment) Bill, 2018 recently to add Section 295AA to the Indian Penal Code which states that “whoever causes injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwad Geeta, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punished with imprisonment for life.”[1]
In 2016, the Punjab Government had proposed to include a similar provision for imposing life imprisonment for intentional acts that desecrate the Sri Guru Granth Sahib solely. However, the President had then returned the Bill passed by the Punjab Assembly.[2] The reasoning advanced for the same[3] was that the Bill was contrary to the constitutional mandate of secularism which was held to be a part of the basic structure doctrine in the landmark case of S R Bommai v. Union of India.[4]
In a bid to overcome this hurdle, the state government of Punjab has revamped the provision to include the holy books of three other specific religions in the provision initially envisaged. The government seems to have deliberately ignored the fact that Section 295A of the Indian Penal Code already punishes deliberate or malicious acts that insult religion or religious beliefs of any class of people.[5] Besides, the provision suffers from several other flaws. It is based on a misguided notion of popular morality. It offers an unwarranted deterrence on free speech in the process by ignoring the settled law. Here, I shall argue that it is unlikely that Section 295AA can withstand judicial scrutiny and explore the many reasons for the same.
Violation of Article 14
In the presence of the all-encompassing provision of Section 295A, the separate enactment of Section 295AA for ‘sacrilege’ of specific religious texts is unnecessary especially when the misuse of the existing section is well documented.[6] The offence of sacrilege to specific religious texts can be incorporated within the ambit of Section 295A itself. Section 295AA falls foul of the two prong intelligible differentia and rational nexus test that had been adopted by the apex court in State of West Bengal v. Anwar Ali Sarkar for interpreting Article 14 of the Constitution. As per this test, there ought to be an intelligible differentia between those that are grouped together and the others. This intelligible differentia must have a rational nexus to the object sought to be achieved by the provision.[7] An example of the application of this test is the case of Mithu v. State of Punjab. Here, Section 303 of the IPC was in contention and the Supreme Court had failed to find any intelligible basis for necessitating differential treatment for a convict who committed the offence of murder under a sentence of life imprisonment vis-à-vis any another accused of murder. Section 303 of the Indian Penal Code which offered no judicial discretion and mandated death penalty for murder committed by a life convict was thus invalidated. [8]
In the instant case as well, there is no legitimate cause for artificially constructing a dichotomy for the offence of sacrilege to religious texts against the general penal provision for insulting religion which incidentally prescribes a maximum imprisonment of three years. The injury or damage to four specific religious texts cannot be singled out for special treatment in the absence of any reasonable basis for the same. There is also a complete absence of intelligible guidelines for the imposition of life imprisonment. The classification is thus not based on any identifiable differentia and it fails to meet the lofty standard that Article 14 requires.
There is yet another problem with the provision which makes it ultra vires Article 14. In Shreya Singhal v. Union of India, vagueness was identified as a ground for rendering Section 66A of the IT Act as unconstitutional since the language used in the provision did not demarcate the nature of the offence with sufficient definiteness and suffered from lack of clarity. [9] Similarly, in this case, Section 295AA is a poorly drafted provision. It uses overly broad phraseology requiring that the person committing this offence must intend to hurt ‘the religious sentiments of the people.’ This calls for a subjective assessment of what constitutes an injury to religious sentiment given that every section of a religious community may offer a different viewpoint with regard to what offends its religious sensibilities. This is further exacerbated by the lack of a legal definition for sacrilege which Section 295AA does not seek to rectify. Instead, the word is preceded by the words ‘injury’ and ‘damage’. This raises serious questions regarding the scope of the provision – does it only criminalize the physical damage to these holy texts, say, in the form of burning a holy book or does it also include expressing an opinion contrary to the ideas expressed in a text? The overbroad nature of Section 295AA brings with it the danger of arbitrary application. There may be deliberate attempts of law enforcement agencies to fit a certain conduct of an accused within the scheme of Section 295AA by overlooking the existing Section 295A. Section 295AA can thus be said to be contrary to Section 14 for arbitrariness.
Violation of Article 21
Section 295AA, with its mandate of life imprisonment, appears to be grossly unreasonable for the specific offence of sacrilege of religious texts which can be categorized as a separate sub-group within the wide sphere of Section 295A.
The reasonableness of life imprisonment for insulting the specified religious texts can be challenged on the basis of the precedent established in Maneka Gandhi v. Union of India[10] where the Supreme Court had laid down that the requirement of the procedure established by law under Article 21 of the Constitution must be just, fair and reasonable. As discussed previously, Section 303 of the IPC which provided for mandatory death penalty for murder committed by a life convict did not allow for the exercise of any judicial discretion and instead prescribed death penalty. Besides falling foul of Article 14, the provision was also held to be unconstitutional on the basis of the standard of ‘reasonableness’ in Article 21, elucidated in Mithu v. State of Punjab. [11] Section 295AA, likewise, completely excludes judicial discretion and calls for a blanket sentencing of life imprisonment for acts of sacrilege to religious texts. The mandatory imposition of such a drastic penalty also rests on the subjective standard that perceived ‘insults’ to a few religious texts are severely detrimental to the interests of the public at large. The deprivation of life and liberty must be based on concrete reasons coupled with the exercise of due judicial restraint. Thus, the provision can be considered violative of the test of reasonableness that Article 21 envisages.
Constitutional Morality
Section 295AA interestingly selects the holy books of four specific religious communities for protection against ‘sacrilege’ while the 2016 provision clearly targeted the protection of one particular holy book. While the proposed Section 295AA in 2016 had singled out the holy book for the majority community in the State of Punjab thereby offering scope for proponents of other religions to raise their voices, the 2018 provision, in a bid to make the provision more ‘secular’, adds the holy texts of three other major religious communities. The addition of the three holy texts seems to be an afterthought due to concerns about the possible resentment that the selective treatment offered to a specific religious text would have caused to the people belonging to the other major religious communities. Therefore, the inclusion of three more religious texts was made to the original provision to dispel the notion that the government is pandering only to the interests of a particular religious group. This appears to be a calculated move to showcase an image that the government is concerned about the interests of the other religious communities as well.
The State government of Punjab should have instead taken a cue from the Delhi High Court’s decision in the Naz Foundation v. Union of India [12] where the court had admirably performed a counter majoritarian role. The High Court had distinguished between popular morality and constitutional morality and laid down how popular morality is based on subjective notions of right and wrong. The recent decision of the apex court in Navtej Singh Johar v. Union of India [13] has reiterated that popular sentiment cannot be equated to constitutional morality which is an embodiment of the core values in our Constitution and noted that “any attempt to push and shove a homogenous, uniform, consistent and a standardized philosophy throughout the society would violate the principle of constitutional morality.”
Laws must be based on compelling state interest that would derive its origins from values enshrined in the constitution and not capricious social mores. Public impulse cannot be a plausible guide for enacting laws. While, in 2016, the Punjab government appeared to have been swayed by the demands of those espousing the cause of the majority community in the State, the balancing act attempted by the government two years later is once again based on the fear of public disapproval. The State government must not indulge in portraying itself as a harbinger of what is a populist conception of justice by creating a law based on popular morality and imposing life imprisonment as a consequence of violation.
Chilling Effect on Free Speech
In Ramji Lal Modi v. State of U.P., the constitutional validity of Section 295A had been called into question. The Supreme Court had upheld the provision. The reasoning adopted by the apex court was that the section does not penalize every act of insult to religion but only those acts which are accompanied by the deliberate and malicious intention of outraging religious feelings.[14] The object of the section was said to punish aggravated forms of insult that have the calculated tendency to disrupt public order. Such criminalization would come under the ambit of clause (2) of Article 19 for imposing a reasonable restriction on the exercise of the right to freedom of speech and expression.[15]
The validity of this reasoning is questionable today in light of the Supreme Court’s decision in Shreya Singhal v. Union of India where the court has held that laws restricting free speech should be narrowly tailored so that only explicit ‘incitement’ is criminalized for the public order restriction in Article 19(2) to be brought into play.[16] In Brandenburg v. Ohio [17], the US Supreme Court had identified the distinction between ‘advocacy’ and ‘incitement’ of violence and had held that the former was protected by the right to free speech but the latter was not. [18] The Shreya Singhal decision adopted this standard in interpreting Article 19 (2) and held that free speech can only be reasonably restricted when it reaches the threshold of incitement to violence. [19] The scope of Article 19(2) today is thus very narrow for imposing a public order restriction. A clear arousal of potential violence is a necessary pre-requisite for inviting an Article 19(2) constraint.
The drafting of Section 295AA ignores this aspect of ‘incitement’ entirely and imposes a blanket restriction on ‘sacrilege’ of certain religious texts, based on interpreting the ambiguous requirement of hurting religious sentiments of the people. The standard for preserving public order ought to be one of which is much higher than mere hurting of religious sentiments. It is unclear as to how this provision will be interpreted to distinguish between a mala fide intention to disrupt public peace and genuine criticism to a religious text. Hypothetically speaking, if a concerned religious text espouses an idea that is contrary to the established notions of modern science and a free thinking member of the society offers a critique, this law offers the ideal ammunition for harassment under the garb of assuaging hurt to religious sentiments. In the process, it creates an excessive curb on free speech. It prohibits mere advocacy of such nature which clearly does have any bearing on the disruption of public order. Therefore, it is difficult to identify any compelling state interest for the restriction of free speech by virtue of Section 295AA. This particular provision is thus likely to have a chilling effect on any constructive criticism of religious texts from a rationalist perspective. Debate is a safety valve of our democracy and this section endangers it significantly.
Conclusion
The contours of any penal provision enacted must be scrutinized in accordance to the mandate of the Constitution. The repercussions of the penal provision also have to be evaluated carefully. Unfortunately, as I have argued, with respect to Section 295AA, the State government of Punjab has utterly failed on both fronts by being overly preoccupied with adhering to public perceptions of what is morally permissible and what is not. Section 295AA would not stand constitutional challenges under Articles 14, 19 and 21 for the reasons discussed. Besides violating the twin tests of intelligible differentia and rational nexus pertaining to Article 14, the provision with its harsh sentencing policy is also contrary to the standard of ‘reasonableness’ that Article 21 calls for. The pernicious tendency of the law to restrict free speech must also be uprooted. Provisions such as Section 295AA have no place in a vibrant democracy such as ours where it would be constitutional sacrilege to placate religious sentiments based on an understanding of popular morality at the cost of overriding the relatively liberal judicial standards of free speech under Article 19. Section 295AA only creates an avenue for religious illiberalism that can threaten to destroy our social fabric in the long run by sowing the seeds of intolerance.
*Rongeet Poddar is a 4th Year Student at the West Bengal National University of Juridical Sciences.
[1] Tufail Ahmad, Punjab’s proposed amendment to blasphemy law Section 295AA: Amarinder’s move arms religious fanatics against free speech(Aug. 28, 2018) https://www.firstpost.com/india/punjabs-proposed-amendment-to-blasphemy-law-section-295-aa-amarinders-move-arms-religious-fanatics-against-free-speech-5035611.html#aid_5035611; Bill seeking life term for sacrilege passed by Punjab assembly(Aug. 29, 2018) https://www.hindustantimes.com/punjab/bill-seeking-life-term-for-sacrilege-passed/story-fh5UCtgpCYWbm0Emh8RiJP.html;Punjab Passes Bills Making Desecration of Religious Texts Punishable with Life Term (August 28, 2018) https://thewire.in/law/punjab-bills-desecration-religious-texts-punishable-life.
[2]Punjab Government to Amend IPC to Award Life Term for Sacrilege (Nov. 20, 2015) https://www.thequint.com/news/hot-news/punjab-government-to-amend-ipc-to-award-life-term-for-sacrilege.
[3] Punjab government withdraws bill proposing life term for sacrilege of Guru Granth Sahib (July 1, 2018) https://www.hindustantimes.com/punjab/punjab-government-withdraws-bill-proposing-life-term-for-sacrilege-of-guru-granth-sahib/story-mzoiaOyxmT5FlZ8YntwuVN.html; Navjeevan Gopal, Punjab for tougher desecration law: Can’t single out religion, Centre returns Bill on Guru Granth Sahib (April 22, 2017) https://indianexpress.com/article/india/punjab-for-tougher-desecration-law-cant-single-out-religion-centre-returns-bill-on-guru-granth-sahib-4623132/.
[4] AIR 1994 SC 1918, para 91.
[5] Section 295A, Indian Penal Code: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs— 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.
[6] Alok Prasanna Kumar, Kiku Sharda’s Arrest Should Prompt the SC to Rethink Sec. 295A (Jan. 14, 2016) https://www.thequint.com/news/india/kiku-shardas-arrest-should-prompt-the-sc-to-rethink-sec-295a; Freedoms only for the outraged (Jan., 18, 2016) https://www.thehindu.com/opinion/editorial/Freedoms-only-for-the-outraged/article14003302.ece.
[7] AIR 1952 SC 75.
[8] AIR 1983 SC 473.
[9] AIR 2015 SC 1523.
[10] AIR 1978 SC 597.
[11] Id.
[12] 2010 CriLJ 94.
[13] Writ Petition (Criminal) No. 76 of 2016.
[14] AIR 1957 SC 620.
[15] Article 19 (2), Constitution of India: Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
[16] Id.
[17] 395 US 444 (1969).
[18] Abhinav Chandrachud, Republic of Rhetoric: Free Speech and the Constitution of India 233 (2017).
[19] Id.
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