FREEDOM OF SPEECH & EXPRESSION IN

CYBERSPACE WITH REFERENCE TO SEDITION AND

BLASPHEMY UNDER IPC

Law & Information technology Assignment

Submitted by
Name: Sandeep Chawda
Student ID: 20162315
B.A.LL.B (9TH SEM)(REGULAR)
Faculty of Law,Jamia Millia Islamia

Submitted to Dr. Ghulam Yazdani , Associate Professor (Faculty of Law ,Jamia Millia
Islamia, New Delhi)
(4th November 2020)

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ACKNOWLEDGEMENT

In preparation of my assignment, I had to take the help and guidance of some respected persons,

who deserve my deepest gratitude. As the completion of this assignment gave me much pleasure,

I would like to show my gratitude to Dr. Ghulam Yazdani, for giving me guidelines for

assignment throughout numerous consultations. I would also like to expand my gratitude to all

those who have directly and indirectly guided me in writing this assignment.

Many people, especially my classmates have made valuable comment suggestions on my work

which gave me an inspiration to improve the quality of the assignment.

Contents
INTRODUCTION...........................................................................................................................................5

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Freedom of Speech And Expression:...........................................................................................................6
Freedom of Speech And Expression And Social Media/ Internet................................................................7
Restrictions on Freedom of Speech And Expression....................................................................................8
Test of Reasonableness and Cyberspace...................................................................................................11
Cyber Laws of India And Social Media.......................................................................................................12
SPECIAL REFERENCE TO SEDITION AND BLASPHEMY................................................................................15
The use of sedition laws in India to regulate speech on social media.......................................................16
Blasphemy freedom of speech and expression and cyberspace...............................................................18
Conclusion.................................................................................................................................................21
BIBLIOGRAPHY...........................................................................................................................................22

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ABSTRACT
The Internet and Social Media has become a vital communications tool through which
individuals can exercise their right of freedom of expression and exchange information and
ideas. In the past year or so, a growing movement of people around the world has been witnessed
who are advocating for change, justice, equality, accountability of the powerful and respect for
human rights. In such movements, the Internet and Social Media has often played a key role by
enabling people to connect and exchange information instantly and by creating a sense of
solidarity. The UN Human Rights Committee has also tried to give practical application to
freedom of opinion and expression in the radically altered media landscape, the centre stage of
which is occupied by the internet and mobile communication. Describing new media as a global
network to exchange ideas and opinions that does not necessarily rely on the traditional mass
media, the Committee stated that the States should take all necessary steps to foster the
independence of these new media and also ensure access to them. Moreover, Article 19 of the
UDHR and Article 19(2) of the ICCPR also provides for freedom of speech and expression even
in case of internet and social media. Thus, it is seen that freedom of speech and expression is
recognized as a fundamental right in whatever medium it is exercised under the Constitution of
India and other international documents. And in the light of the growing use of internet and
social media as a medium of exercising this right, access to this medium has also been
recognized as a fundamental human right.

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INTRODUCTION
Freedom of Expression is one of the most universally recognized and prominent rights in all
democratic legal systems. The right to impart and receive information has long been a
cornerstone of human rights law, and of democratic theory. On 26th August 1789, , the architects
of the French Revolution issued the Declaration of the Rights of Man, which secured the right of
citizens to communicate ideas and opinions freely, and which right has been retained virtually
unchanged throughout the history of democracy. Almost exactly a month later, the United States,
declared free speech to be fundamental to its nascent political structure by amending its recently
adopted Constitution to protect that right explicitly. Over a century and a half later, the United
Nations’ Universal Declaration of Human Rights (UDHR) recognized the right to free
speech104. Similarly International Covenant on Civil and Political Rights (ICCPR) and
European Convention on Human Rights have upheld the significance and importance of freedom
of expression. Although the protection of freedom of expression was not given prominence in
most western democracies fifty or even thirty years ago, recent developments indicate that most
democracies have started developing protective freedom of expression jurisprudence in the past
ten to twenty-five years.

India is one of such paradises on earth where you can speak your heart out without the fear of
someone gunning you down for that, or, it has been until now. Even if the situation of Indians is
a lot better than that of their fellow citizens of other nations, the picture is not really soothing or
mesmerizing for Indians anymore. This observation is being made with regard to the exercise of
the right of freedom of speech and expression in the context of social media and the hurdles The
discipline of law has constantly faced the challenge posed by special endeavors to the general
rules of law. While at times, developments of the special endeavors have led to the development
of specialized areas of law, it has also faced constant challenge from those who advocate that law
should be general in its character and creating specialized fields leads to what may be called
‘multidisciplinary dilettantism’

These days, the web is an intuitive media in which we called the internet or virtual media. This is
media, where everybody or anybody can be conveying everything that needs to be conveyed by
putting their own thoughts or different things. Where they will enlighten the audience members

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or perusers regarding their own thoughts or others, their own accounts or others, their very own
societies or others, and it is including the current of themselves for mediating and to persuade the
others to pursue their own ways or thoughts or even simply spreading a data.

placed on that by the arbitrary use of the so called cyber laws of the nation, particularly Section
66A of the Information Technology Act, 2000.

Before delving into the issue in details, it is but desirable to first understand the concepts of
social media and freedom of speech and expression.

Freedom of Speech And Expression:

Freedom of speech and expression is broadly understood as the notion that every person has the
natural right to freely express themselves through any media and frontier without outside
interference, such as censorship, and without fear of reprisal, such as threats and persecutions.

Freedom of expression is a complex right. This is because freedom of expression is not absolute
and carries with it special duties and responsibilities therefore it may be subject to certain
restrictions provided by law.

The term freedom of expression itself had existed since ancient times, dating back at least to the
Greek Athenian era more than 2400 years ago. The following are some of the most commonly
agreed upon definitions of freedom of expression that are considered as valid international
standards:

# Everyone has the right to freedom of opinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers.

# Everyone shall have the right to hold opinions without interference. Everyone shall have the
right to freedom of expression; this right shall include freedom to seek, receive and impart

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information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media of his choice. .

Similarly, Article 19 (1) (a) of the Constitution of India also confers on the citizens of India the
right to freedom of speech and expression. The freedom of speech and expression means the
right to express one convictions and opinions freely by word of mouth, writing, printing, pictures
or any other mode. It also includes the right to propagate or publish the views of other people

The term freedom of speech and expression includes any act of seeking, receiving and imparting
information or ideas, regardless of the medium used. Based on John Miltonâ arguments, freedom
of speech is understood as a multi- faceted right including not only the right to express or
disseminate information and ideas but also including the right to seek, receive and impart
information and ideas.

Freedom of Speech And Expression And Social Media/ Internet

The Internet and Social Media has become a vital communications tool through which
individuals can exercise their right of freedom of expression and exchange information and
ideas. In the past year or so, a growing movement of people around the world has been witnessed
who are advocating for change, justice, equality, accountability of the powerful and respect for
human rights. In such movements, the Internet and Social Media has often played a key role by
enabling people to connect and exchange information instantly and by creating a sense of
solidarity. The UN Human Rights Committee has also tried to give practical application to
freedom of opinion and expression in the radically altered media landscape, the centre stage of
which is occupied by the internet and mobile communication. Describing new media as a global
network to exchange ideas and opinions that does not necessarily rely on the traditional mass
media, the Committee stated that the States should take all necessary steps to foster the
independence of these new media and also ensure access to them. Moreover, Article 19 of the
UDHR and Article 19(2) of the ICCPR also provides for freedom of speech and expression even
in case of internet and social media. Thus, it is seen that freedom of speech and expression is
recognized as a fundamental right in whatever medium it is exercised under the Constitution of
India and other international documents. And in the light of the growing use of internet and

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social media as a medium of exercising this right, access to this medium has also been
recognized as a fundamental human right.

Restrictions on Freedom of Speech And Expression

The freedom of speech and expression does not confer on the citizens the right to speak or
publish without responsibility. It is not an unbraided license giving immunity for every possible
use of language and prevents punishment for those who abuse this freedom. Article 19(3) of the
ICCPR imposes restrictions on the following grounds:
(a) For respect of the rights of reputations of others
(b) For protection of national security, or public order, or public health or morals.
As per Article 19(2) of the Constitution of India, the legislature may enact laws to impose
restrictions on the right to speech and expression on the following grounds:
(a) Sovereignty and integrity of India
(b) Security of the State
(c) Friendly relations with foreign States
(d) Public order
(e) Decency or morality
(f) Contempt of court
(g) Defamation
(h) Incitement to an offence

The freedoms enumerated in Art.19 (1) of the Indian Constitution are those great and basic rights
which are recognized as the natural rights inherent in the status of a citizen. But none of these
freedoms including freedom of speech and expression is an absolute or uncontrolled, for each is
liable to be curtailed by laws made or to be made by the State to the extent mentioned in clauses
(2) to (6) of Art.19. Clauses (2) to (6) of the Art.19 recognize the right of the State to make laws
putting reasonable restrictions in the interest of general public, the sovereignty and integrity of
India, security of the state, public order, decency or morality or in relation to contempt of court ,
defamation or incitement to an offence. The principles on which the power of the State to impose
restriction is based is that all individual rights of a person are held subject to such reasonable

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limitations and regulations as may be necessary or expedient for the protection of the general
welfare. In the words of Das, J., “social interest in individual liberty may be well have to be
subordinated to other greater social interest. Indeed there has to be a balance between individual
rights guaranteed under Art.19(1) and the exigencies of the state which is the custodian of the
interests of the general public, public order, decency or morality and of the other public interests
which may compendiously be described as social welfare”. The restrictions that may be imposed
on the exercise of free speech right must be reasonable. It may be emphasized that the
requirement that a restriction should be reasonable is of great constitutional significance, for it
acts as a limitation on the power of the legislature, and consequently, widens the scope of
judicial review of laws restraining the exercise of freedoms guaranteed by Art.19. The
determination by the legislature of what constitutes a reasonable restriction is not final or
conclusive; it is subject to supervision of courts. Sovereignty and integrity of India is one of the
grounds on which free speech can be restricted. The object is to enable the Government to
combat cries for secession and the like. Security of State means ‘the absence of serious and
aggravated forms of public disorder, as distinguished from ordinary breaches of public safety or
public order which may not involve any danger to the State itself. Thus, security of the State is
endangered by crimes of violence intended to overthrow the government, levying of war and
rebellion against government, external aggression or war but not by minor breaches of public
order or tranquility, such as unlawful assembly, riot, promoting enmity between classes etc169.
But incitement of violent crimes like murder which is an offence against public order may also
undermines the security of the State. But the advocacy of revolutionary socialism as a panacea
for present day evils cannot be restricted under the ground of ‘security of state’ unless the use of
violence is suggested. The object of restricting freedom of speech and expression on the ground
of ‘friendly relations with foreign States’ is to prevent libels against foreign State in the interests
of maintaining friendly relations with them.

Another ground on which State can restrict free speech is Public Order. The concept of public
order is different from the concept of ‘law and order’ and of security of the State’. They refer to
three concentric circles. Law and order represents the largest circle, within which is the next
circle representing public order and the smallest circle represents security of the State. Hence an

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activity which affects law and order may necessarily affect public order and an activity which
may be prejudicial to public order may not necessarily affect security of the State. In the interest
of public order, the State may impose restrictions on the incitement

(i) to withhold services by public employees or persons engaged in any employment

which is essential for securing the public safety or for maintaining services essential
for the life of the community
(ii) for committing breach of discipline amongst employees
(iii) of feelings of enmity or hatred between different sections of the community

(iv) of the use of loudspeakers likely to cause a public nuisance or to affect the health of
the inmates of residential premises, hospitals and the like

(iv) for insulting the religious feelings of any class of citizens with deliberate and
malicious intention under Sec.295A of Indian Penal Code (IPC) and Sec.99 of
Criminal Procedure Code (Cr.PC) On the other hand criticism of government
policies, criticism of or defamatory slogan against a Minister, scurrilous attacks upon
a judge, exhibition of which , though it depicted scenes of violence, was capable of
creating a message of peace and co-existence have been held by the courts cannot be
restricted or penalized in the interests of public order.

The ground of decency or morality has been engrafted for the purpose of restricting speeches
and publications which tend to undermine public morals. Decency or morality is not confined
to sexual morality alone. Decency indicates that the action must be in conformity with the
current standards of behaviour or propriety. The question whether an utterance is likely to
undermine decency or morality is to be determined with reference to the probable effects it
may have upon the audience to which it is addressed. The age, culture and the like of the
audience thus becomes a material question. But the use of mere abusive language, which has
no suggestion of obscenity to the persons in whose presence they are uttered, would not come
under this ground and so would the use of expletives in a nude scene of rape to advance the
message intended by the film by arousing a sense of revulsion against the perpetrators and
pity for the victim.

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Article 19 of the Indian Constitution

Article 19(2) of the Indian constitution enables the government to impose certain restrictions on
free speech for issues –

 Security of the State,

 friendly relations with foreign States,

 public order,

 decency and morality,

 contempt of court,

 defamation,

 incitement to an offence, and

 sovereignty and integrity of India.

Reasonable restrictions on these grounds can be imposed only by a duly established law and not
by executive action.

In 2013, the Supreme Court of India was faced with certain special challenges to the fundamental
right to freedom of speech and expression posed by cyberspace in the case of Shreya Singhal v.
Union of India One of the preliminary arguments that was made by the respondents in Shreya
Singhal is that the restrictions on freedom of speech on Internet are not bound by Article 19(2),
as it is a separate medium altogether. The Supreme Court did not adopt this argument. In order to
reject this proposition, the court relied on Secretary, Ministry of Information & Broadcasting v.
Cricket Association of Bengal   and held that right to acquire and disseminate information forms
part of freedom of speech and expression.

Test of Reasonableness and Cyberspace

Article 19 requires the determination of reasonableness. In the case of V.G. Row v. State of
Madras laid down that the following factors will be relevant in determining “reasonableness”-

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“The nature of the right purport to have been infringed, the objective of the restriction imposed,
the extent and urgency of the evil sought to be remedied thereby, the imbalance of the burden,
the common conditions at the time, should all go into the legal decision.”

The test laid down in V.G. Row was also upheld in Papnasam Labour Union and in many
subsequent cases. The basic idea which was considered was that greater restrictions can be
imposed on cyberspace speech as opposed to other media. The virtues of cyberspace may
become its enemies. Procedural safeguards are if not more, at least, as relevant as substantive
standards with respect to free speech. By allowing lower procedural safeguards with respect to
blocking of websites, the court has set a lower threshold for cyberspace speech, thus carving a
niche for cyberspace in the broader free speech jurisprudence.

Cyber Laws of India And Social Media

Although there is no specific legislation in India which deals with social media, there are several
provisions in the existing so-called cyber laws which can be used to seek redress in case of
violation of any rights in the cyber space, internet and social media. The legislations and the
relevant provisions are specifically enumerated as under:

The Information Technology Act, 2000

(a) Under Chapter XI of the Act, Sections 65, 66, 66A, 6C, 66D, 66E, 66F, 67, 67A and 67B
contain punishments for computer related offences which can also be committed through
social media viz. tampering with computer source code, committing computer related
offences given under Section 43, sending offensive messages through communication
services, identity theft, cheating by personation using computer resource, violation of
privacy, cyber terrorism, publishing or transmitting obscene material in electronic form,
material containing sexually explicit act in electronic form, material depicting children in
sexually explicit act in electronic form, respectively.

(b) Section 69 of the Act grants power to the Central or a State Government to issue
directions for interception or monitoring or decryption of any information through any

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computer resource in the interest of the sovereignty or integrity of India, defence of India,
security of the State, friendly relations with foreign States, public order, for preventing
incitement to commission of any cognizable offence, for investigation of any offence.

(c) Section 69A grants power to the Central Government to issue directions to block
public access of nay information through any computer resource on similar grounds.

(d) Section 69B grants power to the Central Government to issue directions to authorize
any agency to monitor and collect traffic data or information through any computer
resource for cyber security.

(e) Section 79 provides for liability of intermediary. An intermediary shall not be liable
for any third party information, data or communication link made available or hosted by
him in the
Section 66A of the Information Technology Act, 2000.

Of all these provisions, Section 66A has been in news in recent times, albeit for all the
wrong reasons. Before discussing the issue in detail, it is desirable to first have a look at
Section 66A, the provision itself. Section 66A of the Information Technology Act, 2000
inserted vide Information Technology (Amendment) Act, 2008 provides punishment for
sending offensive messages through communication service, etc. and states:

Any person who sends, by means of a computer resource or a communication device-

(a) any information that is grossly offensive or has menacing character;

(b) any information which he knows to be false, but for the purpose of causing
annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred, or ill will, persistently by making use of such computer resource or a
communication device,

(c) any electronic mail or electronic mail message for the purpose of causing annoyance

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or inconvenience or to deceive or to mislead the addressee or recipient about the origin of
such messages shall be punishable with imprisonment for a term which may extend to
three years and with fine.

Explanation: For the purposes of this section, terms "electronic mail" and "electronic mail
message" means a message or information created or transmitted or received on a
computer, computer system, computer resource or communication device including
attachments in text, images, audio, video and any other electronic record, which may be
transmitted with the message.

To add to the fear that this provision could be hugely misused, several incidents in the
recent past bear testimony to the same.

such events is as follows:

#  Ambikesh Mahapatra, a professor of chemistry in Jadavpur University in West Bengal,
was arrested for posting a cartoon on West Bengal Chief Minister Mamata Banerjee on
social networking sites.

# two Air India employees were arrested by the Mumbai Police for putting up on
Facebook and Orkut content that was against a trade union leader and some politicians.
They were in custody for 12 days.

# Shaheen Dhada was arrested for questioning the shutdown of Mumbai following the
death of Shiv Sena supremo Bal Thackeray in her Facebook post, which was liked and
shared by her friend, Renu, who was also arrested by the Thane Police in Maharashtra.

In the face of widespread abuse of Section 66A, a writ petition has been filed in the form
of a public interest litigation in the Supreme Court challenging the sections
constitutionality wherein it has been submitted that the phraseology of impugned Section
is so wide and vague and incapable of being judged on objective standards, that it is
susceptible to wanton abuse and hence falls foul of Article 14, 19 (1) (a) and Article 21 of

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 the Constitution. Admitting the writ petition, Division Bench of Supreme Court,
comprising Chief Justice Altamas Kabir and Justice J. Chelameswar, noted that the
wording of Section 66A is not satisfactory. It is made very wide and can apply to all
kinds of comments.

SPECIAL REFERENCE TO SEDITION AND BLASPHEMY

SEDITION

Sedition is an offence that criminalizes speech that is construed to be disloyal to or threatening to

the state. The main legal provision in India is section 124A of the Indian Penal Code that
criminalizes speech that “brings or attempts to bring into hatred or contempt, or attempts or
attempts to excite disaffection” towards the government. The law makes a distinction between
“disapprobation” (lawful criticism of the government) and “disaffection” (expressing disloyalty
or enmity which is proscribed).

What constitutes sedition in the Indian context?

Sedition is traditionally understood as conduct or speech which incites people to rebel against the
government or monarch established in a state. Sedition laws first crept into the Indian legal
system in 1870 when the British colonial government added Section 124A to the IPC, with the
purpose of suppressing Indian nationalists and freedom fighters in India.

Section 124A states, “Whoever, by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, the Government established by law in India, shall be
punished [...]”. Explanation 1 to Section 124A states that ‘disaffection’ includes “disloyalty and
all feelings of enmity”. Explanation 2 clarifies that comments which disapprove government
measures/actions and administrative measures (without exciting or attempting to excite
hatred/contempt/disaffection towards the government) do not constitute sedition.

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The use of sedition laws in India to regulate speech on social media
Social media users have been routinely subjected to sedition laws in India. In October 2016, a
Facebook user was booked for sedition for posting derogatory remarks against the Haryana
government, the BJP and the RSS. In August 2016, the police arrested a Kashmiri engineer on
the grounds of sedition, for ‘liking’ and posting a series of Facebook posts which called for India
to withdraw from Kashmir. In December last year, the police charged a Malayali writer and
theatre artiste with sedition for allegedly insulting the National Anthem via excerpts from his
book that were posted on Facebook. In 2012, free speech activist Aseem Trivedi was arrested for
posting caricatures on Facebook which mocked Parliament. One of the charges pressed against
him was sedition.

In most of these cases, the Facebook posts in question do not classify as words which instigate
hatred/contempt/disaffection towards the Indian government. Take for instance, the most recent
case involving the Facebook post, ‘I support Pakistan’, along with a picture of the Pakistani flag.
The post does not refer to the Indian government at all (either directly or indirectly). In fact, such
arrests are often a knee-jerk reaction by the police to appease certain groups which take offence
at Facebook posts for being ostensibly ‘anti-India’. The objective behind Section 124A is to
punish speech which is serious enough to provoke citizens to act with
hatred/contempt/disaffection towards the government; therefore, it is wrong to use sedition laws
to punish comments which merely lampoon/criticise the government.

When the threat of using sedition laws looms large over internet users, it produces a negative
effect on online speech and directly impacts the fundamental right to freedom of speech and
expression under Article 19 (1) (a) of the Indian Constitution.

Indian courts on sedition

Courts in India have interpreted Section 124A narrowly in the past in order to prevent the misuse
of the said laws to wrongly silence individuals. In Kedar Nath v. State of Bihar (AIR 1962 SC
955), a five-judge bench of the SC held that Section 124A is applicable only in cases “where
there is violence or incitement to violence in the alleged act of sedition”. Regarding the Kedar

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Nath case, the constitution bench had also highlighted the fact that the gist of Section 124A is
“incitement to violence” or the “tendency or the intention to create public disorder”. In
September 2016 the NGO, Common Cause, filed a petition in the SC for directing the police to
produce a reasoned order before arresting/filing of FIR under section 124A. While the SC
declined the PIL, it affirmed the view adopted in the Kedar Nath case.

Common Cause’s PIL could have been inspired by the 2015 Bombay High Court order
in Sanskar Marathe v. State of Maharashtra  (the Aseem Trivedi case) wherein the Bombay
HC issued guidelines to the police that a reasoned legal opinion is required from a Public
Prosecutor before filing a FIR under Section 124A. In deciding the Sanskar Marathe case, the
Bombay HC relied on the Supreme Court' decision in the Kedar Nath case.

Sedition laws worldwide and attempts to amend and/or repeal Section 124A

Sedition laws have historically existed in the legislations of various countries including
Australia, the UK and the US. Countries worldwide have amended their sedition laws. For
instance, in 2006, Australia reviewed its sedition law under the Criminal Code Act 1995
(Criminal Code). Through the National Security Legislation Amendment Act 2010, the
Australian government abolished sedition as an offence and replaced with the offence of ‘urging
violence’, under section 80.2 of the Criminal Code. Interestingly, the UK abolished the offence
of sedition through section 73 of the Coroners and Justice Act in 2009.

Section 124A remains controversial in India and its relevance in the present era has been debated
both within and outside the precincts of the Parliament. Critics of section 124A argue that the
offence of sedition is a relic of the colonial past and needs to be repealed completely. Eminent
Indian lawyer Arvind Datar, however, cautions against the abolition of section 124A and argues
that despite the provision’s misuse, the sedition law is relevant when it comes to tackling rebel
groups such as the Maoists.

The Law Commission in its 42nd Report in 1971 reviewed section 124A and while the
Commission acknowledged the defects in the provision, it had recommended against the repeal
of section 124A. In 2016, the Indian government stated that the definition of sedition was being
reviewed by the Law Commission of India.

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While there is a need to re-examine the law on sedition in India, it is also important to clarify
how sedition law applies to social media users in the country. In the absence of a landmark
judgment on this point, the government needs to be proactive and issue guidelines to law
enforcement agencies regarding how the law of sedition applies to speech on social media. This
will ensure that the right to free speech of internet users is not curbed under the garb of a sedition
charge.

BLASPHEMY

The word blasphemy implies "irreverence to God, religion, a religious icon, or anything else that
is considered sacred." It has been considered a common-law felony [in the U.S.] due to its
tendency to provoke peace breaches. Some of the laws specifically render crime illegal.
Nevertheless, the reasoning for blasphemy being considered a felony is valid not only in
common law countries but globally.

Section 295A penalises insulting the religion or religious beliefs of any class of citizens, if such
insult is offered with the deliberate and malicious intention of outraging the religious feelings of
that class. Section 295A is a cognizable offence, which means that the police are authorised to
arrest accused persons without the need of a judicially sanctioned warrant. When this is coupled
with the long time taken for criminal cases to be heard and decided, it is the very existence of
Section 295A, and its potential for abuse, that casts a chilling effect upon the freedom of speech.

“[Section 295A] only punishes the aggravated form of insult to religion when it is perpetrated
with the deliberate and malicious intention of outraging the religious feelings of that class.
The calculated tendency of this aggravated form of insult is clearly to disrupt the public order
and the section, which penalises such activities, is well within the protection of clause (2) of
Art. 19 as being a law imposing reasonable restrictions on the exercise of the right to freedom of
speech and expression guaranteed by Art. 19(1)(a).”

Blasphemy freedom of speech and expression and cyberspace

Sec. 295A of IPC criminalizes acts with “deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India”. This provision curtails  individual’s right to
freedom of speech and expression protected under Article 19(1)(a) of the Indian Constitution. In

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such a situation, the Section can only be protected by Article 19(2), which allows for reasonable
restrictions to the freedom of speech and expression, in the interests of inter alia, ‘public order’
and ‘morality’.

The Supreme Court of India has justified the validity of Sec. 295A, claiming that this restriction
is necessary for the preservation of ‘public order’. A bare reading of the Section shows that the
only material consideration is the outrage caused to the “religious feelings of any class”. This has
allowed the SC to erroneously equate an offence to ‘religious feelings’, with a disruption to
‘public order’. Consequently, this has led the court to curtail individual expression which offends
religious sentiment, even when it does not disturb public order.

In Baragur Ramachandrappa v State of Karnataka , the SC criminalized individual expression for

its mere impingement “on the feelings of others”, thus giving an overly broad interpretation to
‘public order’. Further, in Ramji Lal Modi v State of UP,  the SC found a violation of Sec. 295A
even when no actual breach to public order was proved. Rather, a remote “tendency” of public
disorder was considered sufficient. The court based this reasoning on a rather pedantic
interpretation of the Constitution. It stated that the term “in the interest of…public order” used in
Art. 19(2), is wider than “for the maintenance of…public order”, thereby permitting restriction
on free speech and expression, even when a remote possibility of public disorder exists. 

In a liberal democratic society, the Constitution subjects individual liberties to abstract notions of
morality. To resolve this, the SC has clarified in landmark decisions including Navtej Singh
Johar v Union of India , that ‘morality’ refers not to common notions of ‘public-’ or
‘conventional-morality’, but rather, to ‘constitutional morality’. While conventional morality
refers to the beliefs and morals held by society at a particular point in time and is therefore
transient, constitutional morality is permanent, having a strong foundation in “human liberty,
equality, fraternity and dignity”. 

Regrettably, however, this progressive understanding of ‘morality’ finds no place in the

jurisprudence on blasphemy. While Sec. 295A has not been directly tested against this
restriction, several judgments allude to the court’s regressive disposition. In a clear protection of
‘conventional morality’, the SC in S. Rangarajan v P. Jagjivan Ram , justified the provision for
its “maintenance of values and standards of society”. 

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Furthermore, these problems are exacerbated by Sections 95 and 96 of the Criminal Procedure
Code (‘CrPC’). These provisions allow the widest discretion to government authorities to forfeit
and seize publications that “appear” to be in violation of Sec. 295A, before the matter is even
entertained by the court. In fact, the SC has gone to the extent of holding that the State need not
even specify the grounds of forfeiture in its notification. The overbroad interpretation accorded
to these provisions of the CrPC, coupled with the unreasonable expansion of the Art. 19(2)
restrictions outlined above, allows the government to use Sec. 295A for legitimizing mob justice.
This of course strengthens the case for the unconstitutionality of Sec. 295A. But from a more
normative point of view, the arbitrariness and obscurity of the law disables the public from
predicting what behavior is acceptable, and acting accordingly. Consequently, many individuals
may refrain from partaking in constructive and constitutionally protected engagement with
religion, for the fear that it may be caught under the ill-defined law.

Like the case of sedition the cases of blasphemy are increasing with the increasing number of
social media users. There is a ongoing case of blasphemy conflicting with the freedom of speech
and expression. French teacher in the class of “freedom of speech and expression” showed the
image of Prophet Muhammad (pubh) which lead to beheading of him by the infringe element.
The French President Emmanuel macron support the freedom of speech and expression and gave
the beheaded teachers highest civilian award of France. French President Emmanuel Macron
says that Islam is a “religion in crisis” which led to worldwide protest against him and the
France. Now people all over the world are showing their views on social media

The case of blasphemy become very difficult when the case emerged in foreign Nation and the
reaction of it is in the whole word because of the wide access of social media. In this case it
became difficult to find the culprit and to punish him. The blasphemy is in conflict with the
freedom of speech and expression but everyone should use his or her work with caution
especially if it is related to religion or god on social media because social media is accessed by
lot of people and it is possible that the views expressed by one on social media may led to
outrage of someone feelings. Everyone should have the freedom of speech and expression but
that does not mean to insert and dishonor someone god or religion.

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Conclusion
It is clearly evident that social media is a very powerful means of exercising ones freedom of
speech and expression. However, it is also been increasingly used for illegal acts which has
given force to the Governments attempts at censoring social media. Where on the one hand, the
misuse of social media entails the need for legal censorship, on the other hand, there are
legitimate fears of violation of civil rights of people as an inevitable consequence of censorship.

What is therefore desirable is regulation of social media, not its censorship. However, the present
cyber laws of India are neither appropriate nor adequate in this respect. An analysis of the
existing IT laws shows that there is unaccountable and immense power in the hands of the
Government while dealing with security in the cyber space. Even then, it is not sufficient to
check the misuse of social media. Hence, a specific legislation is desirable to regulate social
media.
Keeping all this in mind, it is suggested that the Government should form a Committee including
technical experts to look into all the possible facets of the use and misuse of social media and
recommend a suitable manner in which it can be regulated without hindering the civil rights of
citizens.

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BIBLIOGRAPHY

BOOKS REFFERED:

 M.P. JAIN, CONSTITUTION OF INDIA

 P.S.A PILLAI, INDIAN PENAL CODE

WEBSITES REFFERED

 WWW.SCCONLINE.COM
 WWW.SHODHGANGA.COM
 WWW.ADVOCATEKHOJ.COM

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