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SECTION 295A OF THE INDIAN PENAL CODE – THE JUNCTURE WHERE CRITICISM ENDS AND MALICE BEGINS.

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India has a long and a sad history of communal violence. Many have lost their lives in the name of religion. These incidents of communal violence mainly occur due to a nasty comment or an act done by someone to defame the religious beliefs of another. To avoid such conflicts and killings, section 295A has been incorporated under the Indian Penal Code which reads as

295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs.— 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 of either description for a term which may extend to three years, or with fine, or with both.

A section which has been held constitutionally valid by restricting it under Art. 19(2) by the Supreme COurt in the Ramji Lal Modi vs. State of UP., many have advocated that section should be completely scrapped. Well to be honest, doing away with this section would be really problematic as it would be very difficult to maintain and sustain peaceful nature of the Indian Society.

A) The Importance of the said section – It is a human tendency to be very protective towards something which is very dear and very valuable and in this case it’s the religion. Indians identify themselves from the religion they follow and profess. Religion plays a very important role in how people conduct themselves in their daily life. This is very obvious as India is the birthplace of 4 major religions of the world namely Hinduism, Sikhism, Buddhism and Jainism. In India, an offensive comment on one’s religion is like defaming the entire community which has the tendency to disturb the peaceful co existential nature of the society. Also Section 295A specifically mentions malice. Malice in legal terms is defined as any act which is done with an ill or a bad intention. Malice in general should never be tolerated because the main purpose of malice is to hurt someone. Deliberately hurting someone’s religious beliefs – something which is very dear to someone and which has the tendency to cause lawlessness in the society should definitely be punishable under law.

B) Criticism of religion is essential – However there one point which needs to be taken into consideration is that religion is not immune from criticism. Religion is a man made concept which was developed over the years. Considering that the foundation has been laid thousands of years ago, it does contain some practices and beliefs which are not in consonance with the 21st Century. The section expressly mentions malice and not criticism and thus every person has the right to criticize a religious practice or a belief. It is because the main purpose of religion is to ensure betterment unlike malice which is done with the purpose to offend or hurt. Surprisingly even Mohd. Ali Jinnah, who was considered to be a very orthodox Muslim, endorsed this view. The society has to develop a reformist attitude towards religion or else as stagnation would definitely kill our development as a nation. The same has reiterated by the Calcutta High Court in the 2007 verdict of Sujato Bhadra Vs. State of West Bengal. Quoting the Hon’ble court “Therefore, insult or attempt to insult the religion or religious belief when made with an intention, which must be deliberate or malicious, of outraging the religious feelings of a class of citizens of India, then only the provisions of Section 295A would be attracted. The outrage to religious feelings or insult to religion or religious belief if made unwittingly or carelessly or without any deliberate and malicious intention, then the same would not come within the purview of Section 295A IPC. The expression ‘deliberate and malicious” is indicative of the intention of the legislature. The conjunction ‘and’ conjoins both. It must be both deliberate and malicious i.e. deliberately malicious. If it is made knowingly, but with an intention not deliberate nor malicious, but with an intention oriented by clinching or revitalizing or striking a blow for the well-being of the society or for emancipation of the women, which is necessary for the mankind, in that event, such outraging of religious feelings or insult to religion or religious belief, though may be intentional but cannot be termed deliberate and malicious even if it is not made unwittingly or carelessly.”

The courts of our country consume a lot of time on the intent factor which reminds me of the very common but a true saying that ‘Justice delayed is Justice denied’. One way through which we can ensure a peaceful society is when criminals and wrongdoers are punished to the earliest. Even though the judgments of the High Courts have a persuasive jurisdiction, it can give other courts of our country, a parameter to determine and ascertain malice or malicious intent in cases which involve the said section.

A person who rightfully criticizes religion for the betterment of the society is put behind bars under the pretext of malice. Recent cases such that of Munawar Faruqui, a so called comedian, who was arrested by wrongly applying the said section, are a testimony to it. Religion has been evolving over the years to suit the lifestyle and the mindset of the people. Religion has to be updated as per the lives of the people in the 24th Century or else orthodoxy will downgrade the society. While maintaining peace, it is equally important to ensure that rights of a citizen are not tampered. As a society we need to be open to genuine criticism and at the same time punish the notorious with malicious intent.

Manav Asrani – Writer Bharat Bhagya Vidhata

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