GS Paper: GS2

Why in the News

Section 295A and the provisions that succeeded it have been turned against writers, artists and reformers, with arrest, mob campaigns and pre emptive withdrawal delivering the harm long before any verdict. India simultaneously runs statutes that direct the State to attack religious and superstitious practice, so the same legal system both punishes criticism of religion and mandates it.

What is Section 295A?

1. What it penalises: Section 295A of the Indian Penal Code, 1860 punished deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs.
2. Successor provision: The corresponding offence is now Section 299 of the Bharatiya Nyaya Sanhita, 2023.
3. What the offence turns on: Liability rests on the intent to outrage and not on the truth or falsity of what was said.
4. How it operates in practice: The offence is cognisable, so a complaint can produce arrest and judicial custody before any court assesses whether malice existed.

What is the heckler’s veto?

1. Heckler’s veto: A heckler’s veto is the suppression of expression because a hostile audience threatens disruption or violence, so the objector rather than the law decides what may be said. Speech is stopped in order to keep the peace, which transfers the power of censorship to whoever protests loudest.

What is a sacrilege law?

1. Sacrilege law: A sacrilege law criminalises damage to or desecration of a religious text or object, as distinct from an offence aimed at outraging feelings through speech or writing. State level sacrilege provisions of this kind carry punishment extending to imprisonment for life.

What does the law on outraging religious feelings currently cover in India?

1. The core offence: Section 299 of the Bharatiya Nyaya Sanhita, 2023 penalises deliberate and malicious acts intended to outrage religious feelings by insulting religion or religious beliefs, whether by words, writing, signs or visible representation.
2. Adjacent offences: Section 298 covers injuring or defiling a place of worship with intent to insult a religion, Section 300 covers disturbing a religious assembly and Section 302 covers uttering words with deliberate intent to wound religious feelings.
3. Group enmity provisions: Section 196 penalises promoting enmity between groups on grounds of religion, race, place of birth, language or caste, and Section 197 covers imputations prejudicial to national integration.
4. No standalone blasphemy statute: India has no offence of blasphemy as such, and the protection is assembled from provisions aimed at intent to outrage rather than at the content of any belief.
5. State level escalation: Some States have enacted sacrilege provisions carrying punishment up to imprisonment for life, which sets the penalty far above the central provision.
6. Judicial test applied: In Amish Devgan v Union of India (2020) the Supreme Court laid down a three part contextual test examining the content of the speech, the intent of the speaker and the harm caused or likely to be caused.
7. Truth is not a defence: Courts have held that a wholly true statement can still outrage religious feelings, so accuracy does not absolve the speaker.

Constitutional Provisions Related to Free Speech and Religious Freedom

1. Article 19(1)(a): Guarantees every citizen the right to freedom of speech and expression.
2. Article 19(2): Permits reasonable restrictions on that right on enumerated grounds, including public order, decency, morality, defamation and incitement to an offence.
3. Article 25(1): Guarantees freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health.
4. Article 25(2)(a) and Article 25(2)(b): Permit the State to regulate secular activity associated with religious practice, and to provide for social welfare and reform including throwing open Hindu religious institutions to all classes.
5. Article 26: Gives every religious denomination the right to manage its own affairs in matters of religion, subject to public order, morality and health.
6. Article 14: Requires that a penal classification rest on an intelligible differentia bearing a rational nexus to the object of the provision.
7. Article 21: Protects life and personal liberty, which is what arrest and pre trial custody in a speech case directly curtails.
8. Article 15(1) and Article 17: Bar discrimination on grounds of religion and caste and abolish untouchability, which are the constitutional basis for statutes attacking exploitative religious practice.
9. Article 51A(h): Makes it a fundamental duty of every citizen to develop the scientific temper, humanism and the spirit of inquiry and reform.
10. Preamble: Declares India a secular republic, and secularism has been held to be part of the basic structure and therefore beyond amendment.

How has the provision been used against writers, artists and film?

1. Angarey, 1932: A small collection of Urdu short stories attacking obscurantist customs and the sexual hypocrisy of some religious figures was banned soon after publication, and its authors faced threats.
2. The Satanic Verses, 1988: The government banned import of Salman Rushdie’s novel, making India one of the first countries in the world to act against it, and a secular one at that.
3. The Da Vinci Code, 2006: Seven Indian States banned the film and the book on the ground that they offended Christian sentiment, and two States lifted the ban only after High Court intervention.
4. The Hindus: An Alternative History, 2014: Wendy Doniger’s book was withdrawn by Penguin India after a civil suit invoking Section 295A, so the withdrawal followed a civil filing rather than any conviction.
5. Madhorubagan, 2015 and 2016: Perumal Murugan faced a criminal complaint and a mob campaign over the novel and announced his own death as a writer in 2015; a Madras High Court judgment of 2016 quashed the case and closed with the appeal to let the author be resurrected to what he is best at, write.
6. M.F. Husain: The painter was hounded into exile and death abroad after decades of prosecutions and threats over his nude depictions of Hindu deities.
7. Taslima Nasrin: Her writing has met comparable treatment through bans, threats and constraints on where she may live and publish.

Why does the harm occur before any verdict?

1. Rehana Fathima, 2018: Weeks after the Supreme Court lifted the traditional ban on women of menstruating age entering the Sabarimala temple, the Kerala activist was arrested under Section 295A over a Facebook photograph of herself dressed as an Ayyappa devotee.
2. Cost imposed without trial: She spent over two weeks in judicial custody and was suspended by her employer within days of the arrest, all over an image rather than an argument.
3. Amish Devgan, 2020: The television anchor called the Sufi saint Khwaja Moinuddin Chishti a lootera during a live debate, apologised within days for what he said was an inadvertent slip for a different historical name, and still faced seven separate first information reports across five States.
4. Multiplicity as the punishment: The Supreme Court declined to quash any of the seven and merely clubbed them together in Ajmer, so the burden of defending across five jurisdictions was reduced rather than removed.
5. Conviction is not the point: These cases rarely end in conviction and the prosecution more often goes nowhere, so the process itself operates as the penalty.
6. Three channels of harm: The damage is delivered through arrest, through the heckler’s veto of an aggressive and sometimes violent audience, and through the pre emptive caution of publishers and film certifiers who calculate that no book or film is worth the trouble.

Which laws run in the opposite direction?

1. Constituent Assembly position, 2 December 1948: During the debate on whether personal law should be shielded from legislative reform, B.R. Ambedkar rejected the idea that religion could claim a veto over social legislation merely because a custom carried religious sanction.
2. The reasoning he gave: He said he did not understand why religion should be given a vast, expansive jurisdiction covering the whole of life and preventing the legislature from encroaching upon that field, since this liberty exists in order to reform the social system, so personal law cannot be excluded from the jurisdiction of the State.
3. Maharashtra, 2013: The Prevention and Eradication of Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act was passed after the assassination of the rationalist campaigner Narendra Dabholkar.
4. What that Act criminalises: It penalises a long list of exploitative religious practices, ranging from claiming to cure disease through faith healing to inducing self flagellation.
5. Karnataka, 2017: The State passed a comparable law against inhuman evil practices and black magic.
6. Sati (Prevention) Act, 1987: It criminalises not only the act of widow immolation but its glorification, treating celebratory speech about a religious practice as itself an offence.
7. The mirror image rather than the opposite: A law punishing praise of a religious practice uses the same technique as a law punishing criticism of one, since both make speech about religion a criminal question.
8. What the coexistence exposes: Indian law has no coherent theory of when religious sentiment deserves protection, and what governs is a case by case political calculation about which practices are currently unpopular enough, or which constituencies currently powerful enough, to tip the balance.

Why does the reformer fall on the wrong side of a blasphemy law?

1. The State of Mysore versus Henry Rodrigues, 1961: A Catholic editor was tried under Section 295A over an article in his Konkani language magazine Crusader, titled “Honour to Mary or Dishonour?”, which accused Catholic priests of exploiting the credulous by falsely attributing miracles to the Virgin Mary.
2. The defence offered: He argued that since the criticised beliefs and practices were superstitious and contrary to the Bible itself, the truth of his charge ought to absolve him.
3. The court’s answer: Following an earlier Allahabad High Court ruling, the Mysore High Court rejected this outright, holding that even a wholly true statement can outrage religious feelings and that the provision punishes the intent to outrage rather than the accuracy of what is said.
4. The insider treated as the stranger: A believer’s sincere and internally argued complaint against his own clergy was treated exactly as the law treats a stranger’s contempt.
5. Jyotirao Phule: He spent the 1870s attacking Brahminical religious authority as the theological scaffolding of caste oppression, recasting Hindu myth in his tract Gulamgiri to expose it as a device for keeping the lower castes subjugated.
6. Hamid Dalwai: A century later he founded the Muslim Satyashodhak Mandal explicitly on Phule’s model, marched a handful of Muslim women to the Maharashtra Assembly to demand an end to triple talaq and polygamy, and was ostracised and abused for it.
7. The pair the law cannot separate: The offence does not distinguish a Phule or a Dalwai from a bigot baiting a rival faith for sport, since both are trying to make believers feel bad about what they believe.
8. A line a police station cannot draw: What should separate them is whether the critic is trying to improve the community or merely humiliate it, and an officer recording a complaint is poorly placed to make that assessment.

Major debates surrounding blasphemy and sacrilege law in India

1. Public order against expression: A targeted law applied with judicial restraint and the safeguard of proven intent is defended as a proportionate response to sentiment that has repeatedly proved combustible, rather than as an assault on free thought.
2. Restraint in principle against the record in practice: The historical record of Section 295A, and now of State sacrilege law, gives little confidence that restraint is what actually happens once a complaint is registered.
3. Discussion, advocacy and incitement: Shreya Singhal v Union of India (2015) held that only incitement carrying a direct and proximate connection to public disorder may be criminalised, and that discussion and advocacy remain protected even where unpopular.
4. Intent against effect: Whether liability should turn on what the speaker meant or on the disorder that followed, since the intent test is applied only after an audience has already reacted.
5. Truth as a defence: Whether a demonstrably accurate factual claim about a religious practice should absolve the speaker, which the 1961 ruling denied outright.
6. Proportionality of punishment: Whether imprisonment for life for an insult to a text can be reconciled with a Constitution whose secularism is held unamendable.
7. New law against enforcement: In Ashwini Kumar Upadhyay v Union of India (April 2026) the Supreme Court dismissed a batch of petitions seeking fresh hate speech legislation, holding that creating criminal offences belongs to the legislature and that the real problem is an enforcement deficit.
8. Empirical gap: Data under these provisions is not published in a form that sets arrests, days in custody and withdrawn publications against convictions, so the argument runs on cases rather than on measured outcomes.

Challenges to reforming laws on religious offence

1. Cognisability delivers the punishment: An offence that permits arrest on a complaint produces custody before a magistrate examines whether malice existed. Eg. In Imran Pratapgarhi v State of Gujarat (2025) the Supreme Court extended the preliminary inquiry safeguard to first information reports in speech cases precisely to interpose a check before registration.
2. Forum multiplicity: A single utterance can be prosecuted in every jurisdiction where a complainant chooses to file. Eg. Clubbing seven first information reports at Ajmer in 2020 consolidated the defence without removing the cost of defending in a distant State.
3. Self censorship leaves no record: A publisher or certifier that withdraws before any order removes the work without producing a judicial decision that can be appealed. Eg. Penguin India withdrew and destroyed copies of The Hindus: An Alternative History in 2014 with no conviction and no court direction requiring it.
4. Mob campaign as the real enforcement mechanism: The threat of disruption achieves what a prosecution cannot. Eg. Perumal Murugan withdrew from writing in 2015 after a mob campaign and a local shutdown, and resumed only after the Madras High Court judgment of 2016.
5. State level bans without central legislation: Executive bans multiply at the State level and are reversed only through litigation. Eg. Seven States banned The Da Vinci Code in 2006 and two lifted the ban only after their High Courts intervened.
6. Penalty escalation at the State level: A State provision can prescribe imprisonment for life for an offence against a text, which exceeds the penalty for many offences against the person. Eg. State sacrilege provisions carry punishment extending to imprisonment for life against a maximum of a few years under the central provision.
7. Recodification carried the provision forward: The most recent opportunity to narrow the offence was not used. Eg. The Bharatiya Nyaya Sanhita, 2023 re-enacted Section 295A as Section 299 unchanged, instead of confining it to incitement to violence.

Conclusion

Section 295A and its successor punish the intent to outrage rather than the falsity of what is said, so a reformer criticising his own faith is caught by the same words as a bigot baiting a rival one. India runs that regime alongside statutes that direct the State to criminalise faith healing, black magic and the glorification of sati, which shows there is no settled principle about when religious sentiment deserves protection. What remains unresolved is whether these provisions will be narrowed to their original and defensible purpose of preventing incitement to actual violence, leaving criticism, satire and reform of religious practice to public argument rather than to the criminal courts.

What is Secularism?

1. About: Secularism is the principle that the State holds no religion of its own and treats every faith on the same footing in law and in the distribution of public benefits.
2. Rationale: It exists to keep the coercive power of the State out of the hands of any religious majority or clergy, and to make citizenship independent of belief.
3. Strict separation model: The State and religion operate in mutually exclusive spheres, with the State neither aiding nor interfering with any religion, which is the model associated with the United States and France.
4. Principled distance model: The State keeps no religion of its own and retains the power to intervene in religious practice for social reform and equality, which is the model the Indian Constitution follows.
5. Positive neutrality: Equal treatment is delivered through equal respect rather than equal indifference, so the State may fund, regulate and administer religious institutions on a non preferential basis.
6. Constitutional location: The word secular was inserted in the Preamble by the Constitution (Forty second Amendment) Act, 1976, and S.R. Bommai v Union of India (1994) held secularism to be part of the basic structure.
7. Essential religious practices doctrine: Courts decide the reach of religious freedom by asking whether a practice is essential to the religion, which places the determination of religious content with the judiciary.

Key Concerns Regarding Secularism in India

1. State entanglement with religious administration: Endowment departments and statutory boards administer the institutions of some faiths and not others, so the State’s distance is uneven across religions.
2. Judicial determination of religious content: The essential religious practices test requires judges to decide questions of theology, a function courts were not designed or equipped for.
3. Asymmetric reform power: Article 25(2)(b) expressly permits the opening of Hindu religious institutions, and comparable reform in other communities has proceeded largely through litigation rather than legislation.
4. Personal law plurality against Article 44: The directive for a uniform civil code remains unimplemented, so family law continues to differ by religion.
5. Majoritarian capture of neutral language: A formally neutral provision protects the practices of the dominant community more effectively, since those practices attract fewer complaints and fewer prosecutions.
6. No horizontal anti discrimination remedy: Discrimination on religious grounds by private landlords and employers has no general statutory remedy, since constitutional guarantees bind the State.

Laws and Rules Governing Religious Offence in India

1. Indian Penal Code, 1860: Chapter XV grouped the offences relating to religion and remained the governing law until 2024.
2. Section 295A was inserted by the Criminal Law Amendment Act, 1927 following the Rangila Rasul prosecution.
3. Sections 295 to 298 covered defiling a place of worship, disturbing a religious assembly, trespass on burial places and wounding religious feelings by word.
4. Bharatiya Nyaya Sanhita, 2023: Replaced the Indian Penal Code with effect from 1 July 2024 and carried this chapter forward.
5. Section 299 corresponds to Section 295A, Section 298 to Section 295, Section 300 to Section 296 and Section 302 to Section 298.
6. Bharatiya Nagarik Suraksha Sanhita, 2023: Provides for a preliminary inquiry before registration of a first information report in specified categories of offence, and for prior government sanction before a court takes cognisance of certain offences relating to religion.
7. Cinematograph Act, 1952: Empowers the certifying authority to refuse or condition certification of a film on grounds mirroring Article 19(2), including public order and decency.
8. Information Technology Act, 2000: Section 69A permits blocking of online content on grounds that track the restrictions in Article 19(2).
9. Sati (Prevention) Act, 1987: Criminalises the act of sati, its abetment and its glorification, and provides for Special Courts to try these offences.
10. Maharashtra Prevention and Eradication of Human Sacrifice and Other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013: Criminalises a listed set of exploitative practices including faith healing claims and induced self flagellation.
11. Karnataka Prevention and Eradication of Inhuman Evil Practices and Black Magic Act, 2017: Enacts a comparable prohibition in that State.
12. Protection of Civil Rights Act, 1955: Penalises the enforcement of religious disabilities arising out of untouchability, including denial of temple entry.

Back2Basics: Jyotirao Phule

1. Life: Born in 1827 in a family of the Mali caste in present day Maharashtra, and died in 1890 in Pune.
2. First school: Opened a school for girls at Bhide Wada in Pune in 1848, among the earliest such schools established by an Indian.
3. Extension to the excluded castes: Opened a school in 1851 for children of the castes then treated as untouchable.
4. Organisation founded: Founded the Satyashodhak Samaj, the Society of Truth Seekers, on 24 September 1873 in Pune, to secure social justice for the lower castes without priestly mediation.
5. Principal writings: Wrote Gulamgiri in 1873, which read Hindu myth as a record of the subjugation of the lower castes, and Shetkaryacha Asud in 1883 on the condition of the cultivator.
6. Vocabulary contributed: Popularised the term Dalit for the oppressed castes, which entered later political usage.
7. Social work: Opened a home for widows and a centre for the prevention of infanticide, and supported widow remarriage.
8. Title conferred: Given the title Mahatma in 1888 at a public gathering in Bombay.
9. Partnership: Worked with Savitribai Phule, who taught at the Bhide Wada school and is counted among India’s first women teachers.
10. Later influence: His model was invoked directly by Hamid Dalwai in founding the Muslim Satyashodhak Mandal in 1970.

Way Forward

1. Narrow the offence to incitement: Confine Section 299 of the Bharatiya Nyaya Sanhita, 2023 to speech carrying a direct and proximate connection to violence, in line with the Shreya Singhal test.
2. Make the offence non cognisable: Remove the power to arrest on a bare complaint, so that custody does not precede any judicial assessment of deliberate and malicious intent.
3. Require prior sanction and preliminary inquiry: Make registration of a first information report conditional on a preliminary inquiry and on sanction by a designated senior officer, extending the Imran Pratapgarhi safeguard to every provision in this chapter.
4. Consolidate multiple complaints by statute: Provide that all first information reports arising from a single publication or utterance are transferred to one jurisdiction as a matter of right, rather than case by case.
5. Introduce a public interest defence: Allow truth combined with a reformist or scholarly purpose as a statutory defence, so an insider critic is separated from a speaker seeking only to humiliate.
6. Cap the penalty: Bring State sacrilege provisions within a central ceiling so that an offence against a text cannot carry imprisonment for life.
7. Protect the publisher and the certifier: Bar interim injunctions and pre publication restraints on books and films except on a judicial finding of imminent violence, so withdrawal is not the cheapest option.

“[2014, GS2, 12.5] What do you understand by the concept “freedom of speech and expression”? Does it cover hate speech also? Why do the films in India stand on a slightly different plane from other forms of expression? Discuss.”