The executive seems more fragile than hurt sentiment

Context: A Dalit academician, was recently 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.

Data indicates an increased use

The latest annual report of the National Crime Records Bureau (NCRB) records more than four jumps (458%) of cases registered under Section 153A since 2014; it almost doubled in the last two years.

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.

What is the legislative history of these provisions?

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.

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 Legislative Assembly debates at the introduction of Section 295A expressed concern about its subjectivity that could be misused.

– Rationale behind Sec 295A: 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.

Concerns expressed wrt Section 295A

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.

What are some safeguards to prevent misuse?

Statutory safeguards were incorporated 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.

What are the associated concerns?

No attempt was made to translate the statutory safeguards into practice.

Unlike bodily harm that can be verified, sentimental hurt is subjective and cannot be tested against strict measures.

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. A hazy legal paradigm criminalising hurting religious sentiment facilitates the ruling dispensation’s strategy to stifle all dissent and further divisive politics.

Way forward

A critical inquiry of orthodox practices and superstitious beliefs encourages social reforms.

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?

Source: This post is based on the article “The executive seems more fragile than hurt sentiment” published in The Hindu on 25th May 22.