Section 295A of Indian Penal Code (IPC) falls under the “reasonable restrictions” of Article 19, that deals with the freedom of expression. It says that publishing content with “deliberate and malicious intentions” of hurting the religious feelings of a community is a punishable offence. This section has been in news in various cases, such as:
- Wendy Doniger’s The Hindus: An Alternative History, faced severe opposition from certain sections and charges were booked under Section 295A. Under these pressures the Penguin publishers withdrew the book from the market and it opined that the Section 295A has become a serious impediment to the freedom of press in India.
- A similar story of Perumal Murugan’s Madhorubhagan unwrapped in the state of Tamil Nadu which spoke about a controversial religious ceremony called “Niyoga”. The case booked under the same section is now pending in the Supreme Court.
- Shirin Dalvi, an editor in a Urdu daily Avadhnama based out of Mumbai had reproduced the infamous Charlie Hebdo’s cartoon on the Prophet (Peace be upon him).
What is common to such cases are the public protests, alleged harassment and calls of threats on the authors/editors by certain communities. It signifies the levels of intolerance in the society.
Freedom of expression/media can not be made absolute. At least not to the extent where it hurts the religious sentiments deliberately and poses more of a threat to the society than good (as envisioned in “reasonable restrictions” clause of Article 19). This is particularly not acceptable in India, which has had a long history with communalism that is easily provoked by such actions. Section 295A thus holds some amount of legitimacy to it.
On the other hand, freedom of expression is necessary for scholars to take up scientific analysis of various issues. For example, in case of history(or sociology) the scholars must be allowed to analyse historical(or sociological) aspects from various vantage points, sometimes against the conventional views. And in case of India, where one can find a closer correlation between history(or society) and religion such analysis would inadvertently result in venturing into the domain of religion or religious practices. Though the intent of the scholars here is not “deliberate and malicious”, they often find themselves to be booked under the Section 295A and facing the wrath of certain communities. Although the Indian Judiciary had always protected the authors in such instances, they would have to withstand the public humiliation and the face the trial process which could sometimes take several years. This is brewing an environment that is discouraging the scholars to take up such studies, which is an ultimate loss to our own country.
So what we need is a revisit at this colonial law to narrow down the purview of Section 295A so that it doesn’t threaten the freedom of expression/media. More clarity on what comes under “deliberate and malicious intentions” needs to be poured in by the Legislature.
The intolerance in the society to such different views is a subject for another discussion.