By Sumit SaxenaNew Delhi, July 3 : US Founding Father and first President George Washington said: “If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter.” Freedom of speech is one of the most cherished rights and bedrock of democratic government.Several rulings of the Indian Supreme Court have underlined its importance; however, it has always been a contested domain – facing several judicial battles.
A modern society – built on tolerance and knowledge – supports liberty of thought, expression, faith, and worship.
And, the democratic process can resolve competing ideas in connection with people’s freedom to express their view.Article 19 (1) (a) of the India’s Constitution says freedom of speech and expression can be exercised by all citizens.
Against the backdrop of various cases registered for making provocative religious remarks, the question that begs – is the free speech law based on any intelligible set of principles?
According to Section 295A of the Indian Penal Code (IPC), whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens, 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, or with fine, or with both.
From a bare reading, it is apparent that the section criminalises speech by taking into consideration insults caused to the feelings of religious believers, and hands power to those who attempt to shut down speech, therefore making the opposing views weak.
Sections 153A and B of the IPC, deals with hate speech.Section 153A focuses on prohibiting on promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.Section 153B (1) (a) is against those whoever, by words either spoken or written or by signs or by visible representations or otherwise, makes or publishes any imputation that any class of persons cannot, by reason of their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India.
Section 153B (2) says whoever commits an offence specified in sub-section (1), in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.
From a reading, it is apparent that sections are maladroitly worded and not clear on the aspects of free speech, but are rather more focussed on preventing outrage of the group, which claims speech has caused the offence.
On the other hand, Article 19 (2) says the state can impose reasonable restrictions on exercise of rights under Article 19, by framing laws.The Supreme Court used this article to test the validity of the above sections.
In Patricia Mukhim vs Meghalaya (2021), the apex court said: “Mere repugnancy of the ideas expressed is insufficient to constitute the crime attracting penalty.
“The fervent plea made by the Appellant for protection of non-tribals living in the state of Meghalaya and for their equality cannot, by any stretch of imagination, be categorised as hate speech.It was a call for justice – for action according to law, which every citizen has a right to expect and articulate.Disapprobation of governmental inaction cannot be branded as an attempt to promote hatred between different communities.Free speech of the citizens of this country cannot be stifled by implicating them in criminal cases, unless such speech has the tendency to affect public order.”
It held that no case is made out against the appellant for an offence under Section 153 A and 505 (1) (c) IPC.
In Amish Devgun Vs Union of India, the top court pointed out that Section 295-A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.
“Import of Section 295A of the Penal Code, Ramji Lal Modi holds, is to curb speech made with ‘malicious intent’ and not ‘offensive speech’.Criminality would not include insults to religion offered unwittingly, carelessly or without deliberate or malicious intent to outrage the religious feelings.Only aggravated form of insult to religion when it is perpetuated with deliberate and malicious intent to outrage the religious feelings of that group is punishable,” it said.
The rulings make clear that constitutional courts favour promoting free speech, however the wide gap between the interpretation and the actual text of the provisions do not make them immune to misuse.
Since, there is no clear legal framework to criminalise blasphemy or hate speech, the question which originates is that whether criticising religion should be legally penalised? Especially, against the backdrop that blasphemy law, which prevents religious criticism, is contrary to founding values of modern societies and their democratic values.
Sections 295A and 153A of the IPC, cannot establish clear difference between a person who dissents and a person, who stirs up hatred or enmity in others.Therefore, a lot needs to be done to make laws dealing with free speech more robust in consonance with democratic values of the modern public sphere.
Free speech flourishes when there is political stability of some degree, intercommunal harmony, social stability, and a culture of civility.A society may misplace its capacity to adjudicate a conflict, when speech is muted, and also when law is used bluntly, rather than using democratic process to respond and resolve competing ideas.
People should be allowed to voice their opinions and speak their minds in public without fear of being shamed.
(Sumit Saxena can be contacted at [email protected])
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