The Telegraph, 12 January 2011
THOU SHALT NOT BLASPHEME
Kannada actress Jaimala was recently charge- sheeted for having hurt religious sentiments when she entered the men-only Sabarimala temple in Kerala. Hemchhaya De examines whether India’s blasphemy law should be revised
At a time when Pakistan’s blasphemy law is in the eye of a storm — the governor of Punjab, Salman Taseer, was assassinated last week because of his opposition to it — India’s version of a blasphemy law is also coming in for flak. It has, in fact, become the major issue in the Sabarimala temple controversy in which Kannada actress Jaimala was recently charge-sheeted for having “outraged” religious sentiments.
In 2006, Jaimala created a stir when she revealed that she had entered the sanctum sanctorum of Lord Ayappa in the Kerala temple in her youth and had touched the idol’s feet. Religious leaders and the temple authorities were highly affronted by Jaimala’s act because females in the age group of 10-50 years are forbidden from entering the temple.
After four years of investigation by the state law enforcement authorities into the alleged act of sacrilege, the actress and two others were booked under Section 295A of the Indian Penal Code (IPC) for intentionally outraging religious sentiments.
Section 295A of the IPC states: “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…which may extend to three years, or with fine, or with both.”
The actress’s revelation in 2006 sparked a furious debate, led primarily by women’s groups, on discriminatory practices in religious institutions. But now that debate seems to have been overtaken by the question as to whether or not Section 295A is an archaic law that goes against the concept of freedom of expression or freedom of worship as guaranteed by the Indian Constitution.
Social activists believe that the law is indeed an anachronism. “Section 295A of the IPC has enough room for abuse as is evident from the Jaimala case. In fact, I am ready to seek the repeal of archaic and redundant blasphemy laws anywhere in the world,” says Swami Agnivesh, social activist and Arya Samaj leader.
Experts say that Section 295A is the closest to what can be regarded as a blasphemy law in India. Of course, Jaimala’s is not an isolated case where Section 295A has been invoked. There have been instances where cases have been filed under the law on flimsier grounds. For instance, early last year a Muslim organisation in Hyderabad filed a case at a local court under this section, accusing tennis star Sania Mirza, her then prospective husband Shoaib Malik, and his alleged former wife Ayesha Siddiqui of misleading the community about their marriage and divorce proceedings — thereby “hurting religious sentiments”.
“Such laws violate the very spirit of the Indian Constitution. Every individual has the freedom or the constitutional right to practise religion in whichever way he or she chooses. For instance, a woman has the right to offer prayers to the deity at a temple like Sabarimala,” says Ranjana Kumari, women’s activist and director, Centre for Social Research, New Delhi. “Of course, every religion has to be respected, but a group of people controlling any particular religion or putting restrictions on the ways of worshipping is simply not acceptable. All these archaic laws tend to be misused by select groups of people who try to control religious practices, thereby trampling upon an individual’s religious freedom,” she adds.
Section 295A has also been invoked from time to time against writers and artists who touch upon controversial religious issues in their works. The legal battle over Taslima Nasreen’s autobiographical novel Dwikhandita is a case in point. In 2004, the West Bengal government issued a notification, based on Section 295A, seeking a ban on the book on account of its “deliberate and malicious intention of outraging the religious feelings of Muslims in India and insult or attempt to insult religion and religious beliefs”. The ban was challenged in Calcutta High Court by human rights activist Sujato Bhadra.
“There were two notifications from the government on banning the book. They objected to two pages in the book, overlooking the larger context of the work. We challenged the notifications on both counts and won,” says Bhadra.
While deciding on the case, a Calcutta High Court bench observed, “If it (an insult) is inflicted in good faith by an author in his/her endeavour or object to facilitate some measure on social reform by administering such a shock to the followers of the religion, as would ensure notice being taken by any criticism so made, (it) would not attract the mischief of Section 295A by reason of the phrase ‘with deliberate and malicious intention’.”
The Supreme Court too had clarified that Section 295A could be applied only when there was a deliberate and malicious attempt to hurt religious sentiments. In a landmark case in 1957, the apex court ruled, “Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings… do not come within the section. It only punishes the aggravated form of insult to religion…”
Activists say that governments have to ensure that freedom of expression as guaranteed by Article 19(1)(a) of the Indian Constitution is not trampled upon when Section 295A is invoked. However, it may be noted here that even though Article 19 guarantees freedom of expression, there are reasonable restrictions on it if it goes against the interest of the country’s integrity and sovereignty and public order.
In fact, legal experts contend that Section 295A and the right to free speech are not necessarily mutually exclusive. “The intention to hurt religious feelings requires a deliberate and malicious act. But a woman not being allowed to touch the idol is an overtly discriminatory practice, and should be unequivocally condemned,” says Shameek Sen, assistant professor, the West Bengal National University of Juridical Sciences, Calcutta.
He adds that similar curbs on artistic freedom should also not be tolerated. “However, that does not, in my opinion, necessitate doing away with this section altogether as it can be a safeguard against deliberate acts calculated to create religious disharmony, riots, etc.”
Nevertheless, in civil society, opinion continues to be divided on Section 295A and the ease with which it can be used to charge a person with having “outraged” religious sentiments. It remains to be seen whether the debate intensifies following fresh turns in the Sabarmala case.
|
