Debate surrounding comments by BJP spokespersons Nupur Sharma and Naveen Jindal shed light on the law which deals with criticism or insult of religion. The provisions of the Indian Penal Code (IPC), mainly Section 295A, define the contours of freedom of expression and its limits in relation to religion-related offences.

India does not have a formal legal framework to combat hate speech. However, a set of provisions, loosely referred to as hate speech laws, are invoked. These are mainly laws aimed at dealing with offenses against religions.

Section 295A and others

Section 295A defines and prescribes punishment for willful and malicious acts, intended to outrage the religious feelings of any class by insulting its religion or religious beliefs.

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“Whoever, with the willful and malicious intent of outraging the religious feelings of any class of citizens of India by words, spoken or written, or by signs or by visible representations or otherwise, insults or attempts to ‘insult the religion or religious beliefs of this class, shall be punished with imprisonment of either description for a term not exceeding [three years]or with a fine, or with both,” reads the IPC section.

Section 295A is one of the main provisions of the ICC chapter to punish religious offenses. The chapter includes offenses to punish the damage or defilement of a place of worship with the intention of insulting the religion (article 295); trespassing on a burial site (section 297); uttering words, etc., with the deliberate intention of hurting a person’s religious feelings (section 298); and disturbing a religious assembly (article 296).

Section 295A has been invoked on a wide range of issues from criminalizing political satire and seeking book bans or removals to even political criticism on social media.

The state often invokes Section 295A as well as Section 153A of the Indian Penal Code, which criminalizes the promotion of enmity between different groups on the grounds of religion, race, place of birth, residence, language , etc., and doing acts prejudicial to the maintenance of harmony and article. 505 of the CPI which punishes public mischief.

In cases where such speech is online, Section 66A of the Information Technology Act which punishes the sending of offensive messages through communication services is added. In a landmark verdict in 2015, the Supreme Court declared Section 66A unconstitutional on the grounds that the provision was “vague” and constituted a “violation of freedom of expression”. However, the provision continues to be invoked.

The broad and vague terms of laws are often invoked in their misuse. Lower conviction rates for these provisions indicate that the process — where a police officer can arrest without a warrant — is often the punishment. Critics have pointed out that these laws are aimed at having the state intervene and restore “public order” rather than protecting free speech.

Origins of the law

The colonial origins of hate speech provisions are often criticized for the assumption that Indians were susceptible to religious arousal. In a 2016 article in the Economic and Political Weekly, jurist Siddharth Narrain notes that the First Indian Law Commission, headed by TB Macaulay who drafted India’s penal code, wrote to the Governor General of India in 1835 that “there is perhaps no country in which the government has so much to apprehend from the religious agitation of the people”.

Section 295A was introduced in 1927.

In his book Offend, Shock or Disturb, lawyer Gautam Bhatia writes that the antecedents of Section 295A lie in “the community-laden atmosphere of northern India in the 1920s”. The amendment was a spin-off from an acquittal under Section 153A of the IPC by the Lahore High Court in 1927 in the Rajpaul v. Emperor case, popularly known as the Rangila Rasool case.

Rangila Rasool case

Rangila Rasool was a tract – published by a Hindu publisher – which made disparaging remarks about the private life of the Prophet. Cases against the first pamphlet, filed under Section 153A, were dismissed by the High Court of Punjab and Haryana, which considered whether targeting religious figures is different from targeting religions .

When a second similar article was published, it raised tensions. While the magistrate sentenced publisher Rajpaul under Section 153A, the Lahore High Court ruled that a “libelous and gross attack” on a religious leader would prima facie fall under Section 153A – although not all reviews are the same.

This interpretative debate prompted the colonial government to enact Section 295A with a broader scope to address these issues.

Later cases

In 1957, the constitutionality of Section 295A was challenged in Ramji Lal Modi v State of Uttar Pradesh. The Supreme Court upheld the law on the grounds that it was introduced to preserve “public order”. Public order is an exception to the fundamental right to freedom of speech and expression and the right to religion recognized by the Constitution.

In a 1960 decision, in Baba Khalil Ahmed v. State of Uttar Pradesh, the Supreme Court said the defendant’s “malicious intent” can be determined not only from the speech in question , but also from external sources.

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In 1973, in Ramlal Puri v. State of Madhya Pradesh, the Supreme Court has said that the test to be applied is whether the speech in question offends “the ordinary man of common sense” and not the “hypersensitive man”. However, these determinations are made by the court and the distinction can often be vague and vary from judge to judge.

In Baragur Ramachandrappa v State of Karnataka, a 2007 Supreme Court decision, “a pragmatic approach” was invoked in the interpretation of Section 295A. The state government had issued a notification banning Dharmakaarana, a Kannada novel written by award-winning author PV Narayana on the grounds that it was hate speech, citing a range of provisions including Section 295A . The pragmatic approach was to restore public order through the “confiscation” of a book to the detriment of the individual interest of freedom of expression.