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History

In 1953 and 1960 there was more freedom to criticise than in 2018

AAKAR PATEL, On matters of god and faith, our skin is thinner than it used to be, December 2, 2018: The Times of India

Journalist Abhijit Iyer-Mitra has been in jail since October 23 for making sarcastic comments about the Sun temple and Jagannath Puri in Odisha. It is absurd that the government should have arrested him for making a sarcastic comment, and all of us should be offended by the fact that he remains in prison.

The other thing of concern is the Supreme Court’s observation that Iyer-Mitra was “inciting religious faith of the country. It isn’t a case for bail.” As also the chief justice’s remarkable observation that “if your life is in danger, then what better place to stay than jail?”

I wrote something years ago for a Pakistani newspaper about their blasphemy law, comparing it to our laws. What struck me was that India has regressed on the issue of freedom of speech in religion.

On May 27, 1953, the Tamil reformer EV Ramaswami Naicker smashed an idol of Lord Ganesha in public at the Town Hall maidan in Tiruchirapalli. Naicker, who was angered by Hinduism’s caste system, made a speech announcing his intention to do this before breaking the idol. Veerabadran Chettiar, an offended Hindu, filed a case against Naicker under two laws.

Section 295: “Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment... which may extend to two years.”

Section 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...”

The Tiruchirapalli magistrate dismissed the petition. On the first charge, he said that simply because the mud figure resembled Lord Ganesha it cannot become an object held sacred. He accepted an offence was made out on the second charge (295-A), but that law required government sanction for the case to be registered, which had not come. He dismissed that also. The petitioner appealed. The sessions judge dismissed the appeal. He agreed with the magistrate, saying the idol was the private property of those who broke it.

The matter went to high court. The judge said the idol broken did not come within the scope of “any object held sacred by any class of persons”. An idol in a temple or one in a religious procession would, he clarified, but not any object resembling a deity. Even a toy in such a shape would otherwise qualify as being sacred. No offence was made out, the judge said, and dismissed the appeal. On to the Supreme Court. On August 25, 1958, Justice (later chief justice) B P Sinha said the high court was wrong to have imported meaning into the words “held sacred”. It was not necessary for the object to have been worshipped for it to be sacred. For instance, the Bible, the Quran and the Guru Granth Sahib were also objects held sacred. Sinha asked the judiciary to be circumspect in such matters and consider the feelings and religious emotions, irrespective of whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the court.

However, after making these observations, Sinha then dismissed the appeal saying the matter had become “stale” since five years had passed. What his observations did was not to set a precedent, which would have happened had the case been dismissed on merit.

Two aspects are important here. First, a tolerance for offences against god shown by India’s lower judiciary. Second, and this is from Sinha, a reminder that such offences are likely to have consequences and, therefore, should not be encouraged. On April 20, 1960, the Allahabad High Court fined a man, Khalil Ahmad, Rs 1,200 after he sued for getting his books released. He had written texts praising Yazid (murderer of Imam Hussain at Karbala and therefore offensive to Shias) and his father the tyrant Muawiya, saying they had a place in heaven according to the Hanafi consensus. The state then seized his books. The judges cited Justice Sinha’s observation in ruling against him.

Today, it is not possible to conceive that our judiciary and our society would permit what happened in the time of Naicker (also called Periyar, founder of the Dravidian movement). Our skin is thinner than it was, and our citizenry and our judiciary much less relaxed about being offended.

Atheists/ atheism

HC: Can’t direct authorities to issue ‘atheist’ certificate

Oct 4, 2019: The Times of India

Can’t direct authorities to issue ‘atheist’ certificate: HC

Chandigarh:

The Punjab and Haryana high court has held that if a person has chosen to be an atheist and not to believe in any caste and class, there would be no requirement in law for him to be issued a certificate to such effect. The high court was also of the view that the courts cannot issue directions to the authorities to issue a certificate to anyone of being an ‘atheist’, or a person of no caste, no religion, and no God.

Justice Tejinder Singh Dhindsa of the HC passed the order while dismissing a petition filed by Ravi Kumar ‘Atheist,’ a resident of Tohana in Haryana’s Fatehabad district. He had approached the HC after district authorities had cancelled a certificate issued to him by the naib tehsildar that declared him an “atheist.”

Ravi, who had fought a long legal battle to use ‘Atheist’ as his last name, had been issued the “no caste, no religion, no God” certificate by the Fatehabad district administration on April 29 this year. The district authorities, however, withdrew it on May 4, saying that the Tohana naib tehsildar had exceeded powers by issuing this certificate. Aggrieved from this, the petitioner had approached the HC.

Free to criticize religions but not with hate: Court

Upholds Ban On ‘Malicious’ Book

Swati Deshpande | TNN

From the archives of The Times of India 2007, 2009

Mumbai: A three-judge bench of the Bombay high court on Wednesday held that in India, criticism of any religion — be it Islam, Hinduism, Christianity or any other — is permissible under the fundamental right to freedom of speech and that a book cannot be banned on those grounds alone.

However, the criticism must be bonafide or academic, said the court, as it upheld a ban issued in 2007 by the Maharashtra government on a book titled ‘Islam — A Concept of Political World Invasion by Muslims.’ The book contained an ‘‘aggravated form of criticism made with a malicious and deliberate intention’’ to insult Muslims, the court said.

While upholding the ban, the court’s verdict brought joy to rights activists. “In our country, everything is open to criticism and religion is no exception. Freedom of expression covers criticism of religion and no person can be sensitive about it,” it said.

The bench of Justices Ranjana Desai, D Y Chandrachud and R S Mohite, said, ‘‘Healthy criticism...encourages debate and helps us evolve. But criticism cannot be malicious and must not lead to creating ill-will between different communities... (it) must lead to sensible dialogue.’’

Between Lines

Bombay high court was considering a ban imposed on a book on Islam by Maharashtra govt in 2007 Court says ‘‘bonafide’’ criticism of a religion came under the purview of freedom of speech and ‘‘no person can be sensitive about it’’ Upholding ban, it said book in question made ‘‘insulting comments’’ on Islam Says courts must strike balance between freedom and permissible curbs

Contentious Issue Book ban: Author to appeal before SC

Mumbai: While upholding the ban on the “malicious” book, the 150-page Bombay high court verdict penned by Justice Desai observed that albeit “a difficult task”, courts must strike a balance between the guaranteed freedom and permissible restrictions.

The book, authored by R V Bhasin, a Mumbai-based advocate, in 2003 had been in circulation for four years before the state felt the need to ban it for ‘‘several derogatory and false statements about Muslim religion, the community, Mohammed Paigambar and Muslim priests’’. Bhasin later told TOI that he would go to the Supreme Court in appeal. ‘‘Freedom of speech cannot be blocked on interpretation,’’ he said.

Bhasin challenged the ban the same year and his counsel J P Cama argued at length that freedom of speech and expression has to be protected and unless a book gives rise immediately to a present and sudden danger of disrupting communal or societal peace, its ban cannot be justified. He said the author placed certain lesser-known aspects about Islam before the people and said, ‘‘Assuming he is wrong, he has a right to be wrong.’’

But justifying the state’s ban was advocate general Ravi Kadam and later Yusuf Muchala, the counsel for a few intervenors, including Indian Union Muslim League, Maharashtra Muslim Lawyers Forum, Islamic Research Foundation, Jamat-e-Islami-e-Hind and Bombay Aman Committee. One intervenor, I G Khandelwal, from Right to Read Foundation, supported the author.

The bench had reserved the matter for judgment last August after a lengthy hearing. The court said, ‘‘The author can say what he feels is right and if it is wrong, he cannot be punished for it. But what needs to be seen is whether it was done bona fide with real desire to explore the tenets of Islam and give his exposition,’’ In this case, the court held that the criticism of Islam and ‘‘insulting comments with particular reference to Indian Muslims’’ were ‘‘not academic’’. ‘‘It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims. The contents are so interwoven that it is not possible to excise certain portions and permit circulation of the book,’’ the court said. The author had declined an earlier suggestion to delete certain parts.

A person may have a right to say a particular religion is ‘‘not secular’’, said the HC, but it cautioned against rabid contents ‘‘reeking of hatred for a particular community’’ and ‘‘malafide exercise to stir communal passions’’.

Freedom to deny god’s existence

2019: Madras HC upholds it

Sep 6, 2019: The Times of India

Followers of social reformer Periyar E V Ramaswamy and members of the Dravidar Kazhagam (DK) have a fundamental right to disagree with the existence of God and religion, just as others’ right to express their views on these issues, Madras high court ruled.

Declining to order removal of Periyar’s atheist views engraved on the pedestal of his statue in Trichy, which said those who believe in God were fools and barbarians, a division bench said: “If the petitioner has a constitutional right under Article 19 of the Constitution to express his views on religion and existence of God, in the light of the decision of Supreme Court in Lalai Singh Yadav’s case, we are of the view that DK and the members of the party or followers of Thanthai Periyar, ...have a right to disagree with the same.”

The division bench comprising Justice S Manikumar and Justice Subramonium Prasad rejected the contention of the petitioner, M Deivanayagam, that Periyar never called believers barbarians and that those words were engraved after his lifetime by DK. “We are of the view that it is an undisputed fact that Thanthai Periyar, in all his speeches, publications from 1928 had declared that there is no God; God doesn’t exist; one who has created is a fool.” The statue was unveiled on September 17, 1967, when Periyar was alive, at Trichy bus stand.

It was Deivanayagam’s contention that the inscription was offensive and that Periyar had addressed thousands of meetings where he never uttered such words.

DK president K Veeramani, who had been impleaded in the case, however, described it as ‘publicity interest litigation’ and filed a counter-affidavit saying the inscriptions were made only at the instance of Periyar. He said: “Thanthai Periyar had foreseen the situation that if there is no such inscription in the statues, these statues will also be made as God and people will start worshipping them.”

Supreme Court on Section 295A of IPC

SC: Not all `insults' to religion are offences

AmitAnand Choudhary, SC: Not all `insults' to religion are offences, April 22, 2017: The Times of India

In a pronouncement that reiterates the constitutional protection to freedom of speech and expression, the Supreme Court has said that unwitting or careless “insults“ to religion should not be prosecuted as this would amount to misuse of law.

Concerned by the misuse of Section 295A of IPC, which provides up to three years' jail term for hurting religious sentiments, the Supreme Court limited the applicability of the penal provision to deliberate and malicious acts rather than casual observations that are not driven by malicious intent.

“Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section,“ a bench of Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar said.

The bench passed the or der on a plea by cricketer M S Dhoni challenging criminal proceedings against him for hurting religious sentiments for being portrayed as “Lord Vishnu“ on the cover of a business magazine in 2013. The SC's interpretation should protect individuals and public figures that have often been at the receiving end of cases filed by political activists, cause chasers and overzealous or vengeful administrative authorities.While the SC decision to strike down in entirety Section 66A of the Information Technology Act, 2000 for being violative of the right to freedom of speech and expression provided relief to social media users, the SC has reiterated the limits of Section 295A. The section says that an offence will be made out by “deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs“.

Despite a 1957 judgment of the SC that Section 295A could not be slapped on a person for unintentionally hurting religious sentiments, the rampant misuse of the penal provision persuaded the bench to clarify yet again the width and ambit of the legal position.

“It is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalises only those acts of insults or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens,“ the bench said.

“The Constitution bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty ,“ the court said while referring to the 1957 Constitution bench verdict of the apex court.

A slew of Bollywood actors have had to face criminal proceedings under the section and in 2016, stand-up comedian Kiku Sharda was arrested for allegedly mimicking Dera Sacha Sauda chief Gurmeet Ram Rahim Singh on his show.

In September 2014, Salman Khan was accused of insulting Muslim sentiments when a model walked the ramp with an Arabic word inscribed on her T-shirt at a fashion show organised by his NGO, Being Human, and a police complaint was filed against him.

A case was also registered against actor Aamir Khan for hurting religious sentiments for dressing as Lord Shiva and pulling a rickshaw on which two burqa-clad women were sitting in his film `PK'.