Understanding the ICC provisions relating to religion-related offenses
FEROZ PATHAN & NANCY GARG
India is a secular democratic republic as stated in the preamble of the Indian Constitution. The right to freedom of religion is guaranteed to all persons here with express provisions under Articles 25-30. The State promotes and guarantees the equality of all religions to defend secularism which is a basic structure of the constitution.
The Supreme Court of India in SR Bommai v. Union of India AIR 1994 SC 1918 established the fact that India was secular since the formation of the republic. Everyone has the right to freedom of conscience and the right to freely profess, practice and propagate their religion.
Unlike the American doctrine of secularism, Indian secularism does not completely separate the state from religion. The state is neither anti-religious nor pro-religious; it is equidistant from all religions. The state, however, tries to intervene in religious activities sometimes with the spirit of administering justice to people who believe in a particular religion to put them on the same level as other religious believers in social life. State intervention in Haj and Kumbhmela activities proves that the state treats all religions equally.
Swami Vivekanand, while elaborating on religion, had said, “Religion is neither a word nor a doctrine. His act. It is being and becoming. It is the whole soul changed into what is believed”. The framers of the constitution used the word “religion” and not “dharma”, although these two words are often used interchangeably.
Although religion is seen as a personal matter, the religious sensibilities of people of different faiths are intentionally and unintentionally eroded in the ebb and flow of life. The State must therefore intervene to rectify and sanction acts intended to outrage religious feelings. If left unchecked, these deviant actions can undermine law and order and affect public peace. The Indian Penal Code of 1860 contains criminal provisions on religion-related offenses in the fifteenth chapter. Sections 295 to 298 deal with these provisions.
Section 295 provides penalties for injuring or desecrating a place of worship with intent to insult the religion of any class. According to this article, if a person, whether a worshiper or not, destroys, damages or defiles a place of worship or a sacred object with the intention of insulting the religion is punishable. The word “intent” in this section refers to the “Mens Rea”, which is an essential requirement here. It is pertinent to note that “unintentional acts” of destruction committed without knowing that a class of people (not an individual) is likely to consider it an insult to their religion will not attract this provision.
Lawmakers have used the word “defile” u/s 295 in addition to destruction and damage which has broader connotations. To defile here means not only to make filthy or impure, but to ritually and ceremoniously impure an object or place of worship. The word defilement refers to the “pollution” or “deterioration” of the intrinsically sacred character of the sacred object or place of worship. It refers to the defilement of inanimate objects or places only such as temples, mosques, churches, monasteries or objects representing gods and held sacred. The Bible, Quran, Geeta, Guru Granth Sahib are also sacred objects in this section.
In S.Veerabadran Chettiar v EVRamaswami Naicker, AIR 1958 SC 1032:1958 Scream LJ 1565, Tamil social reformer EV Ramaswamy Naicker had smashed an idol of Lord Ganesha in public view at Tiruchirapalli town hall in protest against the caste system . Chettiar was offended by this act and he filed a complaint against Naicker u/s 295 and 295 A. The magistrate had dismissed the petition on the first charge stating that just because the mud figure looked like Lord Ganesha it did not cannot become a “sacred object”.
The offense u/s 295A was, however, established against Naicker, but the law required government sanction before proceedings were commenced and this charge was also later dropped against him. The High Court had also ruled that only an idol in a temple or an idol in a religious procession could be considered a ‘sacred object’ under Section 295 and the appeal was dismissed.
The Supreme Court held that an object need not have been worshiped for it to be sacred. The feelings, beliefs and emotions attached to the object and the place of worship make it sacred, whatever its rationality. The Supreme Court had castigated the lower courts for grossly misinterpreting Section 295. The appeal was, however, dismissed by the CJI Bench, BPSinha and Judge Bhuvaneshwar P., stating that the case had become obsolete since five years had passed.
The u/s 295 offense is cognizable, non-bailable, non-aggravating, triable by magistrate and is punishable by imprisonment for up to two years or fine or penalties of them.
Section 295-A was incorporated into the IPC, 1860 by the Criminal Law Amendment Act 1927 following the post Rajpaul uproar against the Emperor commonly referred to as the “Rangila Rasul Affair”. In Kalicharan Sharma v. Emperor, 1927 SCC Online All 184:AIR 1927 All 649:ILR (1927), it was held that libelous and bad taste remarks against the religion or its founder could be prosecuted under this section.
Section 295 A acts as an anti-blasphemy law to prevent insult to religions; it facilitates the maintenance of public order in a heterogeneous society like India.
The main ingredient of Section 153 A is malicious and deliberate acts aimed at outraging the religious feelings of any class by insulting its religion. Both successful and unsuccessful attempts are covered in this section. This article only punishes acts or attempts to insult the religion or religious beliefs of any class that are deliberate and malicious.
The words “outrage religious sentiments” in this section connote “aggravated acts of insult” and not fleeting sarcastic and euphemistic statements. Such an insult can be made either by spoken or written words or by visible signs or representations.
The offense under this section is punishable by bail, not liable to be aggravated, punishable by trial before a first class magistrate and punishable by imprisonment for up to three years or a fine or both.
Section 296 deals with the disruption of a religious gathering. Anyone who deliberately disturbs an assembly that engages in worship or religious ceremonies attracts punishment here. The assembly must, however, be legally bound in this act, that is to say, it must do what it has the right to do. The offense under this section is prosecutable, bailable, non-aggravating, trialable by any magistrate and punishable by imprisonment for up to one year or by fine or both.
S.297 treats intentional intrusions into burial places, places of worship or any burial place, or places of funeral rites, or repositories of dead remains as an offence. Offering indignity to a human corpse or causing trouble to anyone assembled for the performance of funeral ceremonies also attracts penal provisions.
Trespass here involves not only criminal trespassing, but also an ordinary act of trespassing with the intent and knowledge specified in S.441. Such intrusion must be committed with the intent to injure the feelings of any person, or to insult the religion of any person, or with the knowledge that the feelings of any person are likely to be injured, or that the religion of anyone is liable to be insulted in this way. Section 297 is an extension of the principle set out in section 295 to places that are treated as sacred. The term trespass here refers to an unjustifiable and unauthorized trespass on property in the possession of another. To offer indignity to a corpse means to treat a corpse with humiliation or disgrace, although indignity was not expressly defined in the IPC.
The offense under this section is prosecutable, bailable, non-aggravating, trialable by any magistrate and punishable by imprisonment for up to one year or by fine or both.
Section 298 makes it a punishable offense to speak words, make sounds when hearing a person, or make gestures in sight of a person or place with the willful intent to injure the religious feelings of a person.
This section deals only with oral statements and not with written statements in any form. The offense under this section is unknowable, bailable, compoundable, justifiable by any magistrate and punishable by imprisonment for up to one year or a fine or both.
Religion must lead to stability, peace and progress for humanity and must not be abused under the guise of fundamental rights. The legislator has therefore in his rational and pragmatic conscience provided for these penal provisions for offenses related to religion. It is important for a country where religious freedom is changing in unexpected ways to adhere to these provisions which have been formulated to protect and uphold fundamental rights.
(The authors are aspiring lawyers in Delhi)