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IPC Section 295 : An analysis

Section 295(A) says that Deliberate and malicious acts, intended to outrage religious feelings of 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.

Why is it in news?

TV Actor Kiku Sharda, who mimicked a scene from a film starring Dera Sacha Sauda chief Gurmeet Ram Rahim Singh while performing in a popular comedy show, was arrested recently under Section 295A of the Indian Penal Code (IPC) for outraging the “religious feelings” of his followers and also Hindu Mahasabha leader Kamlesh Tiwari was also booked under it, after he made offensive remarks on the prophet of Islam.

Arguments in favour of this section:

• Such a provision has its utility as a safety valve to preserve harmony in a multi-religious society by sanctioning penal action against those attempting to disturb the peace.

Arguments against the section:

• the broad ambit of section 295A - which is non-bail-able and does not recognize even truth as a defense  have made it a powerful tool in the hands of the intolerant lot. 

• IPC already has several other provisions to deal with those attempting to breach communal harmony, it may be wise to consider watering down or doing away with Section 295A altogether, particularly when unjustified invocation of the penal provision only sparks fears of aggravating communal tension. 

• Section 295, which has been the Indian version of anti-blasphemy law since its introduction during the colonial rule, continues even after blasphemy being abolished in the UK. 

• It has chilling effect on freedom of speech and expression.

• Though Section 295A envisages malicious intent behind the offending act and the procedural law mandates the need for sanction from government for prosecution, the ineffectiveness of the safeguards can be gauged from the fact that they could not save even a stand-up comedian from arrest immediately after a complaint.

• Section 295A deters even honest attempts to fight against superstition and prejudices, the broad ambit of the offence had sometimes even put the government and courts in difficult situations. 

• The wide ambit of Section 295A has not spared even pure artistic and literary expressions and has often startled even the votaries of the provision with unintended consequences. The biggest example of which is imposition of this section on MF Hussein’s Paintings.

Hurdles in repealing the law:

With respect to repeal of Section 295A, however, there is a significant problem: in 1957, in, a five-judge bench of the Supreme Court upheld its constitutionality. This means that, if the Supreme Court were to change its mind, it would need a bench of at least seven judges to overrule Ramji Lal Modi, and strike down the law. Procedurally, this would require the challengers to 295A to first convince a two-judge bench (before which any petition originally goes) that there are sufficient reasons for doubting the correctness of Ramji Lal Modi. If convinced, this two-judge bench would need to refer the question to a five-judge bench which, in turn (if convinced), would have to refer it to a seven-judge bench, which would finally hear the case on merits.

Conclusion:

Thus arguments given above prove that section 295(A) in practice had a chilling effect on free speech in independent India. This colonial legislation therefore needs to be repealed, However as mentioned above there are judicial hurdles in repealing it, therefore if it is difficult to repeal the section, In short run the centre should come out with clear cut guidelines according to which  the application of the section should be limited to situations where there was a degree of proximity between the prescribed speech, and the possibility of public disorder (for instance, inciting an armed mob to destroy public property would qualify, but writing an article in a magazine in defense of the Naxalite movement would not).

 

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