A COMPARATIVE STUDY OF BLASPHEMY LAWS ININDIA AND PAKISTAN
INTRODUCTION
From time to time, the issue of irreverence to God or other things of sacred value ascends to the surface and stands out as truly newsworthy because of its encroachment upon the right to free speech. It is disheartening that a few nations have willingly volunteered to assume the supreme power and go about as moral adjudicators by examining individuals’ opportunity to freedom of speech and expression. Moreover, the role of the state as a moral guardian acting on God’s behalf is another matter of concern which needs necessary revision.
Blasphemy, in common terms, is defined as the act of insulting the God or other entities of sacred value. While we happen to live in a 21st century modern state where blasphemy law should not have had find a place, these laws still exist in many countries. As many as thirteen countries have death penalty as a punishment for blasphemy laws. According to a recent report, 69 countries have outlawed blasphemy with Scotland being the latest country.
Blasphemy laws are problematic because these offences are largely vague and subjective. Both outrage and insults are inexact concepts which create legal uncertainty and encourage an unhelpful degree of subjectivity. Although the term “blasphemy” cannot be directly found in the Indian Penal Code but it does have a provision that is a variant of blasphemy law—namely, section 295A of Chapter XV of the Code, “Offences Relating to Religion,” Similarly, Pakistan too has outlawed Blasphemy but much more severely than its neighbour India.
BLASPHEMY IN INDIA
Tracing the History-
In 1924 Mahashay Rajpal, a publisher from Lahore, printed a satire on the Prophet’s domestic life titled ‘Rangila Rasul’. The book’s title translated literally into English meant the colourful Prophet, but in Urdu and Hindi implied an insinuation of sexual dalliance. The government brought charges against Rajpal under Section 153 A of the Indian Penal Code, which criminalized ‘attempts to promote feelings of enmity or hatred between different classes.’ After years trial, the High Court acquitted Rajpal in May 1927, finding that there was no proof that its purpose was to promote feelings of enmity. Soon after, in September 1927, the Indian Legislative Assembly approved an amendment to the Penal Code, Section 295A. This marked the incorporation of an anti-blasphemy law in India.
Contrary to Section 153 A, Section 295A criminalized any expression made with ‘deliberate and malicious intentions of outraging the religious feelings of any class’ whereas the former proscribed religious offences only when they promoted enmity between communities.
Relevant Section
The only section which is largely considered pertinent to Anti-blasphemy in the context of India is S. 295A of the Indian Penal Code. It is a part of chapter 15 ‘Of Offences Relating to Religion’ of the Indian Penal Code, 1860. The section states 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.”
Analysis
The constitutional validity of this section was debated on the issue that whether such law violated the freedom of speech and expression. This controversy was finally resolved in Ramji Lal Modi v. State of U.P. by the Supreme Court of India.
In Ramjilal Modi v. State of U.P., the editor of a cow protection magazine had been booked under Section 295A and he took the case before the Supreme Court of the India, while challenging the constitutional of the section itself he argued that this section is not in accordance to the article 19(1)(a) of the constitution. The court in this case held that the exception 19(2) in the interest of public is very wide. This allows the state to put the restriction on speech which threatens the public order is reasonable restriction and it can be imposed.
Although it was intended to keep careless statements or statements without any deliberate malicious intention out of the scope of S.295A , it’s not the case. High Courts have held that it is not necessary to prove ill-will or enmity on the part of the accused. This means to say that had the act was been voluntarily and without any lawful excuse, a presumption of malice can be made. Another very serious problem that exists with reference to this section is that truth of any statement made or act done is not considered as a defense.
Also, there’s a lot of subjectivity and ambiguity in such a law, taking which into consideration an individual might not exercise his right to freedom of speech and expression. Furthermore, the world ‘religion’ does not have a fixed definition and can be perceived differently by different people and there is a multiplicity of opinions as to what would be the standard for an expression to be considered as blasphemous. There is no exact definition as to what would be blasphemous. One of the reasons for this lacuna is, the legislature does not take into account that religions are further segregated into factions/cults or sects which usually differ from each other on some major ideologies, for instance Hindus worship Rama as well as Ravana or the Lingayats. One such faction might consider an expression to be blasphemous while the other faction may disagree.
What is more shocking is, in a secular country like India, instead of making these laws less severe, State cabinets are proposing new and more severe laws against blasphemy. The Punjab Cabinet seeks to introduce in the Indian Penal Code (IPC) a new Section (295AA) which states, “Whoever causes injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwad Gita, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punishable with imprisonment for life.”
There does not seem to be any need for such amendment while a law already exists on the same lines throughout India. Now, damage to holy books can attract a mandatory life sentence in Punjab, while other insults can attract up to three years. To put it bluntly, insulting a god or Prophet could land one in jail, but burning or defacing a holy book would land you in prison for life.
BLASPHEMY IN PAKISTAN
Tracing the History
In many countries, blasphemy laws were inherited from colonizing powers. It took the US 150 years to undo this law in 1952. In the UK itself, blasphemy laws were not abolished until 2008. Similarly, offences against religion in Pakistan are partly rooted in laws promulgated during British colonial rule with considerable sections of the Indian Penal Code (IPC), 1860, that became Pakistan Penal Code (PPC) after 1947 Partition. During colonial rule, four provisions were introduced in 1860. The justification for introducing these provisions was maintenance of law and order and avoiding communal violence between Hindus and Muslims.
In 1924, a pamphlet titled ‘Rangila Rasool’ (The Promiscuous Prophet) by an anonymous author caused angry responses. The publisher, Mahashe Rajpal, was arrested but acquitted by the Punjab High Court in 1927 which followed widespread agitation, and introduction of section 295-A in 1927 (ICJ Report 2015).
Among justifications of these laws were the sectarian tensions that claimed many lives during 1980s. While the British-introduced blasphemy provisions applied to all religions, Zia’s amendments were aimed at protecting only beliefs of Muslim majority. Data shows that Zia’s expansion of these laws actually resulted in a rise in blasphemy incidences. For almost a century between 1851 to 1947 (British rule), there were only seven reported incidents of blasphemy. In the next forty years 1947-86, the number of blasphemy cases filed in the courts was only eight. From 1986 to 2015, around 1464 cases have been registered many of them filed on petty charges. Of all the accused 729 belong to Muslim religion, a fact that highlights the deep rooted inter-sectarian conflict and tensions within Islamic communities.
Amendments
Section 298-A (use of derogatory remarks in respect of holy personages) and Section 295-B (defiling the Quran) were introduced in 1980 and 1982 respectively. Instituted in 1984, Sections 298-B and 298-C made it an offence for members of the minority Ahmadiyya Muslim community to identify as Muslims, use religious descriptions or titles used by Muslims for religious places and figures, or preach or propagate their faith thereby depriving members of a religious community of their rights to religious belief and practice. Lastly, Section 295-C was introduced in 1986.
Analysis
The current blasphemy laws in Pakistan are contained in Chapter XV of the Pakistan Penal Code (PPC), which was originally enacted by the British in 1860 during the colonial era and amended from time to time. Chapter XI is titled “Of offences relating to religion” and currently contains 10 sections. As originally enacted in 1860, Chapter XV had only four sections, Sections 295 to 298. The Indian Law Commission Report of 1837, which drafted the Penal Code for India eventually enacted in 1860, had justified Chapter XV on the grounds that “the religion may be false but the pain which such insults give to the professors of that religion is real” and that “there is perhaps no country [other than India] in which the Government has so much to apprehend from religious excitement among the people”. The four original sections therefore protected all religions in India from defilement of their places of worship, disturbance of their religious assemblies, defilement of their places of burial and wounding of their religious feelings.
Of the six laws pertaining to blasphemy offences, the one that has the greatest negative impact and fallout is Section 295-C of the Pakistan Penal Code. This provision, as interpreted by the Courts, is the only one of the blasphemy laws that prescribes a mandatory death penalty, with no room whatsoever for a pardon, or even a lighter sentence.
Other sections inserted under the reign of General Zia-ul-Haq included one (Sec. 298-A) that would sanction the use of “derogatory remarks, etc., in respect of holy personages”. This has been one of the excuses to persecute the Shia minority that disagrees with the majoritarian Sunni Islam on the role and status of the companions of Prophet Muhammad.
Perhaps the most damning was the addition of Sections 298-B and 298-C that specifically targeted the Ahmadi community and prohibited them from portraying themselves as Muslims. For instance, section 298-C states that “Any person of the Qadiani group or the Lahori group (who call themselves ‘Ahmadis’ or by any other name), who directly or indirectly, poses as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith … shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine”. The Ahmadis consider themselves to be Muslims and believe in the prophethood of a late 19th-century Indian religious reformer, Mirza Ghulam Ahmad Qadiani, which is heresy according to most other sects of Islam, who believe in the finality of Muhammad’s Prophethood. Even before the introduction of Sections 298-B and 298-C in the Penal Code, Ahmadis had been officially declared non-Muslims in 1974 by the Constitution of Pakistan itself. Three of the new sections were aimed at protecting Islam, its revered figures and scriptures from blasphemy. The other two provisions expressly sanctioned the outright suppression, if not persecution, of Ahmadis. While punishment is up to three years in prison and a fine for anti-Ahmadi provisions and for defiling the sacred names of holy persons of Islam, defilement of the Quran entails an inflexible punishment of life imprisonment and defilement of the Prophet’s name is punishable by death. While defilement of the Quran has to be “wilful” to be considered an offence, there is no requirement of intention when it comes to defilement of the sacred name of Prophet Muhammad and his relatives and friends.
Flaws
Recent research has also revealed that blasphemy laws are often invoked to settle personal disputes, especially those related to property. At least 40 per cent of cases where courts did not sentence the accused were related to private disputes. The International Commission of Jurists (ICJ) has pointed out that in addition to Pakistan’s blasphemy laws being poorly worded, the problems in Pakistan’s legal system create conditions that place those accused of blasphemy at a major disadvantage. Section 295-C of the PPC defines the elements of offence in a manner that is extremely vague, leaving cases open to subjective interpretation. They also make no reference to the potential offender’s psychological state, mental health or intention. An analysis of case law on Pakistan’s blasphemy laws by the ICJ found that out of 25 cases reviewed, mala fides were found in the complaints and testimonies of the witnesses in 15 cases.
CONCLUSION
We should collectively work towards making the world a free and safe place for ideas where one kind of thought shall not be suppressed either by state or by society so that the society is able to reach its maximum potential. In my views, Anti-Blasphemy laws don’t find a place in a secular country like India, nor does the Islamic Republic of Pakistan requires such brutal laws, which doesn’t find any direct or indirect mention even in the Holy Quran.
Pakistan which has been severely notorious in regard to Minorities persecution and blasphemy laws reveals a bad state of affairs as has been discussed in the project. India’s picture with the increase in instances of lynches mobs taking over as cow vigilantes and rise in Extreme Wing Elements in mainstream politics provides an equally worrisome trend.
More importantly, the Government of Pakistan should define what actually constitutes ‘blasphemy’ as under the vague legal language, its interpretation is open for exploitation and given sectarian and denominational divides, can easily be framed against opposite groups and minorities. In the long run, efforts should be made to educate people about these laws especially through progressive interpretations of Muslim scholars who consider these laws as anti-Islamic and counterproductive so they can be done away with. A considerable majority of the people support the idea that people should be punished to insult Islam, but there is inadequate knowledge of what the religious books actually say. Many people support the blasphemy law, which was implemented by the military Dictator General Zia-Ul-Haq and is considered direct adaption from the Quran.
On blasphemy laws, the governments also need to streamline and standardise the procedures to make evidence and intent as an integral criterion for blasphemy allegations. It should remain the prerogative of judiciary to interpret blasphemy accusations with a strict criterion for intent and evidence as well as constitution of blasphemy. The criteria for registration of a blasphemy case by the police should also be standardized and put under high-level police officials.
Today, Social Media platforms are widely witnessing Blasphemy and related issues. The Social Media Groups need to adopt a criterion that distinguishes between human rights activists and those propagating violence on social media. It should employ country or regional experts that can help identify and define inappropriate content in view of on ground realities and local laws.
I conclude this piece by quoting the famous English Writer, Evelyn Beatrice Hall– I do not agree with what you have to say, but I’ll defend to the death your right to say it.
-Adrut Ashish