OFFENCES AGAINST RELIGION

Law of Crimes
 SYNOPSIS

Contents Page No.

 Introduction 3-6
 Crime
 Criminal Law
 Offences against Religion 7
 Introduction
 Defilement of place of worship or 8-10
objects of veneration (ss 295, 297,
IPC);
 Outraging or wounding religious 11-14
feelings of any class (ss 295A and
298, IPC)
 Disturbing a religious assembly (s 15-16
296, IPC)
 Offences against Religion in News 17-20
 Recent Cases 21-32
 Conclusion 33-34
 Bibliography 35

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 INTRODUCTION

CRIME

WHAT IS A CRIME? We must answer this question at the outset. In order to answer this
question we must know first, what is law because the two questions are closely inter-related?
Traditionally, we know a law to be a command enjoining a course of conduct. The command
may be of a sovereign or of political superiors to the political inferiors; or it may be the
command of a legally constituted body or a legislation emanating from a duly constituted
legislature to all the members of the society. A crime may, therefore, be an act of
disobedience to such a law forbidding or commanding it. But then disobedience of all laws
may not be a crime, for instance, disobedience of civil laws or laws of inheritance or
contracts. Therefore, a crime would mean something more than a mere disobedience to a law,
"it means an act which is both forbidden by law and revolting to the moral sentiments of the
society." Thus robbery or murder would be a crime, because they are revolting to the moral
sentiments of the society, but a disobedience of the revenue laws or the laws of contract
would not constitute a crime. The content of crime changes from time to time in the same
country and from country to country at the same time because it is conditioned by the moral
value approved of by a particular society in a particular age in a particular country. A crime
of yesterday may become a virtue tomorrow and so also a virtue of yesterday may become a
crime tomorrow.

WHAT IS THE TEST of criminality or criminal liability? The true test of criminal
liability has had a gradual development. In the very beginning only the most serious crimes
were recognised and were singled out for punishment. The list of crimes at that time was
short. In the next stage we find that the machinery for administration of justice was refined
and developed, and procedural laws for the trial of criminal cases were also reformed. In this
process of development we find that certain fundamental principles were evolved. The first
was that nobody should be held liable unless he had the evil intent to commit it, and the
second was that the accused was to be presumed to be innocent unless he was proved to be
guilty. The former principle assumed a Latin garb and became known as actus non facit
reum, nisi mens sit rea, and was first cited as a principle by Lord Kenyon C.J. in Fowler v.
Pedger thus: "It is a principle of natural justice and of our law that actus non facit reum, nisi

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mens sit rea." This principle has even in modern times been accepted to be a leading doctrine
of criminal law, for Lord Goddard C.J. observed in a case in 1949: "actus non facit reum, nisi
mens sit rea is a cardinal doctrine of the Criminal Law." This maxim which has been
accepted not only by the courts of England but also our own courts recognise that there are
two necessary elements in a crime, namely, first, a physical element, and, secondly, a mental
element. The former is known technically as actus reus and the latter as mens rea. These are
the tests of criminality known to our law and to the laws of England.

Now, come to the ELEMENTS. The two elements of crime are mens rea and actus
reus. Apart from these two elements that go to make up a crime, there are two more
indispensable elements, namely, first, “a human being under a legal obligation to act in a
particular way and a fit subject for the infliction of appropriate punishment,” and secondly,
“an injury to another human being or to the society at large.” Thus the four elements that go
to constitute a crime are as follows: first, a human being under a legal obligation to act in a
particular way and a fit subject for the infliction of appropriate punishment: secondly, an evil
intent or mens rea on the part of such human being; thirdly, actus reus, i.e., act committed or
omitted in furtherance of such an intent; and fourthly, an injury to another human being or to
society at large by such an act.

CRIMINAL LAW

Criminal law is the body of law that relates to crime. It regulates social conduct and
proscribes threatening, harming, or otherwise endangering the health, safety, and moral
welfare of people. It includes the punishment of people who violate these laws. Criminal law
differs from civil law, whose emphasis is more on dispute resolution and victim
compensation than on punishment.

WHAT ARE THE OBJECTIVES? Criminal law is distinctive for the uniquely serious
potential consequences or sanctions for failure to abide by its rules. Every crime is composed
of criminal elements. Capital punishment may be imposed in some jurisdictions for the most
serious crimes. Physical or corporal punishment may be imposed such as whipping or caning,
although these punishments are prohibited in much of the world. Individuals may be
incarcerated in prison or jail in a variety of conditions depending on the jurisdiction.
Confinement may be solitary. Length of incarceration may vary from a day to life.
Government supervision may be imposed, including house arrest, and convicts may be

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required to conform to particularized guidelines as part of a parole or probation regimen.
Fines also may be imposed, seizing money or property from a person convicted of a crime.
Five objectives are widely accepted for enforcement of the criminal law by punishments:
retribution, deterrence, incapacitation, rehabilitation and restoration.

Indian Criminal Laws are divided into three major acts i.e. Indian Penal Code, 1860,
Code of Criminal Procedure, 1973 and Indian Evidence Act, 1872. Besides these[clarification
needed] laws, special Criminal Laws are also passed by Indian Parliament i.e., Prevention of
Corruption Act, Food Adulteration Act, dowry prevention act, Commission of Sati Act etc.
thousands of minor laws are made in India.

INDIAN PENAL CODE formulated by the British during the British Raj in 1860,
forms the backbone of criminal law in India. Indian Penal Code was passed under the
chairmanship of Lord Macaulay and was enforced in 1862. It has since been amended several
times and is now supplemented by other criminal provisions. In the state of Jammu and
Kashmir, the IPC is known as Ranbir Penal Code (RPC).1

The OBJECTIVE of this Act is to provide a general penal code for India. Though not
an initial objective, the Act does not repeal the penal laws which were in force at the time of
coming into force in India. This was so because the Code does not contain all the offences
and it was possible that some offences might have still been left out of the Code, which were
not intended to be exempted from penal consequences. Though this Code consolidates the
whole of the law on the subject and is exhaustive on the matters in respect of which it
declares the law, many more penal statutes governing various offences have been created in
addition to the code. Various ordinances and amendments being passed or done to meet the
current social strata of the society, the latest one is Criminal Law (Amendment) Ordinance,
2013 which is an Ordinance promulgated by the President of India, Pranab Mukherjee, on 3
February 2013 which provides for amendment of Indian Penal Code, Indian Evidence Act,
and Code of Criminal Procedure, 1973 on laws related to sexual offences.

The Code is universally acknowledged as a cogently drafted code, ahead of its time. It
has substantially survived for over 150 years in several jurisdictions without major
amendments. Nicholas Phillips, Justice of Supreme Court of United Kingdom applauded the
efficacy and relevance of IPC while commemorating 150 years of IPC. Modern crimes

1
http://www.ipc.in/

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involving technology unheard of during Macaulay's time fit easily within the Code mainly
because of the broadness of the Code's drafting.

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 OFFENCES AGAINST RELIGION

BLASPHEMY LAW is law limiting the freedom of speech and expression relating to
blasphemy, or irreverence toward holy personages, religious artefacts, customs, and beliefs.
Some countries, especially countries which have Islam as the state religion, regard blasphemy
as a serious offence. Pakistan, for example, has legislation which makes execution a penalty
for blasphemy.

Since Hinduism, India's dominant religion, does not have the concept of blasphemy, such
laws are absent in tradition. In 1860, British rule codified Section 295A of the Indian Penal
Code which punishes as hate speech insults or attempts to insult the religion or the religious
beliefs of any citizen with deliberate and malicious intention to outrage their religious
feelings. These laws are applied to all religions including Hinduism, Sikhism, Christianity
and Islam.

INTRODUCTION
The Indian Penal Code in chapter XV, deals with offences relating to religion. This chapter
has been framed on the principle that every man should have the full freedom to follow his or
her own religion and that no man should be allowed to insult the religion of another, or
religious feelings of any class of persons also enshrined under Articles 25 to 28 of the Indian
Constitution.

India has no religion of its own; there is no state religion, unlike Islamic countries,
such as Pakistan, Malaysia, Saudi Arabia, Iran and most of Middle East countries where
Islam is the state religion. However, this freedom is not absolute. It is a limited one, subject
to public order, morality, decency and health.

Chapter XV is a small chapter consisting of five sections—ss 295, 295A, 296, 297
and 298 which can be grouped into the following three divisions:
I. Defilement of place of worship or objects of veneration (ss 295, 297, IPC);
a) Injury or defiling place of worship with intent to insult the religion of any
class (s 295, IPC);
b) Trespassing burial places etc. (s 297, IPC);
II. Outraging or wounding religious feelings of any class (ss 295A and 298, IPC);

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III. Disturbing a religious assembly (s 296, IPC).

DEFILEMENT OF PLACE OF WORSHIP OR OBJECTS OF

VENERATION

The offence of defilement of a place of worship or an object of veneration comprises two

separate offences, that is, injury or defiling place of worship with intent to insult the religion
of any class (s 295, IPC), and trespassing burial places etc. (s 297, IPC).

S. 295. Injury or defiling place of worship with intent to insult the religion of any
class.— Whoever destroys, damages or defiles any place of worship, or any object held
sacred by any class of persons with the intention of thereby insulting the religion of any class
of persons or with the knowledge that any class of persons is likely to consider such
destruction, damage or defilement as an insult to their religion, shall be punished with
imprisonment of either description for a term which may extend to two years, or with fine, or
with both.

The object of this section is to punish those persons who intentionally wound the
religious feelings of others by injuring or defiling a place of worship. This section is intended
to prevent wanton insult to the religious notions of a class of persons.2 This section has been
intended to respect the religious susceptibilities of persons of different religious persuasions
or creeds. Courts have got to be every circumspect in such matters and to pay due regard to
the feelings and religious emotions of different classes of persons with different beliefs,
irrespective of the consideration whether or not they share those beliefs, or whether they are
rational or otherwise, in the opinion of the Court.3 This section does not penalise any and
every act of insult or attempt to insult the religion or the religious beliefs of a class of
citizens, which are not perpetrated with the deliberate and malicious intention of outraging
the religious feelings of that class do not come within the scope of the sections. 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.

2
Gopinath v. Ramchandra, (1958) cut 485.
3
Veerabhadran Chettiar v. Ramaswami Naicker, AIR 1958 SC 1032: 1958 Cr L J 1565 (1568).

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 In Sheo Shankar4 case, the damaging or destroying of a sacred thread worn by a
person, who is not entitled under the Hindu custom to wear it or for whom the wearing of the
sacred thread was not part of his ceremonial observance under the Hindu religion, in assertion
of a mere claim to higher rank, was held to be not an insult to his religion.

In the case of Harun Rashid5 (following Balaka Singh6 and Onkarnath7), where two
persons were prosecuted for having abetted an offence under this section and the witnesses
for the prosecution gave only a joint or boiled down gist of the statements of the two accused
without saying as to which of them said what and one of the accused was acquitted, it was
held that it was not possible to convict the remaining accused on such evidence, for a
summary of an inextricably mixed up speech even if not broadly inaccurate yet it may not
faithfully reflect what the speakers actually said and in what context.

In Guwahati case of Harun Rashid v. State of Assam8, the accused was charged for
abetting the destruction of image Durga on the river Bank of Barak. But the idol was found
intact, only the neck of the Asura was missing. The charge was held to be not proved.

S. 297. Trespassing on burial places, etc.— Whoever, with the intention of wounding
the feelings of any person, or of insulting the religion of any person, or with the knowledge
that the feelings of any person are likely to be wounded, or that the religion of any person is
likely to be insulted thereby, commits any trespass in any place of worship or on any place of
sculpture, or any place set apart from the performance of funeral rites or as a depository for
the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to
any persons assembled for the performance of funeral ceremonies, shall be punished with
imprisonment of either description for a term which may extend to one year, or with fine, or
with both.

This section deals more especially with trespasses on places of sepulchre and places
set apart for the performance of funeral rites and as depositories for the remains of the dead.
It extends the principle laid down in S. 295 to places which are treated as sacred. The essence
of the section is an intention, or knowledge of likelihood, to wound feelings or insult religion

4
(1940) 15 Luck 696.
5
1978 Cr L J 256.
6
1975 Cr L J 1734 (SC).
7
1977 Cr L J 947 (SC).
8
Supra note 5.

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and when with that intention or knowledge trespass on a place of sepulchre, indignity to a
corpse, or disturbance to persons assembled for funeral ceremonies is committed, the offence
is complete.9

The section contemplates disturbance of persons engaged in performing funeral

ceremonies. But a Moharram procession is not a funeral ceremony within the meaning of this
section.10

The essence of the offence is mens rea in addition to an act of destruction, damage of
defilement of place or worship. The Law Commission, while commenting on the propriety of
enacting the sections, have rightly said:

We have prescribed a punishment of great severity. The proposed punishment is rigorous

imprisonment for a term which might extend to seven years for the intentional destroying or
defiling of places of worship, or of objects held sacred by any class of persons. No offence in
the whole of the Penal Code is so likely to lead to tumult, to sanguinary outrage and even to
armed insurrection.11

In the case of Katwaru v. State,12 when the prosecution case is that accused wounded
the feelings of any person by ploughing a graveyard— there must be evidence to bring home
charge under Section 297, IPC that the place is set apart as a depository of or the remains of
the dead. Proof of two or three burials is not enough.

In Surdarshan Kumar and Others v. Gangacharan Dubey,13 the accused police

officials had shot dead a criminal in encounter and after post mortem took the body to
deceased’s father who refused to take the body but in the meantime a large crowd had
gathered to see the dead body and in other to avoid law and order problem and ensure public
at large about the death of dangerous criminal his body was roped to tower for few minutes. It
was held that police officials were not guilty u/s. 297 ass they had not intended to show any
indignity to the dead body.

9
Burhan Shah, (1887) PR No. 26 of 1887.
10
Ghosita v. Kalka, (1885) 5 AWN 49.
11
Draft Penal Code, note 5.
12
1976 Cr L J 943.
13
2000 Cr L J 1618 (MP).

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 OUTRAGING OR WOUNDING THE RELIGIOUS FEELINGS

S. 295A. Deliberate and malicious acts, intended to outrage religious feelings or

any class by insulting its religion or religious beliefs.— Whoever, with deliberate and
malicious intention of outraging the religious feelings of any class of citizens of India, by
words, either spoken or written, or by signs or by visible representations or otherwise, insults
or attempts to insult the religion or the religious beliefs of that class, shall be punished with
imprisonment of either description for a term which may extend to three years, or with fine,
or with both.14

The essence of the offence under this section is that the insult to religion or the
outrage to religious feelings must be the sole, or primary, or atleast the deliberate and
conscious intention. In order to bring the case within this section it is not so much the matter
of discourse as the manner of it. The words used should be such as are bound to be regarded
by any reasonable man as grossly offensive and provocative and maliciously and deliberately
intended to outrage the feeling of any class of citizens of India. It is no defence to a charge
under this section for anyone to plead that he was writing a book in reply to the one written
by one professing another religion who has attacked his own religion. 15 The idea of making a
separate offence under Section 295A is to punish those who attempt to insult the religion or
religious belief of any class of citizens in India. It does not probably relate to any act done
with the intention of outraging the religious feelings of any individual or individuals. Section
295A has application where the whole of particular class of citizens is affected and it is for
this reason that a complaint by the State Govt. or an officer empowered in this behalf by the
State Govt. has been made a prerequisite for the initiation of such proceedings. It is also
probably for this reason that the offence has been made to be triable exclusively by the Court
of Session or a Presidency Magistrate although the punishment provided for the same is only
3 years.16 It is not necessary to prove that the accused bore ill-will or enmity against specific
persons.17

14
The section was first inserted by the Criminal Law (Amendment Act) 1927 (25 of 1927) and amended by
Criminal Law (Amendment) Act 1961.
15
Shiv Ram Dass v. King Emperor, AIR 1927 All 649.
16
State of Punjab v.Nand Singh, 1979 Cr L R (P & H) 6.
17
Khalil Ahamad,AIR 1960 All 715 SB.

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 Offence relating to religion is based on malice and basic requirement of the offence is
deliberate and malicious act and person alleging the malicious and deliberate act on part of
another has to prove it. In The Trustee of Safdar Hashmi Memorial Trust v. Govt. of NCT of
Delhi,18 the notification of Govt. of Delhi forfeiting the material containing in the banner,
titled as Ram Katha in Jain tradition and Budh tradition, was challenged on the ground that
notification did not mention the particular material found objectionable. The notification also
did not mention the name of religion or community which was likely to be incensed. It was
held that notification was liable to be nullified as there was complete non-application of the
mind.

In the impugned case of Ramji Lal Modi v. State of Uttar Pradesh19 the constitutional
validity of S. 295A IPC was challenged on the ground that it infringes the fundamental right
of freedom of speech and expression guaranteed under Art. 19(1)(a) of the Constitution.
While holding the constitutionality of S. 295A, IPC, the Supreme Court held that the section
is enacted in the interest of public order, and it only penalises the aggravated form of insult to
religion, when it is perpetrated with the deliberate and malicious intention of outraging the
religious feelings of a class of citizens. Right to freedom of religion is subject to public order,
morality or health. Restrictions on right to freedom may be imposed in interest of public
order. Section 295A, has been included in Chapter XV of the IPC, which deals with offences
relating to religion.

In Chandanmal v. State of W.B.20 the Calcutta High Court in a writ petition under Art.
226 of the Indian Constitution has refused to issue a writ for forfeiting copies of Koran under
Section 295A or 153 IPC. No action can be taken against Koran either under S 295A or
153—banning or forfeiture of Koran cannot be ordered. It would violate the Preamble and
Art. 25 of Constitution. The Koran being a sacred Book and “an object held sacred by a class
of persons” within the meaning of Section 295 of Penal Code, against such book no action
can be taken under S. 295A of Penal Code. Consequently, banning or forfeiture of Koran
cannot be ordered under S. 95 of Cr.P.C. Any other interpretation would lead to absurdity. If
any offence, within the S. 295, IPC is committed, in respect of Koran then it is punishable.

18
2001 Cr LJ 3689 (Del). In this case reference to Section 153A was also made.
19
AIR 1957 SC 620.
20
1986 Crl. L.J. 183.

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 Section 295A, IPC does not penalise any and every act of insult to or attempt to insult
the religion or the religious beliefs of a class of citizens, which are not perpetrated with the
deliberate and malicious intention of outraging the religious feelings of that class. Insults to
religion offered unwittingly or carelessly or without any deliberate or malicious intention of
outraging the religious feelings of that class do not come within the scope of the section. 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 cannot
be said that Koran offers any insult to any other religion. It does not reflect any deliberate or
malicious intention of outraging the religious feelings of non-Muslims. Isolated passages
picked out from here and there and read out of context cannot change the position.

S. 298. Uttering, words, etc., with deliberate intent to wound the religious feelings
of any person.— Whoever, with the deliberate intention of wounding the religious feelings
of any person, utters any word or makes any sound in the hearing of that person or makes any
gesture in the sight of that person or places any object in the sight of that person, shall be
punished with imprisonment of either description for a term which may extend to one year, or
with fine, or with both.

The authors of the Code observe: “In framing this clause we had two objects in view:
we wish to allow all fair latitude to religious discussion, and at the same time to prevent the
professors of any religion from offering, under the pretext of such discussion, intentional
insults to what is held sacred by others. We do not conceive that any person can be justified
in wounding with deliberate intention the religious feelings of his neighbours by words,
gestures or exhibitions. A warm expression dropped in the heat of controversy, or an
argument urged by a person, not for a purpose of vindicating his own will not fall under the
definition contained in this clause.”

It was held in the case of Narasimha v. Shree Krishna21 that the interpolation of a
forbidden chant in an authorised ritual is an offence under this section. In Rahman,22
exhibiting cow’s flesh by carrying it in an uncovered state round a village with the deliberate
intention of wounding the religious feelings of Hindus was held to be an offence under
Section 298.

21
(1892) 2 Mad Jur 236.
22
(1893) 13 AWN 144.

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 In the case of Amjad Seikh v. Emperor23, on the occasion of Bakr-i-Id, the accused
killed a cow at dawn in a semi private place and killing was seen by some Hindus walking
along the village pathway fifty feet away, it was held that no offence under this section was
committed. However, in Kitab Ali v. Santi Ranjan,24 it was held that the sacrifice of cow on
the Bakr-i-Id day is not an obligatory religious act for a Muslim and the prosecution of Art.
25 of the Constitution cannot be claimed for such an act.

Of the offences under the above two Sections 295A and 298, the former is more
serious, for the words used are “outraging” which is undoubtedly a stronger expression than
“wounding” used in Section 298.

The intention to outrage must not only be deliberate but also malicious under Section
295A whereas in Section 298, it need only be deliberate. Again in Section 295, the offensive
words or representations must be directed to a class of persons and not merely against an
individual as in Section 298.

It is no defence to a prosecution under S. 298 that religious feelings were deliberately

shocked or wounded by the accused in order to draw attention to some matter in need of
reform. Under S. 295A however the prosecution must prove that the insult was for the sake of
insulting and with an intention which springs from malice and malice alone. To a charge
under this section, therefore, it would be a good defence to say “I had no malicious intention
towards a class, but I did intend to wound and shock the feelings of an individual, so that
attention might, however rudely, be called to a reform which I had in view.”25

23
AIR 1942 Pat 471.
24
AIR 1965 Tripura 22.
25
Gour, Penal Law, 8th Ed., p. 1795.

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 DISTURBING RELIGIOUS ASSEMBLY

S. 296. Disturbing religious assembly.— Whoever voluntarily causes disturbance to any

assembly lawfully engaged in the performance of religious worship, or religious ceremonies,
shall be punished with imprisonment of either description for a term which may extend to one
year, or with fine, or with both.

Assemblies held for religious worship, or for the performance of religious

ceremonies, are hereby protected from intentional disturbance.

The object of this section is to secure freedom from molestation when people meet for
the performance of acts in a quiet spot vested for the time in the assembly exclusively, and
not when they engage in worship in an unquiet place, open to all the public as a
thoroughfare.26

In order that Section 296, IPC may be invoked the assembly must be actually engaged
in the performance of religious worship or religious ceremonies when the alleged disturbance
is caused. Disturbance during an interval in a worship or prayer is not covered by this
section.27 In Emperor v. Aftab Mohammad Khan,28 it was held that for the purpose of Section
296, when three persons gather together for the purposes of worship it is sufficient to
constitute an “assembly”.

A mosque is a place where all sects of Mahomedans are entitled to go and perform
their devotion ass of right, according to their conscience; and a Mahomedan of one sect
pronouncing the word “amin” loudly, as held in the case of Ata Ullah v. Azim-Ullah,29 in the
honest exercise of conscience, commits no offence or civil wrong.

26
Vijiaraghava Chariar, (1903) 26 Mad 554, 574 FB.
27
(1885) ILR 7 All 461.
28
AIR 1940 All 291.
29
(1889) 12 All 494 FB.

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 But in Jangu v. Ahmadullah,30 it was held that any person, Mahomedan or not, who
goes into a mosque not bona fide for a religious purpose, mala fide, for the purpose of
disturbing others engaged in their devotions, will render himself criminally liable.

Persons of every sect are entitled to take out religious processions with music through
public streets provided that they do not interfere with the ordinary use of the streets by the
public or contravene any traffic regulation or lawful directions issued by the Magistrates. A
religious procession does not change its character merely because the music is temporarily
stopped in front of a mosque. Interference with such a procession by the accused bring them
under the mischief of Section 296 read with Section 341, IPC as decided in Mohamudkhan v.
Emperor.31

In the case of Masit v. Emperor32, certain Lodhas were carrying Flags through public
streets in a procession to a temple with the sanction of public authorities in the performance
of religious ceremony and the persons carrying them constituted an assembly lawfully
engaged in religious ceremony. An attack on such a procession is an offence under Section
296.

The question whether intentional playing of music by a religious procession in front

of a mosque where prayers are being offered constitutes an offence under Section 296, IPC is
not free from difficulty. It depends upon the facts and circumstances of each case. It also
depends on the interpretation of Article 25 of Indian Constitution.

The essential ingredient of an offence under Section 296 is the doing of an act by
which a disturbance is caused. It was held in Mohammed Husain v. Emperor,33 that mere
spreading of false rumours even if proved and even if it results in serious consequences,
cannot amount to “causing a disturbance”.

30
(1889) 13 All 419 FB.
31
AIR 1949 Nag 132.
32
12 Cr L J 573.
33
AIR 1919 All 188.

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 OFFENCES AGAINST RELIGION IN NEWS

 In 1932, some clerics denounced a young woman physician named Rashid Jahan, and
threatened her with disfigurement and death. She and three others had published a
collection of Urdu short stories called Angarey in which they had robustly criticized
obscurantist customs in their own community and the sexual hypocrisies of some
feudal landowners and men of religion. Under section 295A, the authorities banned
the book and confiscated all copies.34
 In 1933, the police arrested Dr. D'Avoine under section 295A for publishing his
article "Religion and Morality" in the September 1933 issue of the magazine Reason.
The trial judge found that the article's purpose was consistent with the purpose of the
magazine, namely, "to combat all religious and social beliefs and customs that cannot
stand the test of reason and to endeavor to create a scientific and tolerant mentality
among the masses of the country". The trial judge Sir H. P. Dastur found that the
article had no malicious intent and did not constitute a violation of section 295A.35
 On 2 August 2006, two religious groups in Ahmedabad complained to the police that
their religious sentiments were hurt because a garment-maker had printed text from
the Hindu and Jain religions on clothing. The police filed the complaint as a matter
under section 295.36
 In December 2006, a complaint was filed against cricketer Ravi Shastri for hurting
the religious feelings of Hindus by his allegedly eating beef during a Test match in
Johannesburg.37
 In March 2007, a newspaper editor BV Seetharam was arrested under the Sections
153A, 153B, and 295 of the IPC for allegedly promoting religious hatred. He had
written articles criticizing the public nudity of the Digambara Jain monks.38
 In May 2007, a Buddhist group in Maharashtra's Amaravati district said their
religious sentiments were hurt, and filed a complaint against Rakhi Sawant, an
actress, because she posed in a bathtub against a statue of Lord Buddha.39

34
Gopal, Priyamvada, "A Forgotten History", 6 December 2007.
35
"India's First Blasphemy Prosecution". International Humanist and Ethical Union, 18 December 2002.
36
"Sacred text on clothes: fashion designer booked", www.nerve.in, 2 August 2006.
37
"Case filed against Ravi Shastri for eating beef", Zee News, 2006-12-23.
38
Freedom of expression under attack by Parvathi Menon, The Hindu, March 8, 2007.
39
"Rakhi in legal trouble over bathtub scene", www.nerve.in, 1 May 2007.

Page | 16
  In September or October 2007, the police in Pune arrested four Bangalore-based
software-engineers for posting on the Internet an obscene profile of Chhatrapati
Shivaji, a sixteenth-century Maratha warrior king, clad in female underwear.40,41
 In 2007, the authorities charged ninety-one-year-old Maqbool Fida Husain with
hurting religious sentiments by painting Mother India as a naked woman.42
 Jokes on Sardars: In March 2007, around 25 Sikh youths from Sikh Media and
Culture Watch (SMCW) demanded arrest of Ranjit Parande, a Matunga-based book
seller, for stocking the Santa and Banta Joke Book, a collection of Sardarji jokes.
Based on a complaint filed by a Sikh businessman, the Mumbai Police arrested
Parande under section 295 of the Indian Penal Code, for "hurting religious
sentiments."43
 In February 2009, the police filed a complaint against Ravindra Kumar and Anand
Sinha, the editor and the publisher respectively of the Kolkata-based English
daily The Statesman. The police charged Kumar and Sinha under section 295A
because they had reprinted an article from The Independent by its columnist Johann
Hari Titled "Why should I respect oppressive religions?" The article stated Hari's
belief that the right to criticise any religion was being eroded around the world.
Muslim protestors in Kolkata reacted to Hari's belief by violent demonstrations at the
offices of The Statesman.44
 In November 2012, Maharashtra Police arrested Shaheen Dhada (21) for questioning
the total shutdown in the city for Bal Thackeray’s funeral in a Facebook post, and also
her friend Renu Srinivasan (20) for liking her post. Although no religious issue was
involved, the two were charged under Section 295A for hurting religious sentiments,
apart from Section 66 (a) of the Information Technology Act 200045. The exact
comment posted by Shaheen Dhada was:46

Reacting to this incident, Member of Parliament Rajeev Chandrasekhar said, “This

incident shows the misuse of the IT Act rules as put together by Minister Kapil Sibal.
I am mystified by our government’s approach both to the internet and to the millions

40
Mishra, Gaurav (28 February 2009), "Shiv Sena's Orkut Campaign: The Limits to Freedom of Expression in
an Intolerant India", Gauravonomics Blog.
41
"Pune cops book Orkut user", The Times of India, 2 September 2007.
42
Reuters (7 May 2007), "M F Husain loses home over nude 'Mother India'", Expressindia.com.
43
"Sikhs ask cops to ban 'Sardar' jokes on Net", The Times of India, Mumbai, March 27, 2007.
44
Taylor, Jerome (12 February 2009), "Editor arrested for 'outraging Muslims'", The Independent.
45
"In Palghar, cops book 21-year-old for FB post", Mumbai Mirror, 19 November 2012.
46
"'Mumbai shuts down due to fear, not respect'", The Hindu, 19-11-2012.

Page | 17
 of Indians using it. It does not adhere to the values of our republic and democracy.
This matter needs to be addressed urgently.”

Independent Member of Parliament Rajeev Chandrasekhar has battled tirelessly

against growing internet censorship in India, using his position in the upper house of
parliament to challenge legislation that chokes digital freedom. Mr. Chandrasekhar
has filed a Public Interest Litigation (PIL) in Supreme Court Challenging the IT
Rules.

With all respect, every day, thousands of people die, but still the world moves on. Just due
to one politician died a natural death, everyone just goes bonkers. They should know, we
are resilient by force, not by choice. When was the last time, did anyone showed some
respect or even a two-minute silence for Shaheed Bhagat Singh, Azad, Sukhdev or any of
the people because of whom we are free-living Indians? Respect is earned, given, and
definitely not forced. Today, Mumbai shuts down due to fear, not due to respect.

The two women were later granted bail on a surety of 15,000.47 Their arrest was
strongly criticized by a number of the citizens, including the Press Council of
India chairman Markandey Katju.48,49 An internal inquiry by the Maharashtra Police
deemed the arrests wrongful and indicted four police officers linked to the arrest.50

 In November 2012, a complaint was filed seeking penal action against BJP president
Nitin Gadkari for "hurting" religious sentiments of lakhs of followers of Swami
Vivekananda by comparing him with underworld don Dawood Ibrahim.51
 TDP corporator T Raja Singh filed a complaint against Majlis-e-Ittehadul Muslimeen
(MIM) legislator Akbaruddin Owaisi in the Nampally court for his disparaging
remarks against Hindus in a hate speech on December 24, 2013, the main content of
which was that Muslims would need just 15 minutes without the police to show 100
crore Hindus who is more powerful. Akbaruddin, who is the younger brother of MIM
MP Asaduddin Owaisi, said Hindus have so many gods and goddesses, and every
eight days, there are new gods coming up. "We knew about Lakshmi, but who is

47
"Two women arrested for Anti-Shiv Sena comments on Facebook, government orders enquiry", The
Economic Times (Mumbai), 19 November 2012.
48
"Katju blasts arrest of women who commented on FB", The Hindu, 19-11-2012.
49
"Netizens flay Mumbai girls’ arrest over Facebook post", The Hindu Business Line, 19-11-2012.
50
"FB arrests ‘illegal’, four officers indicted", Mumbai Mirror, 24-11-2012.
51
“Case against Nitin Gadkari for comparing Swami Vivekananda with Dawood Ibrahim”, NDTV, November 06,
2012.

Page | 18
 Bhagyalakshmi, we are not aware," Akbar said referring to the Bhagyalakshmi temple
abutting the historic Charminar.52

52
“Akbaruddin in trouble for hate speech”, Times Of India, Hyderabad, Dec 29, 2012.

Page | 19
 RECENT CASES

2013:

On 18th February, 2013:

Maqbool v. State of Karnataka53

Facts:

The appellants were the accused in a criminal case registered by the Chitaguppa Police for
offences punishable under Sections 143, 295 read with 149 of the Indian Penal Code, 1860
and Section 3(1)(x) of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities)
Act, 1989 on the basis of a written complaint lodged by one Nagshetty, which was duly
signed by 24 others. It was alleged that they are residents of Mustari village and had made a
representation to the Minister of Petroleum and Member of Legislative Council, Rajashekar
and to other authorities for grant of land in order to enable them to establish a Boudh Vihar. It
is their allegation that on 25.2.2004, all the persons who were signatories to the complaint
and who belonged to a Scheduled Caste Community, had installed the Panchasheela and
Dharmachakra flags on forest land. But on the next day, the president of the Grama
Panchayat, his younger brother and his three sons had removed the portraits of Lord Buddha
and Dr. Babasaheb Ambedkar and had set fire to the flags apart from abusing them in foul
language in the name of their caste and sought for action being taken against the appellants.

This is a Criminal Appeal against the judgment dated 18.06.2008 passed by the Presiding
Officer, convicting the appellants / accused for the offence punishable under Section 295
Indian Penal Code, 1860 read with Section 34 IPC and for the offence punishable under
Section 3(1) of the Scheduled Castes and Schedule Tribes (Prevention of Atrocities) Act,
1989 and sentencing them to undergo simple imprisonment for two years and to pay fine of
Rs.10,000/- each for the offence punishable under Section 295 read with 34 of the IPC, in
default, to pay the fine amount, they shall undergo simple imprisonment for six months,
further sentencing them to undergo simple imprisonment for five years and to pay a fine of

53
Criminal Appeal No.734 OF 2008.

Page | 20
Rs.10,000/- each for the offence punishable under Section 3(i)of the SC / ST (PA) Act and in
default of payment of fine, they shall undergo simple imprisonment for six months each.

Issues:

1. Whether the prosecution has proved the guilt of the accused persons beyond
reasonable doubt and proved the fact that on 26.2.2004, at 11.00a.m. the accused
persons with common intention removed the photographs of Bhagwan Buddha and of
Dr.Ambedkar and torn and burnt the flags ?
2. By doing so the appellants insulted the feelings of the community and they did not
stop at that, but abused them and thereby committed the offence punishable under
Section 295 read with 34 IPC and Section 3(1)(x) of the Act?

Arguments on behalf of the Respondents:

There were 4witnesses who have consistently shared the evidence as to the use of foul
language denigrating the caste of the complainants and the fact that they were all present at
the spot and the flags having been uprooted and the portraits having been burnt to the ground,
was already established. Though the complainants believed that the flags had been torn, it
was later discovered that they had been buried in the ground after being removed from the
flag poles. This certainly amounted to denigrating a party, which stood for upliftment of the
Scheduled Castes. Dr. Ambedkar was a political leader, who fought for the rights of the
Scheduled Castes and was a person belonged to a scheduled caste, who himself had embraced
Buddhism and therefore, the portraits of Buddha and Dr. Ambedkar as representing the role
models of the Scheduled Castes and the political party flags of Dr. Ambedkar being
displayed, was only as a banner of the Scheduled Castes and any disrespect shown to those
icons, was certainly a disrespect to the Scheduled Castes and therefore, the court having
imposed the punishment is nominal giving the maximum punishment that was attracted for
the offences, of which there was cogent evidence, on the basis of which, the court has held
that the offences have been proved.

Page | 21
Arguments on behalf of the Appellant:

the land did not belong to the complainants and hence to contend that the appellants had
trespassed on to the land and defied the portraits of lord Buddha and Dr. Ambedkar apart
from burning the flags and using foul language against the caste of the complainants and
belittling them, is not established. In any event, the court has found as a fact that neither the
flags were burnt nor the portraits destroyed. They were found intact. And further, the
appellants having used foul language against the complainants was also established on the
basis of the testimony of the complainants. This, the learned Counsel would submit, is an
unfair finding, especially, since the portraits of Lord Buddha or Dr. Ambedkar and the flags
were representing a political party and Buddhism. There was no indication that they were
representative of any Scheduled Caste, in order that the defying of the portraits or flags
amounted to showing disrespect to a scheduled caste. There is no evidence as to the
appellants having used such language generally against all of them or only against some of
them. It was also contended that this is also in the backdrop of the present appellants
themselves having filed a complaint, but the same has been negated on the ground that the
complaint filed by the complainants in the present case was earlier in point of time and that
the complaint lodged by the present appellants was an after-thought and was a counter-blast
to the complaint that was already filed. The court, therefore, was not justified in holding that
the offences stood established.

Judgement:

The complainants, who were seeking to lay claim over portions of land, is an admitted fact.
The same sought to be occupied by them by planting flags of a political party or the portraits
of Dr. Ambedkar and Buddha, did not by itself demonstrate that the portraits or flags were
representative of the Scheduled Caste community. The allegation that foul language was used
against the complainants is a self-serving allegation. There were no independent eye
witnesses. The signatories to the complaint were acting as a group and apparently, the
intention was to implicate the appellants. There was rivalry between two groups and the
allegation that such foul language was used in the forest land would hardly make it an offence
committed in public, as is a necessary ingredient for committing an offence under the
provisions of the POA Act. Therefore, it can hardly be said that the prosecution had
established its case beyond all reasonable doubt for the court to have convicted and punished

Page | 22
the accused. Accordingly, the appeal was allowed. The judgment of the court was set aside.
The appellants were acquitted.

17 January, 2013
Tanweer Alam alias Tanweer Ahmad v. The State Of Bihar54

The petitioner is the sole named accused of a case which has been registered for offences
under Sections 295 and 295(A) of the Indian Penal Code. He is Steno of Munsif, Banka. It
has been alleged by a Peon of Banka Civil Court that the petitioner has urinated in the temple.
The petitioner has denied the allegation branding him to be a blatant liar. Submission is that
the offence attracts Section 298 of the Indian Penal Code which is bailable. The petitioner has
full regard to all religions. He is a handicapped and a person of advance age of 50 years. He
is in custody since 17.11.2012. Considering the facts and circumstances of the case, it was
ordered that the above named petitioner be released on bail on furnishing bail bond of
Rs.10,000/- with two sureties.

2012:

17 December, 2012
Atique Khan v. The State Of Bihar55

Brief:

The petitioner is apprehending his arrest in a case registered for the offences punishable
under Sections 147, 148, 149, 353, 152, 153(A), 153(A)(A), 295(A), 307, 332, 333, 341, 337,
427, 435 of the Indian Penal Code. The accusation is of throwing the bricks during Ram
Nawami Procession when assault was made and shop was put on fire. It is submitted by
learned counsel for the petitioner that the petitioner was not named in the F.I.R. but
subsequently his name sprang upon scanning the video of the procession. A statement has
been made in paragraph no.12 of the petition that the petitioner has no criminal antecedent.
Considering the aforesaid facts, it was orally ordered that the petitioner, above named, be
released on bail in the event of arrest or surrender before the learned court on furnishing a
bail bond of Rs.10,000/-(Ten Thousand) with two sureties of the like amount.

54
Criminal Miscellaneous No.1528 of 2013.
55
Criminal Miscellaneous No.42996 of 2012.

Page | 23
2011:

26 August, 2011
Star India Private Limited v. Union of India56

Facts:

Star India Private Limited challenges an order dated 3rd/4th March 2010 issued by the
Ministry of Information and Broadcasting, Government of India administering a warning to
Star Plus Channel (SPC) to strictly adhere to the Programme Code prescribed under the Cable
Television Networks (Regulation) Act, 1995 and the Rules framed thereunder.

On 23rd October 2009, the I&B Ministry issued a show cause notice to Star India Pvt. Ltd.
stating that it had come to the notice of the I&B Ministry that the telecast/re-telecast of the
episode of the fictional program titled "Sapna Babul Ka - Bidaai" on 6th October 2009
"contained objectionable and derogatory remarks against Maharishi Valmiki having the effect
of maligning an individual who is part of the social and moral life of large sections of the
country". It was stated in the show cause notice that "the words used in the aforesaid episode
also appear to be contemptuous of religious groups and promote communal attitudes. The
words used in the aforesaid episode also appear to be defamatory and are likely to encourage
violence". SIPL replied to the show cause notice where it was stated that the reference to
Maharishi Valmiki had to be seen in the context of the serial and could not be taken out of
context and analyzed. The programme had to be viewed in totality and then judged whether it
abided by the PC or not. It was stated that the reference to Maharishi Valmiki was purely
with a view to exemplify a person who overcame great odds to achieve a place in history. It
was inter alia stated that an article was published in the Punjab Keshri Jalandhar edition on
11th October 2009 by SIPL in which it had issued an “apology” stating that its intention was
not to offend the Valmiki samaj by the telecast of the said episode of the program in question
and further stated that "we respect Sage Valmiki and derive inspiration from him".

Inter alia, it is mentioned that the Respondent took cognizance of a press report dated 12th
October 2009 in which it was stated that the Chief Minister of Punjab had asked the state
police chief to investigate the incident of “blasphemy” by the SPC with reference to the

56
W. P. (C) 3823/2010.

Page | 24
derogatory remarks towards Maharishi Valmiki in the program in question. The Respondent
then immediately called for the recording which was telecast on 6th October 2009. There was
a conversation between the two actors in which the following dialogue in Hindi is spoken:-

"Alekh says-: kya main aapse kuch pooch sakta hoon mamaji?

Mama-: "haan haan bilkull" . . .

Alekh-: " wo main valmiki ki kahani padh raha tha..mamaji kya sachme wo ek chor se saadhu
baba ban gaye..koi aadmi itna badal sakta hai kya?

Mama smiles as he explains-: valmiki ji ke paas himmat thi.. aatmvishvaas tha beta.. jiske
man me aastha aur pakka vishvaas ho use koi nahi rok sakta..

Here Alekh listening to all of this very carefully and registering in his mind as if he also upto
something like that.....He nods his head and says-: "achha!" samajh gaya…...(he looks at
Sadhana and says) theek hai ab main Sadhna ko phone deta hoon."

Judgement:

The Court observed that When the above scene is viewed in the context of the theme of the
serial and the entire episode, it is difficult to appreciate the conclusion drawn by the
Respondent that it contains any derogatory remarks against Maharishi Valmiki or maligns an
individual or the words used are contemptuous of religious groups or promote communal
attitudes and "are likely to encourage violence". In any event, it is not proper to take one
word out of context to determine if it is derogatory or defamatory. It has to be viewed in the
context and setting of the episode in which the dialogue occurs. The exchange underscores
and extols the virtues of the poet sage who is acknowledged as the author of the Ramayana. It
could hardly be said to malign or slander an individual or a group much less encourage or
incite violence, or contain anything threatening to the maintenance of law and order. For the
aforementioned reasons, the Court finds the impugned warning dated 3rd/4th March 2010
issued by I&B Ministry to the Petitioner to be unsustainable in law. It was, thus, set aside.
The writ petition was allowed.

Page | 25
12 April, 2011
Jayamala v. State Of Kerala57

Facts:

From FIR it is seen that `Devaprashnam' was conducted at Sabarimala Temple from
16.06.2006 to 19.06.2006 in which it was (allegedly) revealed that petitioner, who as per
custom prevailing in that Temple is prohibited from entering the sanctum-sanctorium,
violated the said custom by entering the said place and touching the idol of Lord Ayyappa
and defiled the Temple and thereby committed offence punishable under Sec.295 of the IPC.
It was (allegedly) disclosed in the Devaprashnam that two accused, for making fame for
themselves, contacted petitioner and got a message sent by her by fax that she had done as
above stated and that she is prepared to make penance for that. The said conduct according to
the then President of the Travancore Devaswom Board which controls administration and
management of the Temple was intended to defile the Temple and thereby injure the feelings
of worshipers of Lord Ayyappa. It was also alleged that for the said purpose, accused 1 to 3
entered into a criminal conspiracy and committed offences under Secs.295 and 120B of the
IPC.

Judgement is not made yet.

2010:

6 April, 2010
Prasad Jacob (Us Citizen) v. State Of Kerala58

Brief:

One P.J. Samkutty (Sam Jacob) of Punnakkal family in Chungappara in Pathanamthitta

Ditrict having the pen name Shamu Coimbatore was the author of a book titled Chinvad
Palam (the invisible bridge to heaven ). Samkutty referred to above died on 7-3- 2007. A1 to
A3 are his brothers and A4 is his son. They are employed abroad. A5 is a Pastor who was

57
OP(Crl.).No. 1332 of 2011(Q).
58
Crl.Rev.Pet.No. 1128 of 2010.

Page | 26
residing in the house of the deceased. All the five accused persons belong to the Christian
Community. On 22-3-2010 from 9.30 a.m. to 2.30 p.m. the accused persons were attending
the funeral of deceased Samkutty at the residence of A2 at Chungappara. At about 4 p.m. on
22-3-2010 copies of Chinvad Palam authored by the deceased were circulated among the
Christians who had attended the funeral. The aforesaid book contains imputations against
Prophet Muhammed (Muhammed Nabi) depicting him as a womaniser who kept concubines
besides his wives for sexual satiation. The Book makes reference to the law regarding the
sharing of plundered goods by declaring that 1/5th of the booty should go to Allah and his
messengers and the rest should go to the plunders. There are citations in the said book
sufficient to incite communal feelings and to maliciously insult the religious feelings of the
Muslims and promoting enmity between two classes. Ninety copies of the book were seized
from an Innova Car parked there belonging to A3 and in which the accused persons had come
to Chungathara. Kochumuhammed Rawther and who is the President of the Muslim Juma
Ath, Kottangal gave the first information statement before the Officer-in-charge of
Perumpetty Police Station to the effect that by circulating copies of the above book the
accused persons had promoted feelings of disharmony, enmity, hatred and ill-will between
different classes on the ground of religion or race.

Case was registered under Sections 143, 147, 153 A and 295 A read with Sec. 149 I.P.C.
Section 505 (2) and (3) I.P.C. and Section 14 of the Press and Registration of Books Act,
1867 were also added. All the 5 accused were arrested and were subsequently granted bail on
some conditions. At about 6.30 p.m. on 24-3-2010 infuriated by the imputations made against
Prophet Mohammed in the book Chinvad Palam circulated in that area, certain Muslims of
Chungappara (which is an area thickly populated by Muslims) unleashed violence resulting in
the Perumpetty Police registering a case for offences punishable under Sections 143, 147, 148
and 427 read with Sec. 149 I.P.C. The Book Shop belonging to the deceased who was the
author of the book was attacked by the Muslims who resorted to vandalism.

Police searched for the accused in the houses of their relatives to direct the accused to appear
before the Investigating Officer as per one of the conditions of bail, but they were nowhere
found. The counsel appearing for the accused were contacted and the accused were directed
to appear before the Investigating Officer at 10 a.m. on 26-3-2010. But the accused did not
appear as directed.

Page | 27
Accordingly, their bail order was set aside and the Court cancelled the bail granted to the
accused under Sec. 439 (2) Cr.P.C. And their petition against this order in the Hon’ble
Supreme Court was also dismissed.

Page | 28
2009:

19 August, 2009
Bipin Kumar Singh and Another v. State Of Jharkhand59

Facts:

The petitioners and his family members made it known to the public of the locality by
declaring that Goddess Chinna Mastika has been so much pleased that she would be showing
her hand everyday at the time of 'Aarti'. Such propaganda was made with an intention to have
more gathering so that they may have more money which the people would be offering to the
Goddess. Further allegation was that the accused persons used to display for a fraction of
second an artificial hand made up of plastic and claimed to be the real Lord of the Goddess.
Thus, by adopting such means, they cheated the public at large. On such allegation, case was
instituted under sections 298, 420 and 120B of the Indian Penal Code.

Judgement:

Here, in the instant case, the allegation is that the petitioners declared to the public that they
will be showing hand of the Goddess 'Chinna Mastika'. This application even if is accepted to
be true, one would wonder as to how the said act has wounded the religious feelings of the
Hindus and, therefore, allegation never attracts offence under section 298 of the Indian Penal
Code and hence, that part of the order where the court refused to discharge the petitioner
from offence under section 298 of the Indian Penal Code was hereby set aside.

However, in the facts and circumstances, there has been prima facie material for framing
charge under section 420 of the Indian Penal Code as it is the case of the prosecution that the
petitioners with the intention to have more offering by the gathering made it declared to the
general public that the 'Goddess Chinna Mastika' would be showing her hand and by that act,
the petitioners appear to have dishonestly induced general public to deliver the property by
way of offering cheated to the general public and thereby the trial court has rightly come to
the conclusion that there appears to be ample material for framing charge against the
petitioners under section 420 of the Indian Penal Code.

59
W.P. (Cr.) No.232 of 2008.

Page | 29
2005:

22 September, 2005
Sujato Bhadra v. State Of West Bengal60

Facts:

Before proceeding further, we must note the relevant facts relating the book "Dwikhandita"
written by Taslima Narseen of Bangladesh which was proscribed in India, these are:

1. That the book "Dwikhandita" is the third volume of the autobiographical trilogy of the
author;
2. That she, herself a woman, had written the alleged offending part in the context of the
status of women in the society in Bangladesh emanating from adoption of Islam as a
State religion;
3. That she was expressing her own vie and political thoughts/philosophy in relation to
the Constitution of Bangladesh of which secularism was one of its salient features
since deviated from subsequently, by the State by adoption of Islam as a State religion
doing away with the secularism to suit the particular purpose of the particular ruler;
4. That the author has been in exile from her own motherland for some of her earlier
writings that she understood to be the result of religious fundamentalism against
which she was unable to obtain any protection from the State machinery in her own
motherland;
5. That she was attempting to expose the politico religious situation affecting the society
as a whole pushing the position of women into an absolute insolent and abominable
existence dominated by the male counterparts in the name of religion aided and
abated by the State machinery guided by the State religion;
6. That she was attempting to strike hard to deliver a shock in order to awake the
sleeping/dormant conscience of the people of Bangladesh to restore secular
democracy initially subscribed by the Constitution of Bangladesh and eradicate the
maladies of the society and for paving the ways for emancipation of the women and
the society;

60
(2005) 3 CALLT 436 HC.

Page | 30
 7. That she had pointed out to the darkness befalling the State of Bangladesh and the
society on account of religious belief by pointing out the debilities and ill effects
inherent in the religious belief opposed to the true religion preached by Islam, a
religion of humanity and mankind.

The intention of the author, who herself profess the same religion, has to be gathered from the
context of the book itself which is argued to be an eye-opener pointing out her fingers to the
inconsistency in the Holy Scriptures, relying on history and other authentic biographies of the
Holy Prophet and the Holy Koran and other Holy Scriptures. It is also to be noted that the
passage was written in the context of the position of women in Bangladesh being appraised in
the light of adoption of the State religion at the cost of secularism and democracy with
different standard for women and men. That the author is a feminist attempting to emancipate
the feminine of her own country and to secure for them a respectable position in the society
in Bangladesh and eager to the restoration of democracy and secularism opposed to the
religious fundamentalism in Bangladesh so as to enable her to come back to her own
motherland, the urge whereof is apparent in volumes from her writings. Her entire effort in
the book is directed towards the situation in Bangladesh alone. The book was published by a
publisher in West Bengal/India in Bengali language which was proscribed by the
Government of West Bengal under Section 95 of the Cr. PC read with Section 295A of the
IPC.

The petitioner filed the petition under Section 96 of the Cr. PC registered to challenge the
said notification regarding forfeiture of the book in question as under the provision of law,
Section 96 was the enabling section for any aggrieved party, having any interest in the book
in question to challenge a notice of forfeiture made under Section 95 of the Cr. PC.

Judgement:

The author did not pen down the book which is written in the circumstances and the
background of the country of her origin - with deliberate and malicious intention of outraging
the religious feelings of any class of Citizen of India and thus, the book cannot be brought
under the ambit of Section 295A. Therefore, in the instant case Section 295A is wholly
inapplicable. In addition it reiterated that the theme of the book is not any religion nor the
role of its Prophet, rather the writer laments and condemns the hapless condition of women in
a male dominated patriarchal society in the country of her origin which is theocratic.

Page | 31
Also, there were no reports of any communal trouble, tension or disharmony of any nature
among various communities in India after the publication of the book in November, 2003.
Subsequently, it had gone in for a reprint in the same month. This goes to show that the
citizens of this country and especially the followers of Islam whose sentiments, it is alleged
the book had hurt, are responsible and mature enough to examine the book in the right
perspective, ignore any comments, whatsoever, in a book by a single individual on their
Prophet whom they hold in highest reverence.

Thus, as the book written in the context of author's country of origin does not deliberately
and maliciously intend to outrage the religious feelings of any community of India and
since the theme of the book is the hapless condition of women in that country, in our view, it
does not come within the ambit of Section 295A of the IPC and, therefore, the order of
forfeiture under Section 95 of the Code of Criminal Procedure, 1973 was unwarranted,
cannot be sustained and was, therefore, set aside.

Page | 32
 CONCLUSION

Hinduism, India’s dominant religion, does not have the concept of blasphemy. The Indian
Penal Code does punish “hate speech” (insults or attempts to insult the religion or the
religious beliefs of any citizen with deliberate and malicious intention to outrage their
religious feelings). These laws are applied to all religions including Hinduism, Sikhism,
Christianity and Islam.

When drops of water began to fall from the feet of a crucifix in 2012, believers thought that it
had holy powers. Sanal Edamaruku, president of the Indian Rationalist Association,
suggested that the source of the water to be leaking toilet drainage. “It’s a case of miracle-
mongering,” Edamaruku told AFP from his home in New Delhi. “Any kind of miracle-
mongering is ultimately to get money and power.” Accusing him of spreading “anti-Catholic
venom” during televised debates on the crucifix, outraged religious groups in Mumbai have
filed police complaints that could see Edamaruku jailed for up to three years under India’s
blasphemy law. Now Edamaruku welcomes the moves against him as “an opportunity, not a
thing to be afraid of”, he said, and is challenging India’s blasphemy law.

The legislation bans “deliberate and malicious acts intended to outrage religious feelings of
any class by insulting its religion or religious beliefs”, a rule Edamaruku believes runs
counter to freedom of expression.

The films of Deepa Mehta61

Indian-born film-maker, Deepa Mehta, now living in Canada, is best known for her
trilogy Fire,

61
http://kayehargreaves1.wordpress.com/legal-issues/do-we-really-have-freedom-of-expression/722-2.

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Earth and Water. Fire shows two young women trapped in loveless marriages who turn to
each other for solace and become lovers. The film was initially passed by the Indian censors,
but screenings brought violent protests. Hindu extremists in particular, caused the film to be
withdrawn. Deepa Mehta and her supporters demonstrated for freedom of expression. One
Hindu critic objected to the main characters being given Hindu names, and said he would
withdraw his objection if they had Muslim names. When Mehta was about to start
filming Water, the third film in the trilogy, she learned that 2,000 protesters had stormed the
studio, destroying and burning the main film set and throwing the remnants into the Ganges.
Cinemas were also burnt down by Hindu protesters. Water was eventually filmed in Sri
Lanka. Deepat Mehta’s most recent film, an adaptation of Salman Rushdie’s Midnight’s
Children, (a Booker Prize-winning novel about British colonial India and Partition), will be
released this year. It was filmed in Sri Lanka, in the utmost secrecy and under false names, in
an effort to keep the fundamentalists at bay. “He’s got the Muslims,” says Mehta, wryly
assessing the field of people who might want to stop this film. “And I’ve got the Hindus.”62
Two weeks into the shoot, Mehta’s husband and producer, David Hamilton, received notice
from the government saying
permission to film had been
withdrawn after displeasure was
expressed by Iran. Mehta made a
personal appeal to the Sri Lankan
Prime Minister, and the filming
continued. The BBC tried to
make Midnight’s Children into a
five-part miniseries in 1997, but the
government withdrew
permission for that production after Muslim protests.

62
http://www.theglobeandmail.com/news/arts/movies/deepa-mehta-films-rushdies-midnights-
children/article2021293.

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 Bibliography

 Basu’s INDIAN PENAL CODE, 10th ed., Ashok Law House, New
Delhi.
 Dr. Hari Singh Gour, PENAL LAW OF INDIA, 11th ed., Vol. 3, Law
Publishers India Pvt. Ltd.
 K.D. Gaur, CRIMINAL LAW: CASES AND MATERIALS, 6th ed.,
Lexis Nexis Butterworths.
 K.I. Vibhute, P.S.A. Pillai’s CRIMINAL LAW, 10th ed., Lexis Nexis
Butterworths.
 Faculty of Law, University of Delhi, CRIMINAL LAW-II, July 2011.

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