Topic: A Critical Analysis of Blasphemy Laws:

India and The World

ABSTRACT

Blasphemy is defined as disrespecting or ridiculing God and divine or sacred items, as well
as offending other people’s religious feelings by engaging in such behaviour. There is no
 common understanding of what blasphemy is, despite the fact that numerous nations have
made it a crime. The interpretation of the court primarily determines whether or not a
certain act is considered to be within the "infamous" border of blasphemy.

The researcher through this paper will examine several instances in which blasphemy laws
have been applied, how their application has changed in Indian society, and the
background of the establishment of such laws. Blasphemy laws are said to have terrible
effects on individual freedom, contradict the tenets of the Indian constitution, and
exacerbate the country's religious divisions. The post concentrates on proving the urgent
necessity to remove or to amend blasphemy laws as a result.1

The researcher will also give a comparative analysis of Indian Blasphemy laws with respect
to other countries. There are many countries whose legal system have penal provisions of
blasphemy. Islamic countries like Iraq, Christina countries like Greece, Iceland and Egypt,
and even secular countries like Canada or Germany has penal provision on Blasphemy.
Blasphemy has been declared as a crime and has a range of punishments, from a small
fine in Italy to death penalty in Pakistan. 2 It may be related to a specific religion, as it is in
Qatar, or it may be against all religions, as it is in Denmark. However, blasphemy is not a
crime in many nations’ penal codes. The United States of America declared the Blasphemy
Law to be in violation of the Constitution as it is violative of freedom of speech and
expression.

Keywords: Blasphemy, Freedom of speech and Expression, vague law, crime, Indian
Constitution.

Introduction

India being a pluralist country & secular just like America, had no provision against
blasphemy until the year 1927 when the Section 295(A) was incorporated in the Indian Penal
Code, 1860.
Before India gained its independence, Mahashay Rajpal wrote a pamphlet under the name of

1
Index at Hein Online, Manupatra and J-gate. Jus Corpus. (2022, July 242, from https://www.juscorpus.com

2
Respecting rights? - USCIRF. (n.d.). Retrieved August 7, 2022, from
https://www.uscirf.gov/sites/default/files/Blasphemy%20Laws%20Report.pdf
RangilaRasul amid racial unrest. When the pamphlet was first published in 1926, it caused
controversy. Muslims community demanded Rajpal’s punishment since it was a brutal assault
 on their religious sensibilities. Rajpal was ultimately exonerated due to the absence of
blasphemy laws in India, only to be hanged in 1929. Eventually, at a moment of need, the
British colonial government amended the Indian Penal Code, 1860 and introduced Section
295(A) in 192719. The Section still exists in Pakistan, Bangladesh, and the Indian Penal Code
of 1860, long after India was divided.3

Section 295- 298AA of IPC, 1860 deals with the laws related to Blasphemy in India. The
main element in all these laws is the ‘mens rea’ of the Individual.

Research Problem and Research Question

Blasphemy laws limit fundamental human rights by restricting freedom of speech and
expression while safeguarding the majority faith while punishing minority religions for
expressing and propagating their religious ideas. Human rights are meant to protect people as
individuals, not as concepts or systems of thought. 4 Individual’s religious sentiments cannot
be used as justification for limiting our fundamental rights. Legislation against blasphemy
may protect some people’s views, but it will definitely restrict those of others.

This section of the penal code has undergone several state revisions in the state of Punjab in
northern India. The sentence of life in jail for the offence of blasphemy in Punjab was added
to the code as Section 295AA. This was questioned since not all religious items were included
in the section but rather simply a few. It was added in 2018 because religious tensions in
Punjab were constantly rising at the time.5

The researcher through this research wants to put forth the following questions:

i) Is there a need for an amendment in the IPC, 1860, related to Blasphemy laws?
ii) Will a Country like India, have diverse religion, be able to work peacefully without this
religion?

3
The law of blasphemy: India and the world - ijlljs.in. (n.d.). Retrieved August 1, 2022, from http://ijlljs.in/wp
content/uploads/2016/11/Blasphemy_laws__India_and_the_World_by_Apurv_Shaurya__Student_of_3rd_Year__
B.A_LL.B__School_of_Law__Bhubaneswar__Odisha__India.pdf

4
Marie Juul Peterson, ‘Blasphemy laws and human rights: a match made in hell’ (Open Global Rights, 13 January
2021) https://www.openglobalrights.org/blasphemy -laws-and-human-rights-a-match-made-in-hell/

5
D. R. S., By, -, Sehgal, D. R., & here, P. enter your name. (2020, November 22). Blasphemy laws in India and the
Contemporary World. iPleaders. Retrieved August 1, 2022, from https://blog.ipleaders.in/blasphemy-laws-
indiacontemporary-world
iii) If the answer of the second question comes out to be in negative then what could be the
possible solutions?

Research Methodology

Many authors and protesters of the Blasphemy laws have tried to raise their voice against this
draconian legislation by using their words in various forms like research papers, news articles,
etc. As mentioned in the previous section of the paper, Punjab through its constant protest
made the government to amend blasphemy laws and brought in capital punishment for this
offence in the territory of Punjab. Researcher, in order to provide the readers a detailed
understanding will be analysing various articles, blogs and research papers on Blasphemy
laws. This research follows a qualitative method of research by providing a comprehensive
analysis of various existing material related to Blasphemy. The researcher will also give a
detailed analysis of various case laws and their impact on the society. The researcher will also
analyse international laws and convention related to the topic, in order to give the readers a
comparative analysis the issue in India and in the world.

Literature Review

The civil and penal codes, as well as all pertinent constitutional provisions, were evaluated for
the countries mentioned here. The researcher will use a mix of primary and secondary sources
because the bulk of the nations featured in the compendium are non-English speaking nations.
On the websites of several governments or through UNHCR's RefWorld, the researcher was
able to locate official translations of the country's constitution and legislation.

Primary Sources:

The Primary sources included collections produced by respectable institutions including the
World Intellectual Property Organization, International Relations and Security Network:
Primary Resources in International Affairs, and the International Constitutional Law Project
(WIPO), General comment 34 of the Human Rights Committee on the International Covenant
on Civil and Political Rights, The European Court of Human Rights, European Guidelines on
Freedom of Religion or Belief, UDHR, Penal codes of some countries. 6

Secondary Sources:

The secondary sources, such as translations by independent researchers, published academics,

and reports by the United States Commission for International Religious Freedom (USCIRF),
6
The international human rights consensus against “blasphemy” laws, https://end-
blasphemy-laws.org/about/theinternational-human-rights-consensus-against-blasphemy-laws/
Freedom House, Human Rights Watch (HRW), and Amnesty International (AI), among other
human rights organisations, when an official translation could not be found, particularly for
civil or penal codes. The researcher will also analyse all the theories related to Blasphemy and
freedom of speech and expression.

Scopes and Limitation

Scope:

This study analyses and analyses blasphemy laws from various countries throughout the world
using the principles of international and human rights law. The laws considered in this study
forbid or make it illegal to express ideas that are judged "blasphemous," opposed to popular
opinion or a particular religion, and many of them carry severe, frequently criminal
consequences. Many states across the world vigorously enforce their blasphemy laws. In order
to promote religious unity, many governments explain the prohibition and prosecution of
blasphemy as being necessary.

Limitation:

The researcher will only use the data related to international laws for comparative purpose.
This study will only give a detailed analysis of laws and cases related to Blasphemy in India.
HISTORY OF BLASPHEMY LAWS IN INDIA

In the year 325 AD, the idea of blasphemy set sail from Greece. As the idea of monotheism
emerged, it evolved as a mistake. Jews gave the idea of blasphemy a fairly formal structure in
the 12th or 13th centuries. The 13th century saw the establishment of blasphemy law in
Europe, and John Taylor's case in 1675 served as a turning point in how the term was
understood by a state. Blasphemy, according to Justice, is “treason against the state and the
law itself.” Modern definitions of blasphemy include "the act or offence of speaking
sacrilegiously about God or sacred objects.”

In spite of having a predominantly Hindu population, India did not have blasphemy laws until
1927 because “Hinduism faces no fetters on intellect: Man may think as far as he can; there is
no blasphemy in enquiry.7” Nothing is too precious to be put to the test or called into doubt.
Before India gained its independence, Mahashay Rajpal wrote a pamphlet under the name of
Rangila Rasul amid racial unrest. When the pamphlet was first published in 1926, it caused
controversy. Muslims in the neighbourhood demanded Rajpal's punishment since it was a
brutal assault on their religious sensibilities. Rajpal was ultimately exonerated due to the
absence of blasphemy laws in India, only to be killed in 1929.

Eventually, at a moment of need, the British colonial government revised the Indian Penal
Code, 1860 and introduced Section 295(A) in 192719. The Section still exists in Pakistan,
Bangladesh, and the Indian Penal Code of 1860, long after India was divided.

INDIAN CONSTITUTION AND BLASPHEMY LAWS

By virtue of its constitution, India is a secular nation. A secular state does not favour either
religion or atheism. Although, as was previously discussed, the practise and promotion of
irreligion may amount to blasphemy for a small number of religions, the installation of a
punitive provision that serves as an anti-blasphemy statute constitutes bias towards the
irreligious.

Freedom of Speech and expression is a fundamental right in the constitution of various

countries including India and is also a Human Right. Many international documents have
given the Freedom of Speech and Expression a right which cannot be limited due to elements
of Blasphemy. The International Covenant on Civil and Political Rights in its Article 19 states
that
“Everyone shall have the right to freedom of expression; this right shall include freedom to

7
John R. de Lingen, An introduction to the Hindu faith, (Sterling publishers‟ pvt. Ltd. 2008), pg. 2
seek, receive and impart 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 and
the right to hold opinion without interference”. Prohibitions of displays of lack of respect for a
religion or other belief system, including blasphemy laws, are incompatible with the
Covenant8. There are only two situations in which it is restricted, when it’s a war propaganda
or national, racial or religious hatred which has the element of discrimination, hostility or
violence.

In the case of S. Rangarajan9, the court ruled that the claimed speech should be "intrinsically
hazardous to the public interest" and be like a "Spark in the Powder Keg." The extent of free
expression is expanded in light of the state case laws mentioned above. The concept of a
"imminent lawless conduct" makes it extremely challenging in the case of blasphemous acts,
nonetheless, from a practical standpoint. Which speech that contains blasphemous elements
will incite violence is incredibly unpredictable. One cannot presume or foresee how the
community will respond to blasphemous words.

Moreover, our Constitution has recognised the atheists’ and nonbelievers’ constitutional right
to freedom of conscience. According to the Court's ruling in St. Xavier's College v. State of
Gujarat, "secularism is neither pro- nor anti-God; it respects the religiously observant, the
agnostic, and the atheist equally." Atheists have the freedom of conscience as well as the right
to spread their beliefs

The expansive extent of Section 295A's interpretation in the present socio-political

environment, however, directly undermines this constitutional protection. After a private
atheist gathering was attacked in Mathura in 2016, the city's police chief voiced worry that the
gathering might have encouraged intercommunal strife.

NEED FOR BLASPHEMY LAWS

Blasphemy laws are generally implemented by nations as a justifiable restriction for the
preservation of intergroup harmony. Not to mention the fact that the Indian Penal Code, 1860,
Section 295(A), was added to stop a string of communal violence sparked by the use of
blasphemous words. It is also claimed that the leaflet Rangila Rasul was prepared in response
to another pamphlet that criticised Hindu sentiments24. Thus, the purpose of establishing
295(A) was for the British government to put reasonable restrictions on the right to free
expression in order to maintain social order.

8
General Comment No.34, Article 19: Freedom of Opinion and Expression, (Human Rights Committee, 102nd
Session 2011) para. 48
9
S. Rangarajan ETC Vs. P. Jagajivan Ram, 1989 SCR(2) 204

According to German criminal law, anybody who disparages another person's faith or
ideology in public or by the publication of written materials in a way that could cause a
disturbance of the peace is subject to a fine or a sentence of up to three years in jail.

According to South Sudan's penal code, it is a crime to disrespect any religion in a way that
could cause a disturbance. Public criticism of a religion is illegal in Turkey and is subject to a
year in prison if it is likely to disturb the peace of the community or a six-month sentence
otherwise.

Therefore, the goal is to preserve the social order that blasphemous utterances can surely
undermine if society is sensitive to its members' religious convictions. Blasphemy is illegal
for a variety of reasons, many of which are connected, hard to separate, and even bolster one
another. For instance, a state that recognises a certain religion as its official religion is likely
to uphold religion's sacredness.

When a state acknowledges that religion operates as a moral code of conduct that motivates a
person and affects his or her way of thinking, it becomes abundantly clear that any verbal
attack that denigrates this moral code will cause dissatisfaction that may or may not be violent
in nature10.

WHY A DEMOCRACY LIKE INDIA DOES NOT NEED BLASPHEMY LAWS?

According to Section 295A of the Code, anyone who insults or attempts to degrade religion,
or the religious beliefs of a group, with the intentional and malicious goal of upsetting
religious sensibilities, shall be punished. This section was created to make malicious acts that
offend the religious sensibilities of any group of citizens—religious insult or outrage—
 punishable as offences against religion, whether or not they constitute attempts to incite hatred
or hostility between groups as defined by section 153A of the IPC.

Along with this there are various other sections also promoted Anti-Blasphemy Law in India,
like section 296-298 and Section 154 of IPC.

India does not need Blasphemy Laws because of the following reasons:

a) Ultra-vires the Constitution of India

10
The law of blasphemy: India and the world - ijlljs.in. (n.d.). Retrieved October 17, 2022, from
http://ijlljs.in/wpcontent/uploads/2016/11/Blasphemy_laws_
India_and_the_World_by_Apurv_Shaurya__Student_of_3rd_Year__B.A_LL.B__School_of_Law__Bhubaneswar
__Odisha__India.pdf
Inciting hatred or violence is never prohibited by laws against "blasphemy" and religious insult.
When it comes to posing inquiries, delivering criticism, and expressing satire or ridicule in
respect to religion, "blasphemy" and religious insult laws invariably in practise forbid,
complicate, or restrict free expression.

These discourse techniques (questioning, criticising, satirising, and ridiculing) have a strong
place in the free speech category. Therefore, regulations that penalise such expression under the
guise of "blasphemy" and "insult to religion" violate international human rights norms and
violate freedom of expression.

Thought and belief freedom, especially religious freedom, must be upheld, it is also crucial to
ensure a setting that allows for a critical examination of religion. There is no fundamental right
to not have one's religious sentiments hurt. There are no inherent rights in religions. Similar like
every other group in society, churches and other religious institutions should be willing to hear
criticism. The free interchange of ideas is essential to the advancement of culture and
knowledge. Any ideas that are shielded from criticism don't benefit from it because it allows
them to endure unchanged rather than being modified and developed.

b) Victimisation of the Minorities

The criminalization of "insult" to religion in the penal code gives social persecution of people
and groups who are thought to "offend" traditional religious sensibilities—sometimes through
their speech or writing, frequently just by existing—or based on rumours that are circulated
with the intention of inciting violence—legitimacy.
 This poses a difficulty because, when a FIR is filed or a complaint is assessed by a police
officer to be just "reasonable," it is possible for the police to arrest the accused without a
warrant that has been approved by a judge. This raises the possibility of legal abuse at the
whim of the executive branch. The likelihood of the accused being harassed for a long time is
increased by the fact that the crime is not one for which bail is available.

c) Promotes Violence

Blasphemy accusations have been used by vigilante groups and non-state actors to explain and
incite acts of interreligious violence on several occasions, which leads to violence and
extremism.

Massive demonstrations against the Constitutional Court's reconsideration of Indonesia's

blasphemy laws resulted in threats against the petitioners. The petitioners claimed that rather
than preventing sectarian tensions and religious conflict, the statute had actively contributed to
their development. Different violent groups have used this as their overarching strategy to
attack, burn, and destroy others.

BLASPHEMY LAWS IN OTHER COUNTRIES

Pakistan

Blasphemy carries a death sentence in Pakistan. The people that are prosecuted are often
members of minorities, but it appears that more Muslims are being included as well. When
blasphemy is at stake, individuals who have been accused of it as well as police, attorneys, and
judges have experienced harassment, threats, attacks, and deaths.

Qatar

In Qatar, blasphemy is punishable by a maximum 7-year prison term. In Qatar, online criticism
of religion is prohibited.

The United Arab Emirates

The United Arab Emirates deters blasphemy by limiting what is written and distributed,
punishing Muslims according to Sharia, and punishing non-Muslims according to judge-made
laws.
United Kingdom

In the United Kingdom, prohibitions against blasphemy against Christianity were particular. The
common law charges of blasphemy and blasphemous libel should be eliminated completely, the
Law Commission (England and Wales) said in its report Criminal Law: Offences against
Religious and Public Worship released in 1985. Blasphemy and blasphemous libel were declared
illegal under English and Welsh common law on March 5, 2008, thanks to an amendment to the
Criminal Justice and Immigration Act 2008.

USA

Since there are no federal blasphemy laws, any prosecution for the crime would be against the
Constitution of the United States11.

11
Y. T., By, -, Tandon, Y., & here, P. enter your name. (2017, December 18). Blasphemy laws in India. iPleaders.
Retrieved October 15, 2022, from https://blog.ipleaders.in/blasphemy-india/

CONCLUSION

Section 295 A’s application needs to be more clearly defined; otherwise, hypersensitive groups
will keep using it as a weapon of intimidation. In order to ensure that a case is not exploited to
target legitimate speech, judicial mind must first be applied at the time of case registration.
Second, the clause should only be invoked in circumstances of severe insults, with the proximity
test between speech and disorder in public, as set forth in several judicial rulings, serving as the
guiding principle.

The sentiment that the clause aims to protect must be safeguarded, but not at the expense of free
speech, thought, and expression. Moving away from the goal of preventing public disruption and
concentrating solely on the anti-religious content of speech would result in the application of
blasphemy laws in a country with a secular constitution. In the current situation, any significant
interaction with religion, which forms the core of Indian society, would bring about negative
consequences, weakening the spirit of reform in a community that is in desperate need of it1.

1 Section 295 A: The indian blasphemy law in making. NewsClick. (n.d.). Retrieved October 16, 2022, from
https://www.newsclick.in/section-295-indian-blasphemy-law-making