Tale of two sections: On vexatious criminal prosecution
It’s time 295A and 153A of the IPC are revisited, to end vexatious criminal prosecution
The Supreme Court has intervened to spare cricketer Mahendra Singh Dhoni the ordeal of facing a criminal trial for allegedly insulting the Hindu religion by being featured in the likeness of a deity on the cover of a business magazine. The court quashed a criminal complaint filed against him in Anantapur in Andhra Pradesh under Section 295A of the Indian Penal Code, a provision that makes “deliberate and malicious acts intended to outrage religious feelings” a punishable offence. The court said there was no deliberate intent on the part of the cricketer or the magazine to hurt religious sentiments. It drew upon the interpretation given to Section 295A by a Constitution Bench as early as in 1957 that it 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”. It is a matter of satisfaction that the highest court intervenes from time to time to stymie attempts by those claiming that their religious sentiments are offended by some act or remark of celebrities and dragging them to courts in different parts of the country. Judicial relief does come in the end, but the bitter truth is that the process is the punishment; it is time our lower courts stop taking reflexive cognisance of trivial or vexatious cases filed on the basis that the religious, caste or cultural sensitivities of some group have been offended.
In essence, Section 295A is a thinly disguised blasphemy law — the only difference being that it is ‘secular’ insofar as it applies to all religions or all forms of religious insult. A close cousin of this provision is another much misused section of the IPC — 153A. Intended to punish those who promote enmity between different groups on grounds of religion, race, place of birth, residence and language, and doing acts prejudicial to the maintenance of harmony, this section has been employed to harass writers and artists and cast a chill on free expression. The problem with insult laws, irrespective of the form they assume, is that they are inherently subjective. There is no guessing what causes insult/offence/hurt to people, leaving it open for such provisions to be blatantly misused. In this respect, Section 295A and 153A resemble our controversial contempt of court law — there is no saying what will scandalise a judge and therefore no saying when and for what contempt may be invoked. The two IPC provisions encourage the creation of what novelist Monica Ali described as a “marketplace of outrage” — an economy that feeds on anger and hostility. They need to be read down, their scope narrowed in a way that moral vigilantes and those who affect an emotional victimhood can no longer exploit the law to serve their narrow chauvinistic ends.