The executive seems more fragile than hurt sentiment Premium

There seems to be an increased use of Section 153A IPC and Section 295A IPC, going by data and anecdotal evidence

‘India appears to be no longer the country to hold and express opinions challenging majoritarian rhetoric’ | Photo Credit: Getty Images/iStockphoto

In yet another brute show of power, Dr. Ratan Lal, a Dalit academician, was arrested for an ‘objectionable’ post on the Gyanvapi mosque row. He is alleged to have promoted disharmony or enmity between religious groups (Section 153A in the Indian Penal Code) and intentionally and maliciously hurt religious sentiments (Section 295A in the IPC). His arrest adds to the trend of increased use of the two provisions.

The latest annual report of the National Crime Records Bureau records more than four jumps (458%) of cases registered under Section 153A since 2014; it almost doubled in the last two years. This does not necessarily mean hurtful comments surged all of a sudden, as conviction could only be secured in merely 20.4% of cases. Though no separate data is available on Section 295A, anecdotal evidence suggests its increased use by the executive.

Legislative history

The increased use of these penal provisions draws our attention to the circumstances in which they were enacted. In 1927, when Section 153A was already in existence, Section 295A was brought on the demand of a religious minority community which alleged that a pamphlet titled ‘Rangeela Rasul’ published objectionable content against its founder.

The Legislative Assembly debates at the introduction of Section 295A expressed concern about its subjectivity that could be misused. The rationale behind the provision was to deal with intentional insults to religion or outraging religious feelings. At best, the Assembly members found it a temporary remedy for a temporary aberration, not one that would be in active use a century later.

A more direct measure was incorporated through Section 295A, which would not require proving that the speech promoted enmity or hatred between classes; now, a hurt sentiment would be enough. It can be argued that it safeguarded the spirit of tolerance amidst religious diversity. But its enhanced misuse raises the question: safeguard for who and against what?

The debates sensed and cautioned against a looming threat over free speech. It was anticipated that it could be misused to suppress honest, candid, and bona fide criticism, and hinder historical research towards social reform. If individuals were allowed to register complaints about a hurt religious sentiment, the courts would be flooded with frivolous cases. Then there would be a sweeping class of offences, where it cannot be objectively adjudicated if a crime has been committed.

Some safeguards

However, there were statutory safeguards that required deliberate intention and malice; and judicial rulings that needed looking at — words used, intent, and effect to ascertain criminality. Only a deliberate and aggravated form of religious insult would attract the rigor of the provision.

The judiciary laid down two ways to measure the effect — one by establishing a link between speech and public disorder, and by measuring the effects from the standards of a reasonable man, and not from one who fears all hostile viewpoints. However, no attempt was made to translate the safeguards into practice, which could have shielded the dear ethos of free speech. A half-hearted attempt left us with a law that cannot be enforced appropriately and is being let loose to chase the dissenter.

Element of subjectivity

Unlike bodily harm that can be verified, sentimental hurt cannot be tested against strict measures. The element of subjectivity overrides it as a sentiment’s vulnerability could widely vary, even among those of the same religion.

A critical inquiry of orthodox practices and superstitious beliefs encourages social reforms. The need for an intelligent counter is required much more amid the aggressive assertion of religious beliefs by the socio-political hegemon. Even the 1927 Joint Select Committee appreciated the argument that a religious insult inflicted in good faith, with the object of steering reform, would bring the follower’s required attention to the critique.

India’s Constitution celebrates diversity with the guarantee of free speech. With that aspirational pledge, should not the answer to hurt religious sentiment be tolerance, and not rampant criminalisation? This may be an unreal expectation in times of widespread hate and disharmony. It is anomalous for a pluralistic, democratic, and secular nation that runs on counter-discourses to criminalise speech for hurting fickle religious sentiments.

Even the statutory safeguards of ‘deliberate intention and malice’ cannot be objectively determined. The police do not get into the legislative nuances before registering a criminal case or making an arrest. Philosopher Martha Nussbaum critiqued the law by saying that it invites thugs to suppress speech on anything they dislike; she added that given India’s political climate, several would take up this ugly invitation. A hazy legal paradigm criminalising hurting religious sentiment facilitates the ruling dispensation’s strategy to stifle all dissent and use the law to fuel divisive politics.

On raging criminalisation of free speech, senior advocate Indira Jaising said that repeated use of law to stifle dissent reflects state policy. “It is not a ‘misuse’; it is being used the way the enforcement agencies want it,” she added. The executive is seemingly more fragile than a citizen’s hurt religious sentiment. It sends out a clear message that be it a stand-up comic script, a remark on the belief of walking barefooted in reverence, or taking beef to school, India is no longer the country to hold and express opinions challenging the state-backed majoritarian rhetoric.

Shrutika is an independent researcher pursuing Master of Laws (LLM) from the Tata Institute of Social Sciences (TISS) Mumbai. Mayank Yadav is a Delhi-based lawyer. The views expressed are personal