Blasphemy: Definition and Unconstitutionality
This section will explore the meaning of hate speech as it is defined in India, then proceed to discuss blasphemy, which is a form of hate speech. Explanation on how it’s been differentiated from free speech, and why it’s unconstitutional will be given here.
The 267th Report of the Law Commission of India defined hate speech as an expression that is likely to cause distress, offend or incite violence against individuals based on the particular group they’re associated with. Blasphemy is defined as the act of insulting or showing contempt or lack of reverence for God. It can be argued that blasphemy is free speech and is constitutional. But the freedom of speech and expression does not confer an absolute right to speak or publish anything one wants without responsibility, or an unrestricted license that gives immunity to those who abuse this freedom. The State must ensure that free discourse in a democracy isn’t used as an instrument to promote disharmony among different groups of society. Thus, Article 19 of the Constitution of India, which guarantees freedom of speech and expression to all citizens of India has been subjected to certain restrictions including public order and morality. Although the phrase “blasphemy” isn’t explicitly mentioned anywhere in the Constitution, our founding fathers have made it clear that any speech that threatens public harmony or incites violence against a particular group in society will be punished.
Blasphemy Laws in India
While there are several laws in India relating to hate speech, this section will focus on the history of one law that deals with blasphemy in particular, Section 295A.
The need for a proper law that deals with “blasphemy” was felt in the 1920’s when Hindu-Muslim tensions were extremely prevalent and they manifested through heated debates, riots, and slanderous publications by Hindus and Muslims. One such publication was Rangila Rasul. A Hindu bookstore owner, Mahashay Rajpal published it in 1924. It portrayed the Prophet Muhammad in a bad light. Rajpal was charged under Section 153A of I.P.C. While the judge acknowledged that the publication was deeply offensive and written with undeniably malicious intent, the case was beyond the scope of Section 153A, which did not mention intent as a requirement. Rajpal was acquitted. Meanwhile, two other inflammatory books were published namely Vichitra Jivan by Pandit Kali Charan Sharma and Risala-i-Vartman by Devi S. Sharma. Both of these publications seemingly violated Section 153A of I.P.C. But the ambiguity surrounding this section that had been revealed in the Rangila Rasul case was still present. There was mounting pressure against the government to amend this law or to make a new one.
Finally, in 1927, Section 295A of the Indian Penal Code, India’s “blasphemy law” was enacted. It stated that deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs shall be punished. This law addressed the “fatal flaw” that Section 153A had been acknowledged to have: the essential requirement of deliberate and malicious intention. This is the provision that sets apart India’s so-called “blasphemy law” from the actual blasphemy laws of some other countries, where they’ve led to systemic and ongoing violations of religious freedom for decades. Indian lawmakers tried to avoid such instances of misuse of their blasphemy law. But despite their efforts, this law, instead of punishing the publishers of scurrilous writings, has led to the repression of progressive ideas and meaningful reforms in the country in many cases.
The Wendy Doniger Controversy
In this section, one such case of academic repression by Section 295A is discussed.
In 2010, when Penguin India published Wendy Doniger’s new book The Hindus: An Alternative History. Dinanath Batra, a member of the Rastriya Swayamsevak Sangh (RSS), filed a lawsuit against Wendy under Section 295A, alleging that her text was “riddled with heresy” and is offensive to the Hindus. This case ended with Penguin India agreeing to stop the publication of the book. Many writers and free speech advocates criticized Penguin for its failure to support free speech, but Penguin blamed Section 295A of the Indian Penal Code, saying that it will make it difficult for any Indian publisher to comply with the International standards of free speech. Wendy Doniger herself expressed grave concern that Section 295A could end all innovative and scholarly thought. In the hands of someone with as conservative a mindset as Dinanath Batra, she stated, it could be “a weapon of mass cultural destruction”.
The Case of Shaheen Dhada
This section explores the case of Shaheed Dada, which is a prime example of a blasphemy law being used as a weapon by someone with political interests.
In 2012, Shaheen Dhada posted a Facebook comment criticizing the shutdown of services and transport in Maharashtra following the death of Bal Thackeray, the head of the Shiv Sena party. Rinu Shrinivasan, her friend, liked the post and soon after, Dhada began being bombarded with calls and comments asking her to take the post down. Later, her uncle’s clinic was ransacked by a Shiv Sena mob, who also demanded from the police their immediate arrest. FIRs were filed against them for violation of Section 295A of the penal code and they were arrested. Since the comment did not appear to be malicious or deliberate, it didn’t fall under the purview of Section 295A. The police amended the charge the next day to a breach of Section 505(2) of the Indian Penal Code, acknowledging the inappropriateness of the initial charge but obviously still wanting to charge the young women with something, requesting only that the comment at issue be likely to perpetuate or establish ill-will or enmity between two classes of people or religious groups.
The cases mentioned above clearly exemplify how blasphemy laws can be used by political groups, angry mobs, and powerful people for their own advantage. These laws enable persecutions on the basis of subjective responses and are often used by those in the majority to silence whoever disagrees with them. Although the government does not always have to deal with such rash complaints, it does so far too often and far too willingly. Intolerance and attempts to censor dissenting views are likely to result from this stifling of discussion over religious matters. State and religious leaders should actively foster tolerance and promote free exchange of ideas rather than prosecute merely “offensive” speech in the name of protecting religious interests. And though the surge in violence following hate speeches can be attributed to the speakers for the most part, it is equally important for voters as well as the media to be mindful of intentional attempts to sway sentiments. That is the only way a secular and democratic country like India can thrive.
 Law Commission of India, Hate Speech (Report No. 267, 2017)
 Indiankanoon.org. Section 295A In the Indian Penal Code. Available at: <https://indiankanoon.org/doc/1803184/>
 Erica McLachlan, ‘The Story of Section 295-A: A Law and Literature Approach’ (2017) <https://prism.ucalgary.ca/bitstream/handle/11023/3967/ucalgary_2017_mclachlan_erica.pdf;jsessionid=CA42E2147A26150E405CB8EAEE087A3C?sequence=1>
 Anita Joshua, ‘No Country for Free Speech, Says Penguin’ The Hindu (New Delhi, 14 February 2014)
Wendy Doniger, ‘India: Censorship by The Batra Brigade’ (The New York Review of Books, 8 May 2014) <https://www.nybooks.com/articles/2014/05/08/india-censorship-batra-brigade/>.
 Jayshree Bajoria, Linda Lakhdhir, ‘Stifling Dissent’ (2016)<https://www.hrw.org/report/2016/05/24/stifling-dissent/criminalization-peaceful-expression-india>