Let’s curb misuse of a legal relic that elevates the mob over the individual

Why in the News

Section 295A of the Indian Penal Code, 1860, re-codified as Section 299 of the Bharatiya Nyaya Sanhita (BNS), is under fresh criticism for converting subjective offence into a cognisable, non-bailable criminal charge. The provision was introduced by the British in 1927 during the “Rangeela Rasool” controversy, after a provocative Urdu pamphlet satirising the Prophet Muhammad’s personal life sparked widespread communal riots. It survives in independent India under Article 19(2) of the Constitution, which permits speech restrictions in the interests of public order. The tension is between a criminal provision built to preserve public order and a constitutional guarantee of expression that the provision’s procedure defeats before any court examines malice.

What does Section 299 of the Bharatiya Nyaya Sanhita cover?

1. The offence: It penalises deliberate and malicious acts intended to outrage religious feelings, which was the stated purpose when Section 295A was enacted in 1927.
2. Colonial rationale: It was born of a colonial urge to police Indian subjects deemed too volatile to handle the friction of free and provocative speech.
3. Procedural character: The offence is cognisable and non-bailable, so the police may register a case and arrest without a magistrate’s prior direction and bail is not a matter of right.
4. Constitutional validity: Ramji Lal Modi vs State of Uttar Pradesh (1957) upheld Section 295A, reading the words “deliberate and malicious” as the narrowing element that keeps it within Article 19(2).

How does the provision create a heckler’s veto?

1. Offence converted into an offence in law: Translating the subjective and volatile idea of “emotional hurt” into a criminal charge hands a permanent “heckler’s veto” to the most intolerant segments of society.
2. Inverted hierarchy of rights: It creates a perverse incentive for outrage by elevating “the right to be offended” above the right to free speech.
3. Low threshold to trigger the state: One aggrieved individual filing a First Information Report (FIR) in a remote corner of the country instantly triggers the machinery of the state.
4. Who it is triggered against: Writers, filmmakers, stand-up comedians and publishers face it for speech that a court often finds, years later, was never malicious at all.
5. Incentive for entrepreneurs of grievance: Political entrepreneurs, religious zealots and competitive vigilante groups find that claiming wounded sentiment is the easiest path to public relevance.

What does the resulting self-censorship look like?

1. Withdrawal of a published work: Penguin Books India withdrew distribution of Joe Sacco’s graphic novel on the Muzaffarnagar riots.
2. Pulping of an academic work: The same publisher had earlier pulped copies of Wendy Doniger’s *The Hindus*.
3. Pre-emptive editing: Cuts were sought to Sonia Gandhi’s memoirs that the publisher’s global arm had not considered necessary for the international edition.
4. None of it was legally required: None of these texts was legally proscribed, so each was a pre-emptive surrender in which commercial risk aversion replaced constitutional principle.
5. Spread beyond publishing: Galleries pull provocative paintings, studios quietly cancel scripts and academics choose safer research topics, leaving a public square reduced to bland conformity.

Why is the process itself the punishment?

1. Arrest precedes any finding: The law allows arrest before a trial can establish whether malice existed, so the element that makes the act criminal is tested last.
2. Cost of defending the case: Multi-city court appearances, jail time and financial ruin break the spirit of an artist or author irrespective of the eventual verdict.
3. Behavioural consequence: When the cost of creative expression is the potential loss of personal liberty, most creators choose to pull their punches.

What did the 2008 Delhi High Court ruling on M F Husain establish?

1. What the judgment did: It quashed criminal proceedings against the self-exiled painter M F Husain and set out a defence of artistic liberty against intolerance.
2. How the charges were answered: The ruling dismantled the obscenity and blasphemy charges by placing Husain’s abstract nude depiction of Bharat Mata within India’s four-millennia-old heritage of sacred, pluralistic and erotic iconography, from Khajuraho to Konark.
3. The warning it recorded: It critiqued the “new puritanism” pursued by self-appointed guardians of cultural purity and warned that such a society would push India backward.
4. The principle it fixed: One disapproving viewer cannot hold the right to restrict free expression, which is the constitutional shield the ruling established for creative dissent.

What reforms would reverse the incentive structure?

1. Prior sanction before the FIR: Government sanction should be required before an FIR under BNS 299 is registered, rather than after the accused has already endured an investigation and a chargesheet.
2. Consolidation of parallel FIRs: Multiple FIRs on the same subject lodged in different States should be consolidated immediately into a single proceeding.
3. Fast-tracking of quashing petitions: BNS 299 cases should be fast-tracked so that frivolous proceedings are quashed early rather than after years.
4. Costs on vexatious complainants: Vexatious complainants should face costs or other punitive consequences, so the incentive structure of the provision is reversed rather than reinforced.

Conclusion

Scrutiny of intent currently arrives at the end of the process, by which point the prosecution has already imposed the cost the provision was never meant to impose. Moving that scrutiny to the point before registration is what separates a public order safeguard from a licence for organised offence-taking. The unresolved conflict is between a constitutional test that turns on deliberate malice and a procedure that reaches arrest before malice is examined at all. Until the procedure is changed, the outcome of a case will continue to matter less than the fact of one.

What is freedom of speech and expression under the Constitution?

1. About: Article 19(1)(a) guarantees every citizen the right to freedom of speech and expression, read to include the right to receive and circulate information.
2. Rationale: The guarantee protects the process by which citizens form and contest opinions, so it exists to shield unpopular expression rather than agreeable expression.
3. The restriction clause: Article 19(2) permits reasonable restrictions on eight grounds, the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, contempt of court, defamation and incitement to an offence.
4. The reasonableness test: A restriction must fall within one of those eight grounds and must be reasonable, which is why Shreya Singhal vs Union of India (2015) struck down Section 66A of the Information Technology Act, 2000 as vague and overbroad.

Back2Basics: Bharatiya Nyaya Sanhita, 2023

1. What it is: The statute that replaced the Indian Penal Code, 1860 as India’s principal criminal law.
2. When it took effect: It came into force on 1 July 2024, alongside the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Adhiniyam, 2023.
3. Structure: It carries 358 sections against the 511 of the Code it replaced, with several offences merged or renumbered.
4. Relevance here: Section 295A of the Indian Penal Code is carried forward as Section 299, so the offence survives the recodification substantially unchanged.

Matching Previous Year Question

“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.”