Section 295A - An Analysis

Section 295A displays its constitutional untenability with respect to the unreasonable restrictions it imposes on freedom of speech and expression by trying to curb legitimate criticism of anything which can be remotely related to “religion”.

Section 295A of the Indian Penal Code (IPC) aims at restraining acts of outraging religious sentiments. The Section talks about deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Acts spoken, written, by signs or by any visible representations, insulting or attempting to insult the religion or religious beliefs fall under the category on an offence under IPC. The offence is classified as a cognizable offence, which means that the police can arrest anyone upon mere ‘suspicion’ or against a ‘complaint’ in furtherance of investigation, or to prevent the any further offence being committed. These provisions in tandem not only perpetuate the possibility for abuse of power by the police, but also curb one’s freedom of speech.

Section 295A from the lens of the Indian Constitution

Article 19(1) (a) talks about freedom of speech and expression but the subsequent clauses of the Article enumerate ‘reasonable restriction’. When we look at the constitutional aspect of Section 295A we see that it falls under the ‘reasonable restriction’ of the said Article, which states that no person should use this fundamental right of freedom of speech and expression to insult or hurt the religious sentiments of any class. This is considered to be a punishable offence.

On the other hand it is felt that this section should not completely stop us from using our rationality. Many sections of our society are into superstitious practices which does no good either to them in particular or to the society in general. Therefore, Section 295A of the Indian Penal Code should not be a hindrance in making the society free from these obsolete practices. There are many self-styled God men, who are just blindfolding the society and if an attempt is made to open the eyes of people, Section 295A should not be there to condemn and reprimand these eye-openers. Similar is the case with the scholars and historians who in their research enter the religious arena, which is a very obvious thing to happen as India in the past has been very rich on the religious aspect and it continues to be the same. This section should not restrict them in their research as it is an inevitable part of a progressive society.

In 1957, a Constitution Bench of the Supreme Court upheld the constitutionality of the said section in ‘Ramji Lal Modi v. State of U.P.’ The Court held that Section 295A IPC does not penalise any and every act of insult to or attempts to insult any religion or the religious beliefs of a class of citizens. The Court cautioned that only those acts of insults or attempts to so insult can be penalised under this provision which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The Court further clarified that the provision would only apply to such aggravated forms of insult to religion that is calculated to disrupt the public order. Further, the intention to offend the Indians citizens of a certain faith must both be deliberate and malicious and must be meant for the Indian citizens of that class.

In Secy. Ministry of Information and Broadcasting v. Cricket Assn. of Bengal, the Court widened the scope of the fundamental right of speech and expression to include the right to educate, inform and entertain and to the right to be educated, informed and entertained. The Court opined that the former is the right of the telecaster and the latter that of the viewers.

Apart from the aforementioned misuse, Section 295A further faces a challenge with respect to the unreasonable restrictions it imposes upon the constitutionally guaranteed freedom of speech under Article 19(1) (a). The Section’s susceptibility to misuse is often justified by critics citing the communally volatile nature of Indian society, which necessitates criminalisation of anything which may be deemed to be remotely religious. This defence of Section 295A is afforded further veracity in light of the fundamental rights pertaining to religious freedom enshrined within Articles 25 to 28 of the Constitution.

In ‘Mahendra Singh Dhoni v. Yerraguntla Shyamsundar’, the Supreme Court of India quashed an FIR filed against Mahendra Singh Dhoni for allegedly hurting the religious sentiments of people when an image of him being portrayed as Lord Vishnu was published in a magazine with a caption “God of Big Deals.” The Court held that Section 295A IPC penalises only those acts of insults to 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. 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. Emphasis was 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 also cautioned the Magistrates who have been conferred with the power of taking cognizance and issuing summons and said that they are required to carefully scrutinize whether the allegations made in the complaint proceeding meet the basic ingredients of the offence.

Conclusion:

Recently, an FIR was registered against a law student for allegedly holding an objectionable placard during a protest held against the Citizenship Amendment Act in Bengaluru. The student was booked under section 295-A of IPC for insulting ‘Hindutva’, thereby perpetuating religious insult. It was argued that Hindutva is a philosophy or a way of life, but not a religion and insult to it cannot be regarded as a religious insult. When somebody insults, even perhaps uses abusive language against 'Hindutva', that is not an insult to a whole religion; and therefore an offence under Section 295A of the Indian Penal Code cannot be made out.

In light of the jurisprudential developments, Section 295A displays its constitutional untenability. It tried to curb legitimate criticism of anything which can be remotely related to “religion”, a term yet to be given a definitive description, and “sentiments”, a term which is inherently personal and malleable to an individual’s will demonstrates it being bad in law. This unreasonable restriction on speech is furthered by its susceptibility to be used a tool for harassment in light of its assigned criminality.