OFFENCES AGA AGAINST INST RELIGION Law of Crimes
Submitted by: BHARAT RAVIKUMAR 935 BA.LLB. (Hons.) 3d Semeste
Contents
Page No. Introduction
Crime Criminal Law O#ences against Religion Introduction %e&lement of 'lace of wors(i' or o)*ects of +eneration ,S. -/0 -$0 IPC12 Outraging or wounding religious religious feelings of an6 class ,S. -/A and -30 IPC1 %istur)ing a religious assem)l6 ,S. -"0 IPC1 O#ences against Religion in News Recent Cases Conclusion 8i)liogra'(6
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Contents
Page No. Introduction
Crime Criminal Law O#ences against Religion Introduction %e&lement of 'lace of wors(i' or o)*ects of +eneration ,S. -/0 -$0 IPC12 Outraging or wounding religious religious feelings of an6 class ,S. -/A and -30 IPC1 %istur)ing a religious assem)l6 ,S. -"0 IPC1 O#ences against Religion in News Recent Cases Conclusion 8i)liogra'(6
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INTRODUCTION CRIME WHAT IS A CRIME? We must answer this question at the outset. In order to answer this question we must know first, what is law e!ause the two questions are !losel" inter#related? Traditionall", we know a law to e a !ommand en$oinin% a !ourse of !ondu!t. The !ommand ma" e of a so&erei%n or of 'oliti!al su'eriors to the 'oliti!al inferiors( or it ma" e the !ommand of a le%all" !onstituted od" or a le%islation emanatin% from a dul" !onstituted le%i le%isla slatu ture re to all all the the mem memers ers of the the so!ie so!iet" t".. A !rime !rime ma" ma", ther therefo efore, re, e an a!t of disoedien! disoedien!ee to su!h a law foriddin% foriddin% or !ommandin% !ommandin% it. )ut then disoedien!e disoedien!e of all laws ma" not e a !rime, for instan!e, disoedien!e of !i&il laws or laws of inheritan!e or !ontra!ts. Therefore, a !rime would mean somethin% more than a mere disoedien!e to a law, *it means an a!t whi!h is oth foridden " law and re&oltin% to the moral sentiments of the so!iet".* so!iet".* Thus roer" or murder would e a !rime, e!ause e!ause the" are re&oltin% re&oltin% to the moral sentiments of the so!iet", ut a disoedien!e of the re&enue laws or the laws of !ontra!t would not !onstitute a !rime. The !ontent of !rime !han%es from time to time in the same !ountr" and from !ountr" to !ountr" at the same time e!ause it is !onditioned " the moral &alue a''ro&ed of " a 'arti!ular so!iet" so!i et" in a 'arti!ular a%e in a 'arti!ular !ountr". A !rime of "esterda" ma" e!ome a &irtue tomorrow and so also a &irtue of "esterda" ma" e!ome a !rime tomorrow. WHAT IS THE TEST of !riminalit" or !riminal liailit"? The true test of !riminal liailit" liailit" has had a %radual %radual de&elo'men de&elo'ment. t. In the &er" e%innin% onl" the most serious serious !rimes were re!o%nised and were sin%led out for 'unishment. The list of !rimes at that time was short. In the ne+t sta%e we find that the ma!hiner" for administration of $usti!e was refined and de&elo'ed, and 'ro!edural laws for the trial of !riminal !ases were also reformed. In this 'ro!ess of de&elo'ment we find that !ertain fundamental 'rin!i'les were e&ol&ed. The first was that nood" should e held liale unless he had the e&il intent to !ommit it, and the se!ond was that the a!!used was to e 'resumed to e inno!ent unless he was 'ro&ed to e %uilt". %uilt". The former 'rin!i'le assumed a atin %ar and e!ame e!ame known known as actus non facit reum, nisi mens sit rea, rea, and was first !ited as a 'rin!i'le " ord -en"on C.. in Fowler v. Pedger thus/ *It is a 'rin!i'le of natural $usti!e and of our law that actus non facit reum, nisi
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mens sit rea.* This 'rin!i'le has e&en in modern times een a!!e'ted to e a leadin% do!trine of !riminal law, for ord 0oddard C.. oser&ed in a !ase in 1232/ * actus non facit reum, nisi mens sit rea is a !ardinal do!trine of the Criminal aw.* This ma+im whi!h has een a!!e'ted not onl" " the !ourts of En%land ut also our own !ourts re!o%nise that there are two ne!essar" elements in a !rime, namel", first, a 'h"si!al element, and, se!ondl", a mental element. The former is known te!hni!all" as actus Reus and the latter as mens rea. These are the tests of !riminalit" known to our law and to the laws of En%land. 4ow, !ome to the EEME4TS. The two elements of !rime are mens rea and actus Reus. A'art from these two elements that %o to make u' a !rime, there are two more indis'ensale elements, namel", first, 5a human ein% under a le%al oli%ation to a!t in a 'arti!ular wa" and a fit su$e!t for the infli!tion of a''ro'riate 'unishment,6 and se!ondl", 5an in$ur" to another human ein% or to the so!iet" at lar%e.6 Thus the four elements that %o to !onstitute a !rime are as follows/ first , a human ein% under a le%al oli%ation to a!t in a 'arti!ular wa" and a fit su$e!t for the infli!tion of a''ro'riate 'unishment/ secondly, an e&il intent or mens rea on the 'art of su!h human ein%( thirdly, actus reus, i.e., a!t !ommitted or omitted in furtheran!e of su!h an intent( and fourthly, an in$ur" to another human ein% or to so!iet" at lar%e " su!h an a!t.
CRIMI4A AW Criminal law is the od" of law that relates to !rime. It re%ulates so!ial !ondu!t and 'ros!ries threatenin%, harmin%, or otherwise endan%erin% the health, safet", and moral welfare of 'eo'le. It in!ludes the 'unishment of 'eo'le who &iolate these laws. Criminal law differs from !i&il law, whose em'hasis is more on dis'ute resolution and &i!tim !om'ensation than on 'unishment. WHAT ARE THE 7)ECTI8ES? Criminal law is distin!ti&e for the uniquel" serious 'otential !onsequen!es or san!tions for failure to aide " its rules. E&er" !rime is !om'osed of !riminal elements. Ca'ital 'unishment ma" e im'osed in some $urisdi!tions for the most serious !rimes. 9h"si!al or !or'oral 'unishment ma" e im'osed su!h as whi''in% or !anin%, althou%h these 'unishments are 'rohiited in mu!h of the world. Indi&iduals ma" e in!ar!erated in 'rison or $ail in a &ariet" of !onditions de'endin% on the $urisdi!tion. Confinement ma" e solitar". en%th of in!ar!eration ma" &ar" from a da" to life. 0o&ernment su'er&ision ma" e im'osed, in!ludin% house arrest, and !on&i!ts ma" e
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required to !onform to 'arti!ulari:ed %uidelines as 'art of a 'arole or 'roation re%imen. ;ines also ma" e im'osed, sei:in% mone" or 'ro'ert" from a 'erson !on&i!ted of a !rime. ;i&e o$e!ti&es are widel" a!!e'ted for enfor!ement of the !riminal law " 'unishments/ retribution, deterrence, incapacitation, rehabilitation and restoration. Indian Criminal aws are di&ided into three ma$or a!ts i.e. Indian 9enal Code, 1<=>, Code of Criminal 9ro!edure, 12@ and Indian E&iden!e A!t, 1<. )esides theseB!larif i!ation needed laws, s'e!ial Criminal aws are also 'assed " Indian 9arliament i.e., 9re&ention of Corru'tion A!t, ;ood Adulteration A!t, dowr" 're&ention a!t, Commission of Sati A!t et!. thousands of minor laws are made in India. I4DIA4 9E4A C7DE formulated " the )ritish durin% the )ritish Ra$ in 1<=>, forms the a!kone of !riminal law in India. Indian 9enal Code was 'assed under the !hairmanshi' of ord Ma!aula" and was enfor!ed in 1<=. It has sin!e een amended se&eral times and is now su''lemented " other !riminal 'ro&isions. In the state of Jammu and Kashmir , the I9C is known as Ranbir Penal Code R9CF.1 The 7)ECTI8E of this A!t is to 'ro&ide a %eneral 'enal !ode for India. Thou%h not an initial o$e!ti&e, the A!t does not re'eal the 'enal laws whi!h were in for!e at the time of !omin% into for!e in India. This was so e!ause the Code does not !ontain all the offen!es and it was 'ossile that some offen!es mi%ht ha&e still een left out of the Code, whi!h were not intended to e e+em'ted from 'enal !onsequen!es. Thou%h this Code !onsolidates the whole of the law on the su$e!t and is e+hausti&e on the matters in res'e!t of whi!h it de!lares the law, man" more 'enal statutes %o&ernin% &arious offen!es ha&e een !reated in addition to the !ode. 8arious ordinan!es and amendments ein% 'assed or done to meet the !urrent so!ial strata of the so!iet", the latest one is Criminal Law (Amendment) Ordinance, !"# whi!h is an 7rdinan!e 'romul%ated " the 9resident of India, 9rana Mukher$ee, on @ ;eruar" >1@ whi!h 'ro&ides for amendment of Indian 9enal Code, Indian E&iden!e A!t, and Code of Criminal 9ro!edure, 12@ on laws related to se+ual offen!es. The Code is uni&ersall" a!knowled%ed as a !o%entl" drafted !ode, ahead of its time. It has sustantiall" sur&i&ed for o&er 1G> "ears in se&eral $urisdi!tions without ma$or amendments. $icholas Phillips, Justice of %upreme Court of &nited Kin'dom a''lauded the effi!a!" and rele&an!e of I9C while !ommemoratin% 1G> "ears of I9C. Modern !rimes
4 htt'/www.i'!.in Page 9 7
in&ol&in% te!hnolo%" unheard of durin% Ma!aula"s time fit easil" within the Code mainl" e!ause of the roadness of the Codes draftin%.
!""#$%#S A&AI$ST R#LI&I!$ )AS9HEMJ AW is law limitin% the freedom of s'ee!h and e+'ression relatin% to las'hem", or irre&eren!e toward hol" 'ersona%es, reli%ious artefa!ts, !ustoms, and eliefs. Some !ountries, es'e!iall" !ountries whi!h ha&e Islam as the state reli%ion, re%ard las'hem" as a serious offen!e. 9akistan, for e+am'le, has le%islation whi!h makes e+e!ution a 'enalt" for las'hem". Sin!e Hinduism, Indias dominant reli%ion, does not ha&e the !on!e't of las'hem", su!h laws are asent in tradition. In 1<=>, )ritish rule !odified Se!tion 2GA of the Indian 9enal Code whi!h 'unishes as hate s'ee!h insults or attem'ts to insult the reli%ion or the reli%ious eliefs of an" !iti:en with delierate and mali!ious intention to outra%e their reli%ious feelin%s. These laws are a''lied to all reli%ions in!ludin% Hinduism, Sikhism, Christianit" and Islam.
I4TR7DKCTI74 The Indian 9enal Code in !ha'ter L8, deals with offen!es relatin% to reli%ion. This !ha'ter has een framed on the 'rin!i'le that e&er" man should ha&e the full freedom to follow his or her own reli%ion and that no man should e allowed to insult the reli%ion of another, or reli%ious feelin%s of an" !lass of 'ersons also enshrined under Arti!les G to < of the Indian Constitution. India has no reli%ion of its own( there is no state reli%ion, unlike Islami! !ountries, su!h as 9akistan, Mala"sia, Saudi Araia, Iran and most of Middle East !ountries where Islam is the state reli%ion. Howe&er, this freedom is not asolute. It is a limited one, su$e!t to 'uli! order, moralit", de!en!" and health. Cha'ter L8 is a small !ha'ter !onsistin% of fi&e se!tionsss 2G, 2GA, 2=, 2 and 2< whi!h !an e %rou'ed into the followin% three di&isions/ I.
II.
Defilement of 'la!e of worshi' or o$e!ts of &eneration ss 2G, 2, I9CF( aF In$ur" or defilin% 'la!e of worshi' with intent to insult the reli%ion of an" !lass s 2G, I9CF( F Tres'assin% urial 'la!es et!. s 2, I9CF( 7utra%in% or woundin% reli%ious feelin%s of an" !lass ss 2GA and 2<, I9CF(
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III.
Disturin% a reli%ious asseml" s 2=, I9CF.
DEFILEMENT OF PLACE OF WORSHIP OR OBJECTS OF VENERATION The offen!e of defilement of a 'la!e of worshi' or an o$e!t of &eneration !om'rises two se'arate offen!es, that is, in$ur" or defilin% 'la!e of worshi' with intent to insult the reli%ion of an" !lass s 2G, I9CF, and tres'assin% urial 'la!es et!. s 2, I9CF.
S. 295. Injury or defiling place of worship with intent to insult the religion of any class. Whoe&er destro"s, dama%es or defiles an" 'la!e of worshi', or an" o$e!t held sa!red " an" !lass of 'ersons with the intention of there" insultin% the reli%ion of an" !lass of 'ersons or with the knowled%e that an" !lass of 'ersons is likel" to !onsider su!h destru!tion, dama%e or defilement as an insult to their reli%ion, shall e 'unished with im'risonment of either des!ri'tion for a term whi!h ma" e+tend to two "ears, or with fine, or with oth. The o$e!t of this se!tion is to 'unish those 'ersons who intentionall" wound the reli%ious feelin%s of others " in$urin% or defilin% a 'la!e of worshi'. This se!tion is intended to 're&ent wanton insult to the reli%ious notions of a !lass of 'ersons. This se!tion has een intended to res'e!t the reli%ious sus!e'tiilities of 'ersons of different reli%ious 'ersuasions or !reeds. Courts ha&e %ot to e e&er" !ir!ums'e!t in su!h matters and to 'a" due re%ard to the feelin%s and reli%ious emotions of different !lasses of 'ersons with different eliefs, irres'e!ti&e of the !onsideration whether or not the" share those eliefs, or whether the" are rational or otherwise, in the o'inion of the Court. @ This se!tion does not 'enalise an" and e&er" a!t of insult or attem't to insult the reli%ion or the reli%ious eliefs of a !lass of !iti:ens, whi!h are not 'er'etrated with the delierate and mali!ious intention of outra%in% the reli%ious feelin%s of that !lass do not !ome within the s!o'e of the se!tions. It onl" 'unishes the a%%ra&ated form of insult to reli%ion when it is 'er'etrated with the delierate and mali!ious intention of outra%in% the reli%ious feelin%s of that !lass.
- opinath &. Ramchandra, 12G
@/ 12G< Cr 1G=G 1G=
In %heo %han*ar + !ase, the dama%in% or destro"in% of a sa!red thread worn " a 'erson, who is not entitled under the Hindu !ustom to wear it or for whom the wearin% of the sa!red thread was not 'art of his !eremonial oser&an!e under the Hindu reli%ion, in assertion of a mere !laim to hi%her rank, was held to e not an insult to his reli%ion. In the !ase of arun Rashid- followin% .ala*a %in'h/ and On*arnath0 F, where two 'ersons were 'rose!uted for ha&in% aetted an offen!e under this se!tion and the witnesses for the 'rose!ution %a&e onl" a $oint or oiled down %ist of the statements of the two a!!used without sa"in% as to whi!h of them said what and one of the a!!used was a!quitted, it was held that it was not 'ossile to !on&i!t the remainin% a!!used on su!h e&iden!e, for a summar" of an ine+tri!al" mi+ed u' s'ee!h e&en if not roadl" ina!!urate "et it ma" not faithfull" refle!t what the s'eakers a!tuall" said and in what !onte+t. In 0uwahati !ase of arun Rashid &. %tate of Assam 1, the a!!used was !har%ed for aettin% the destru!tion of ima%e Dur%a on the ri&er )ank of )arak. )ut the idol was found inta!t, onl" the ne!k of the Asura was missin%. The !har%e was held to e not 'ro&ed .
S. 297. Trespassing on urial places! etc . Whoe&er, with the intention of woundin% the feelin%s of an" 'erson, or of insultin% the reli%ion of an" 'erson, or with the knowled%e that the feelin%s of an" 'erson are likel" to e wounded, or that the reli%ion of an" 'erson is likel" to e insulted there", !ommits an" tres'ass in an" 'la!e of worshi' or on an" 'la!e of s!ul'ture, or an" 'la!e set a'art from the 'erforman!e of funeral rites or as a de'ositor" for the remains of the dead, or offers an" indi%nit" to an" human !or'se, or !auses disturan!e to an" 'ersons assemled for the 'erforman!e of funeral !eremonies, shall e 'unished with im'risonment of either des!ri'tion for a term whi!h ma" e+tend to one "ear, or with fine, or with oth.
7 123>F 1G u!k =2=. / 12< Cr G=. " 12G Cr 1@3 SCF. $ 12 Cr 23 SCF. 3 Su'ra note G. Page 9 $
This se!tion deals more es'e!iall" with tres'asses on 'la!es of se'ul!hre and 'la!es set a'art for the 'erforman!e of funeral rites and as de'ositories for the remains of the dead. It e+tends the 'rin!i'le laid down in S. 2G to 'la!es whi!h are treated as sa!red. The essen!e of the se!tion is an intention, or knowled%e of likelihood, to wound feelin%s or insult reli%ion and when with that intention or knowled%e tres'ass on a 'la!e of se'ul!hre, indi%nit" to a !or'se, or disturan!e to 'ersons assemled for funeral !eremonies is !ommitted, the offen!e is !om'lete.2 The se!tion !ontem'lates disturan!e of 'ersons en%a%ed in 'erformin% funeral !eremonies. )ut a 2oharram 'ro!ession is not a funeral !eremon" within the meanin% of this se!tion.1> The essen!e of the offen!e is mens rea in addition to an a!t of destru!tion, dama%e of defilement of 'la!e or worshi'. The aw Commission, while !ommentin% on the 'ro'riet" of ena!tin% the se!tions, ha&e ri%htl" said/ 3e ha4e prescribed a punishment of 'reat se4erity5 6he proposed punishment is ri'orous imprisonment for a term which mi'ht e7tend to se4en years for the intentional destroyin' or defilin' of places of worship, or of ob8ects held sacred by any class of persons5 $o offence in the whole of the Penal Code is so li*ely to lead to tumult, to san'uinary outra'e and e4en to armed insurrection.11
In the !ase of Katwaru &. %tate," when the 'rose!ution !ase is that a!!used wounded the feelin%s of an" 'erson " 'lou%hin% a %ra&e"ard there must e e&iden!e to rin% home !har%e under Se!tion 2, I9C that the 'la!e is set a'art as a de'ositor" of or the remains of the dead. 9roof of two or three urials is not enou%h.
.urhan %hah, 1<<F 9R 4o. = of 1<<. 45 hosita &. Kal*a, 1<
In %urdarshan Kumar and Others &. an'acharan 9ubey ,"# the a!!used 'oli!e offi!ials had shot dead a !riminal in en!ounter and after 'ost mortem took the od" to de!easedNs father who refused to take the od" ut in the meantime a lar%e !rowd had %athered to see the dead od" and in other to a&oid law and order 'rolem and ensure 'uli! at lar%e aout the death of dan%erous !riminal his od" was ro'ed to tower for few minutes. It was held that 'oli!e offi!ials were not %uilt" us. 2 ass the" had not intended to show an" indi%nit" to the dead od".
4 >>> Cr 1=1< M9F. Page 9
OUTRAGING OR WOUNDING THE RELIGIOUS FEELINGS S. 295". #elierate and $alicious acts! intended to outrage religious feelings or any class y insulting its religion or religious eliefs . Whoe&er, with delierate and mali!ious intention of outra%in% the reli%ious feelin%s of an" !lass of !iti:ens of India, " words, either s'oken or written, or " si%ns or " &isile re'resentations or otherwise, insults or attem'ts to insult the reli%ion or the reli%ious eliefs of that !lass, shall e 'unished with im'risonment of either des!ri'tion for a term whi!h ma" e+tend to three "ears, or with fine, or with oth. 13 The essen!e of the offen!e under this se!tion is that the insult to reli%ion or the outra%e to reli%ious feelin%s must e the sole, or 'rimar", or atleast the delierate and !ons!ious intention. In order to rin% the !ase within this se!tion it is not so mu!h the matter of dis!ourse as the manner of it. The words used should e su!h as are ound to e re%arded " an" reasonale man as %rossl" offensi&e and 'ro&o!ati&e and mali!iousl" and delieratel" intended to outra%e the feelin% of an" !lass of !iti:ens of India. It is no defen!e to a !har%e under this se!tion for an"one to 'lead that he was writin% a ook in re'l" to the one written " one 'rofessin% another reli%ion who has atta!ked his own reli%ion. 1G The idea of makin% a se'arate offen!e under Se!tion 2GA is to 'unish those who attem't to insult the reli%ion or reli%ious elief of an" !lass of !iti:ens in India. It does not 'roal" relate to an" a!t done with the intention of outra%in% the reli%ious feelin%s of an" indi&idual or indi&iduals. Se!tion 2GA has a''li!ation where the whole of 'arti!ular !lass of !iti:ens is affe!ted and it is for this reason that a !om'laint " the State 0o&t. or an offi!er em'owered in this ehalf " the State 0o&t. has een made a 'rerequisite for the initiation of su!h 'ro!eedin%s. It is also 'roal" for this reason that the offen!e has een made to e triale e+!lusi&el" " the Court of Session or a 9residen!" Ma%istrate althou%h the 'unishment 'ro&ided for the same is onl"
47 The se!tion was first inserted " the Criminal aw Amendment A!tF 12 G of 12F and amended " Criminal aw AmendmentF A!t 12=1.
4/ %hi4 Ram 9ass &. Kin' :mperor, AIR 12 All =32. Page 9 45
@ "ears.1= It is not ne!essar" to 'ro&e that the a!!used ore ill#will or enmit" a%ainst s'e!ifi! 'ersons.1 7ffen!e relatin% to reli%ion is ased on mali!e and asi! requirement of the offen!e is delierate and mali!ious a!t and 'erson alle%in% the mali!ious and delierate a!t on 'art of another has to 'ro&e it. In 6he 6rustee of %afdar ashmi 2emorial Trust &. o4t5 of $C6 of 9elhi ,"1 the notifi!ation of 0o&t. of Delhi forfeitin% the material !ontainin% in the anner, titled as Ram -atha in ain tradition and )udh tradition, was !hallen%ed on the %round that notifi!ation did not mention the 'arti!ular material found o$e!tionale. The notifi!ation also did not mention the name of reli%ion or !ommunit" whi!h was likel" to e in!ensed. It was held that notifi!ation was liale to e nullified as there was !om'lete non#a''li!ation of the mind. In the im'u%ned !ase of Ram8i Lal 2odi 45 %tate of &ttar Pradesh "; the !onstitutional &alidit" of S. 2GA I9C was !hallen%ed on the %round that it infrin%es the fundamental ri%ht of freedom of s'ee!h and e+'ression %uaranteed under Art. 121F aF of the Constitution. While holdin% the !onstitutionalit" of S. 2GA, I9C, the Su'reme Court held that the se!tion is ena!ted in the interest of 'uli! order, and it onl" 'enalises the a%%ra&ated form of insult to reli%ion, when it is 'er'etrated with the delierate and mali!ious intention of outra%in% the reli%ious feelin%s of a !lass of !iti:ens. Ri%ht to freedom of reli%ion is su$e!t to 'uli! order, moralit" or health. Restri!tions on ri%ht to freedom ma" e im'osed in interest of 'uli! order. Se!tion 2GA, has een in!luded in Cha'ter L8 of the I9C, whi!h deals with offen!es relatin% to reli%ion. In Chandanmal 45 %tate of 35.5 ! the Cal!utta Hi%h Court in a writ 'etition under Art. = of the Indian Constitution has refused to issue a writ for forfeitin% !o'ies of -oran under Se!tion 2GA or 1G@ I9C. 4o a!tion !an e taken a%ainst -oran either under S 2GA or 1G@
4" %tate of Pun8ab &.4and Sin%h , 122 Cr R 9 O HF =. 4$ Khalil Ahamad ,AIR 12=> All 1G S). 43 >>1 Cr @=<2 DelF. In this !ase referen!e to Se!tion 1G@A was also made. 4 AIR 12G SC =>. -5 12<= Crl. .. 1<@. Page 9 44
annin% or forfeiture of -oran !annot e ordered. It would &iolate the 9reamle and Art. G of Constitution. The -oran ein% a sa!red )ook and 5an o$e!t held sa!red " a !lass of 'ersons6 within the meanin% of Se!tion 2G of 9enal Code, a%ainst su!h ook no a!tion !an e taken under S. 2GA of 9enal Code. Consequentl", annin% or forfeiture of -oran !annot e ordered under S. 2G of Cr9C. An" other inter'retation would lead to asurdit". If an" offen!e, within the S. 2G, I9C is !ommitted, in res'e!t of -oran then it is 'unishale. Se!tion 2GA, I9C does not 'enalise an" and e&er" a!t of insult to or attem't to insult the reli%ion or the reli%ious eliefs of a !lass of !iti:ens, whi!h are not 'er'etrated with the delierate and mali!ious intention of outra%in% the reli%ious feelin%s of that !lass. Insults to reli%ion offered unwittin%l" or !arelessl" or without an" delierate or mali!ious intention of outra%in% the reli%ious feelin%s of that !lass do not !ome within the s!o'e of the se!tion. It onl" 'unishes the a%%ra&ated form of insult to reli%ion when it is 'er'etrated with the delierate and mali!ious intention of outra%in% the reli%ious feelin%s of that !lass. It !annot e said that -oran offers an" insult to an" other reli%ion. It does not refle!t an" delierate or mali!ious intention of outra%in% the reli%ious feelin%s of non#Muslims. Isolated 'assa%es 'i!ked out from here and there and read out of !onte+t !annot !han%e the 'osition.
S. 29%. &ttering! words! etc.! with delierate intent to wound the religious feelings of any person. Whoe&er, with the delierate intention of woundin% the reli%ious feelin%s of an" 'erson, utters an" word or makes an" sound in the hearin% of that 'erson or makes an" %esture in the si%ht of that 'erson or 'la!es an" o$e!t in the si%ht of that 'erson, shall e 'unished with im'risonment of either des!ri'tion for a term whi!h ma" e+tend to one "ear, or with fine, or with oth. The authors of the Code oser&e/ 5In framin% this !lause we had two o$e!ts in &iew/ we wish to allow all fair latitude to reli%ious dis!ussion, and at the same time to 're&ent the 'rofessors of an" reli%ion from offerin%, under the 'rete+t of su!h dis!ussion, intentional insults to what is held sa!red " others. We do not !on!ei&e that an" 'erson !an e $ustified in woundin% with delierate intention the reli%ious feelin%s of his nei%hours " words, %estures or e+hiitions. A warm e+'ression dro''ed in the heat of !ontro&ers", or an ar%ument ur%ed " a 'erson, not for a 'ur'ose of &indi!atin% his own will not fall under the definition !ontained in this !lause.6
Page 9 4-
It was held in the !ase of $arasimha &. %hree Krishna " that the inter'olation of a foridden !hant in an authorised ritual is an offen!e under this se!tion. In Rahman, e+hiitin% !owNs flesh " !arr"in% it in an un!o&ered state round a &illa%e with the delierate intention of woundin% the reli%ious feelin%s of Hindus was held to e an offen!e under Se!tion 2<. In the !ase of Am8ad %ei*h &. :mperor#, on the o!!asion of )akr#i#Id, the a!!used killed a !ow at dawn in a semi 'ri&ate 'la!e and killin% was seen " some Hindus walkin% alon% the &illa%e 'athwa" fift" feet awa", it was held that no offen!e under this se!tion was !ommitted. Howe&er, in Kitab Ali &. %anti Ran8an, + it was held that the sa!rifi!e of !ow on the )akr#i#Id da" is not an oli%ator" reli%ious a!t for a Muslim and the 'rose!ution of Art. G of the Constitution !annot e !laimed for su!h an a!t. 7f the offen!es under the ao&e two Se!tions 2GA and 2<, the former is more serious, for the words used are 5outra%in%6 whi!h is undoutedl" a stron%er e+'ression than 5woundin%6 used in Se!tion 2<. The intention to outra%e must not onl" e delierate ut also mali!ious under Se!tion 2GA whereas in Se!tion 2<, it need onl" e delierate. A%ain in Se!tion 2G, the offensi&e words or re'resentations must e dire!ted to a !lass of 'ersons and not merel" a%ainst an indi&idual as in Se!tion 2<. It is no defen!e to a 'rose!ution under S. 2< that reli%ious feelin%s were delieratel" sho!ked or wounded " the a!!used in order to draw attention to some matter in need of reform. Knder S. 2GA howe&er the 'rose!ution must 'ro&e that the insult was for the sake of insultin% and with an intention whi!h s'rin%s from mali!e and mali!e alone. To a !har%e under this se!tion, therefore, it would e a %ood defen!e to sa" 5I had no mali!ious intention
-4 1<2F Mad ur @=. -- 1<2@F 1@ AW4 133. - AIR 123 9at 31. -7 AIR 12=G Tri'ura . Page 9 4
towards a !lass, ut I did intend to wound and sho!k the feelin%s of an indi&idual, so that attention mi%ht, howe&er rudel", e !alled to a reform whi!h I had in &iew.6G
-/ 0our, Penal Law,
DISTURBING RELIGIOUS ASSEMBLY S. 29'. #isturing religious asse$ly . Whoe&er &oluntaril" !auses disturan!e to an" asseml" lawfull" en%a%ed in the 'erforman!e of reli%ious worshi', or reli%ious !eremonies, shall e 'unished with im'risonment of either des!ri'tion for a term whi!h ma" e+tend to one "ear, or with fine, or with oth. Assemlies held for reli%ious worshi', or for the 'erforman!e of reli%ious !eremonies, are here" 'rote!ted from intentional disturan!e. The o$e!t of this se!tion is to se!ure freedom from molestation when 'eo'le meet for the 'erforman!e of a!ts in a quiet s'ot &ested for the time in the asseml" e+!lusi&el", and not when the" en%a%e in worshi' in an unquiet 'la!e, o'en to all the 'uli! as a thorou%hfare.= In order that Se!tion 2=, I9C ma" e in&oked the asseml" must e a!tuall" en%a%ed in the 'erforman!e of reli%ious worshi' or reli%ious !eremonies when the alle%ed disturan!e is !aused. Disturan!e durin% an inter&al in a worshi' or 'ra"er is not !o&ered " this se!tion. In :mperor &. Aftab 2ohammad Khan ,1 it was held that for the 'ur'ose of Se!tion 2=, when three 'ersons %ather to%ether for the 'ur'oses of worshi' it is suffi!ient to !onstitute an 5asseml"6. A mosque is a 'la!e where all se!ts of Mahomedans are entitled to %o and 'erform their de&otion ass of ri%ht, a!!ordin% to their !ons!ien!e( and a Mahomedan of one se!t 'ronoun!in% the word 5amin6 loudl", as held in the !ase of Ata &llah &. A
-" i8iara'ha4a Chariar , 12>@F = Mad GG3, G3 ;). -$ 1< All 21. - 1<<2F 1 All 323 ;) . Page 9 4/
)ut in Jan'u &. Ahmadullah ,#! it was held that an" 'erson, Mahomedan or not, who %oes into a mosque not bona fide for a reli%ious 'ur'ose, mala fide, for the 'ur'ose of disturin% others en%a%ed in their de&otions, will render himself !riminall" liale. 9ersons of e&er" se!t are entitled to take out reli%ious 'ro!essions with musi! throu%h 'uli! streets 'ro&ided that the" do not interfere with the ordinar" use of the streets " the 'uli! or !ontra&ene an" traffi! re%ulation or lawful dire!tions issued " the Ma%istrates. A reli%ious 'ro!ession does not !han%e its !hara!ter merel" e!ause the musi! is tem'oraril" sto''ed in front of a mosque. Interferen!e with su!h a 'ro!ession " the a!!used rin% them under the mis!hief of Se!tion 2= read with Se!tion @31, I9C has de!ided in 2ohamud*han 45 :mperor .@1 In the !ase of 2asit &. :mperor#, !ertain odhas were !arr"in% ;la%s throu%h 'uli! streets in a 'ro!ession to a tem'le with the san!tion of 'uli! authorities in the 'erforman!e of reli%ious !eremon" and the 'ersons !arr"in% them !onstituted an asseml" lawfull" en%a%ed in reli%ious !eremon". An atta!k on su!h a 'ro!ession is an offen!e under Se!tion 2=. The question whether intentional 'la"in% of musi! " a reli%ious 'ro!ession in front of a mosque where 'ra"ers are ein% offered !onstitutes an offen!e under Se!tion 2=, I9C is not free from diffi!ult". It de'ends u'on the fa!ts and !ir!umstan!es of ea!h !ase. It also de'ends on the inter'retation of Arti!le G of Indian Constitution. The essential in%redient of an offen!e under Se!tion 2= is the doin% of an a!t " whi!h a disturan!e is !aused. It was held in 2ohammed usain &. :mperor ,@@ that mere s'readin% of false rumours e&en if 'ro&ed and e&en if it results in serious !onsequen!es, !annot amount to 5!ausin% a disturan!e6.
5 ,4331 4 All 74 F8. 4 AIR 1232 4a% 1@. - 1 Cr G@. AIR 1212 All 1<<. Page 9 4"
OFFENCES AGAINST RELIGION IN NEWS
In (9)2, some !leri!s denoun!ed a "oun% woman 'h"si!ian named Rashid ahan, and threatened her with disfi%urement and death. She and three others had 'ulished a !olle!tion of Krdu short stories !alled An%are" in whi!h the" had roustl" !riti!i:ed os!urantist !ustoms in their own !ommunit" and the se+ual h"'o!risies of some feudal landowners and men of reli%ion. Knder se!tion 2GA, the authorities anned the ook and !onfis!ated all !o'ies. @3
In (9)), the 'oli!e arrested Dr. DA&oine under se!tion 2GA for 'ulishin% his arti!le *Reli%ion and Moralit"* in the Se'temer 12@@ issue of the ma%a:ine Reason. The trial $ud%e found that the arti!les 'ur'ose was !onsistent with the 'ur'ose of the ma%a:ine, namel", *to !omat all reli%ious and so!ial eliefs and !ustoms that !annot stand the test of reason and to endea&our to !reate a s!ientifi! and tolerant mentalit" amon% the masses of the !ountr"*. The trial $ud%e Sir H. 9. Dastur found that the arti!le had no mali!ious intent and did not !onstitute a &iolation of se!tion 2GA .@G
7n 2 "ugust 2**', two reli%ious %rou's in Ahmedaad !om'lained to the 'oli!e that their reli%ious sentiments were hurt e!ause a %arment#maker had 'rinted te+t from the Hindu and ain reli%ions on !lothin%. The 'oli!e filed the !om'laint as a matter under se!tion 2G. @=
In #ece$er 2**', a !om'laint was filed a%ainst !ri!keter Ra&i Shastri for hurtin% the reli%ious feelin%s of Hindus " his alle%edl" eatin% eef durin% a Test mat!h in ohannesur%.@
7 0o'al, 9ri"am&ada, *A ;or%otten Histor"*, = De!emer >>. / *Indias ;irst )las'hem" 9rose!ution*. >nternational umanist and :thical &nion, 1< De!emer >>.
" *Sa!red te+t on !lothes/ fashion desi%ner ooked*, www.ner&e.in, Au%ust >>=. $ *Case filed a%ainst Ra&i Shastri for eatin% eef*, Pee 4ews, >>=#1#@. Page 9 4$
In +arch 2**7, a news'a'er editor )8 Seetharam was arrested under the Se!tions 1G@A, 1G@), and 2G of the I9C for alle%edl" 'romotin% reli%ious hatred. He had written arti!les !riti!i:in% the 'uli! nudit" of the Di%amara ain monks. @<
In +ay 2**7, a )uddhist %rou' in Maharashtras Amara&ati distri!t said their reli%ious sentiments were hurt, and filed a !om'laint a%ainst Rakhi Sawant, an a!tress, e!ause she 'osed in a athtu a%ainst a statue of ord )uddha. @2
In Septe$er or ,ctoer 2**7 , the 'oli!e in 9une arrested four )an%alore#ased software#en%ineers for 'ostin% on the Internet an os!ene 'rofile of Chhatra'ati Shi&a$i, a si+teenth#!entur" Maratha warrior kin%, !lad in female underwear .3>,31
In 2**7, the authorities !har%ed ninet"#one#"ear#old Maqool ;ida Husain with hurtin% reli%ious sentiments " 'aintin% Mother India as a naked woman .3
-oes on Sardars / In +arch 2**7, around G Sikh "ouths from Sikh Media and
Culture Wat!h SMCWF demanded arrest of Ran$it 9arande, a Matun%a#ased ook seller, for sto!kin% the %anta and .anta Jo*e .oo* , a !olle!tion of Sardar$i $okes. )ased on a !om'laint filed " a Sikh usinessman, the Mumai 9oli!e arrested 9arande under se!tion 2G of the Indian 9enal Code, for *hurtin% reli%ious sentiments.*3@
In Feruary 2**9, the 'oli!e filed a !om'laint a%ainst Ra&indra -umar and Anand Sinha, the editor and the 'ulisher res'e!ti&el" of the -olkata#ased En%lish dail" The Statesman. The 'oli!e !har%ed -umar and Sinha under se!tion 2GA e!ause the" had re'rinted an arti!le from The Inde'endent " its !olumnist ohann
3 ;reedom of e+'ression under atta!k " 9ar&athi Menon, The Hindu, Mar!h <, >>. *Rakhi in le%al troule o&er athtu s!ene*, www.ner&e.in, 1 Ma" >>. 75 Mishra, 0aura& < ;eruar" >>2F, *Shi& Senas 7rkut Cam'ai%n/ The imits to ;reedom of E+'ression in an Intolerant India*, 0aura&onomi!s )lo%.
74 *9une !o's ook 7rkut user*, The Times of India, Se'temer >>. 7- Reuters Ma" >>F, *M ; Husain loses ho me o&er nude Mother India*, E+'ressindia.!om. 7 *Sikhs ask !o's to an Sardar $okes on 4et*, The Times of India, Mumai, Mar!h , >>. Page 9 43
Hari Titled *Wh" should I res'e!t o''ressi&e reli%ions?* The arti!le stated Haris elief that the ri%ht to !riti!ise an" reli%ion was ein% eroded around the world. Muslim 'rotestors in -olkata rea!ted to Haris elief " &iolent demonstrations at the offi!es of The Statesman.33
In /ove$er 2*(2, Maharashtra 9oli!e arrested Shaheen Dhada 1F for questionin% the total shutdown in the !it " for )al Tha!kera"Ns funeral in a ;a!eook 'ost, and also her friend Renu Srini&asan >F for likin% her 'ost. Althou%h no reli%ious issue was in&ol&ed, the two were !har%ed under Se!tion 2GA for hurtin% reli%ious sentiments, a'art from Se!tion == aF of the Information Te!hnolo%" A!t >>> 3G. The e+a!t !omment 'osted " Shaheen Dhada was/ 3= Rea!tin% to this in!ident, Memer of 9arliament Ra$ee& Chandrasekhar said, 5This in!ident shows the misuse of the IT A!t rules as 'ut to%ether " Minister -a'il Sial. I am m"stified " our %o&ernmentNs a''roa!h oth to the internet and to the millions of Indians usin% it. It does not adhere to the &alues of our re'uli! and demo!ra!". This matter needs to e addressed ur%entl".6 Inde'endent Memer of 9arliament Ra$ee& Chandrasekhar has attled tirelessl" a%ainst %rowin% internet !ensorshi' in India, usin% his 'osition in the u''er house of 'arliament to !hallen%e le%islation that !hokes di%ital freedom. Mr Chandrasekhar has filed a 9uli! Interest iti%ation 9IF in Su'reme Court Challen%in% the IT Rules. 3ith all respect, e4ery day, thousands of people die, but still the world mo4es on5 Just due to one politician died a natural death, e4eryone 8ust 'oes bon*ers5 6hey should *now, we are resilient by force, not by choice5 3hen was the last time, did anyone showed some respect or e4en a two=minute silence for %haheed .ha'at %in'h, Andians? Respect is earned, 'i4en, and definitely not forced5 6oday, 2umbai shuts down due to fear, not due to respect5
77 Ta"lor, erome 1 ;eruar" >>2F, *Editor arrested for outra%in% Muslims*, The Inde'endent. 7/ *In 9al%har, !o's ook 1#"ear#old for ;) 'ost*, Mu mai Mirror, 12 4o&emer >1. 7" *Mumai shuts down due to fear, not res'e!t*, The Hindu, 12#11#>1. Page 9 4
The two women were later %ranted ail on a suret" of
1G,>>>.3 Their arrest was
stron%l" !riti!i:ed " a numer of the !iti:ens, in!ludin% the 9ress Coun!il of India !hairman Markande" -at$u.3<,32 An internal inquir" " the Maharashtra 9oli!e deemed the arrests wron%ful and indi!ted four 'oli!e offi!ers linked to the arrest. G>
In /ove$er 2*(2, a !om'laint was filed seekin% 'enal a!tion a%ainst )9 'resident 4itin 0adkari for *hurtin%* reli%ious sentiments of lakhs of followers of Swami 8i&ekananda " !om'arin% him with underworld don Dawood Irahim. G1
TD9 !or'orator T Ra$a Sin%h filed a !om'laint a%ainst Ma$lis#e#Ittehadul Muslimeen MIMF le%islator Akaruddin 7waisi in the 4am'all" !ourt for his dis'ara%in% remarks a%ainst Hindus in a hate s'ee!h on #ece$er 20! 2*() , the main !ontent of whi!h was that Muslims would need $ust 1G minutes without the 'oli!e to show 1>> !rore Hindus who is more 'owerful. Akaruddin, who is the "oun%er rother of MIM M9 Asaduddin 7waisi, said Hindus ha&e so man" %ods and %oddesses, and e&er" ei%ht da"s, there are new %ods !omin% u'. *We knew aout akshmi, ut who is )ha%"alakshmi, we are not aware,* Akar said referrin% to the )ha%"alakshmi tem'le auttin% the histori! Charminar.G
7$ *Two women arrested for Anti#Shi& Sena !omments on ;a!eook, %o&ernment orders enquir"*, The E!onomi! Times MumaiF, 12 4o&emer >1.
73 *-at$u lasts arrest of women who !ommented on ;)*, The Hindu, 12#11#>1. 7 *4eti:ens fla" Mumai %irlsN arrest o&er ;a!eook 'ost*, The Hindu )usiness ine, 12#11#>1. /5 *;) arrests Qille%alN, four offi!ers indi!ted*, Mumai Mirror, 3#11#>1. /4 :Case against Nitin Gad;ari for com'aring Swami 6dera)ad0 %ec -0 -54-. Page 9 -5
RECENT CASES 2*()1 7n 11@/
Maqbool v. State of Karnataka53 Facts1 The a''ellants were the a!!used in a !riminal !ase re%istered " the Chita%u''a 9oli!e for offen!es 'unishale under Se!tions 13@, 295 read with 132 of the Indian 9enal Code, 1<=> and Se!tion @1F +F of the S!heduled Castes and S!hedule Tries 9re&ention of Atro!itiesF A!t, 12<2 on the asis of a written !om'laint lod%ed " one 4a%shett", whi!h was dul" si%ned " 3 others. It was alle%ed that the" are residents of Mustari &illa%e and had made a re'resentation to the Minister of 9etroleum and Memer of e%islati&e Coun!il, Ra$ashekar and to other authorities for %rant of land in order to enale them to estalish a )oudh 8ihar. It is their alle%ation that on G..>>3, all the 'ersons who were si%natories to the !om'laint and who elon%ed to a S!heduled Caste Communit", had installed the 9an!hasheela and Dharma!hakra fla%s on forest land. )ut on the ne+t da", the 'resident of the 0rama 9an!ha"at, his "oun%er rother and his three sons had remo&ed the 'ortraits of ord )uddha and Dr. )aasahe Amedkar and had set fire to the fla%s a'art from ausin% them in foul lan%ua%e in the name of their !aste and sou%ht for a!tion ein% taken a%ainst the a''ellants. This is a Criminal A''eal a%ainst the $ud%ment dated 1<.>=.>>< 'assed " the 9residin% 7ffi!er, !on&i!tin% the a''ellants a!!used for the offen!e 'unishale under Se!tion 2G Indian 9enal Code, 1<=> read with Se!tion @3 I9C and for the offen!e 'unishale under Se!tion @1F of the S!heduled Castes and S!hedule Tries 9re&ention of Atro!itiesF A!t, 12<2 and senten!in% them to under%o sim'le im'risonment for two "ears and to 'a" fine of Rs.1>,>>># ea!h for the offen!e 'unishale under Se!tion 2G read with @3 of the I9C, in default, to 'a" the fine amount, the" shall under%o sim'le im'risonment for si+ months,
/ Criminal A''eal No.$7 OF -553. Page 9 -4
further senten!in% them to under%o sim'le im'risonment for fi&e "ears and to 'a" a fine of Rs.1>,>>># ea!h for the offen!e 'unishale under Se!tion @iFof the SC ST 9AF A!t and in default of 'a"ment of fine, the" shall under%o sim'le im'risonment for si+ months ea!h.
Issues1 1. Whether the 'rose!ution has 'ro&ed the %uilt of the a!!used 'ersons e"ond reasonale dout and 'ro&ed the fa!t that on =..>>3, at 11.>>a.m. The a!!used 'ersons with !ommon intention remo&ed the 'hoto%ra'hs of )ha%wan )uddha and of Dr.Amedkar and torn and urnt the fla%s? . )" doin% so the a''ellants insulted the feelin%s of the !ommunit" and the" did not sto' at that, ut aused them and there" !ommitted the offen!e 'unishale under Se!tion 2G read with @3 I9C and Se!tion @1F +F of the A!t?
"rgu$ents on ehalf of the espondents1 There were 3witnesses who ha&e !onsistentl" shared the e&iden!e as to the use of foul lan%ua%e deni%ratin% the !aste of the !om'lainants and the fa!t that the" were all 'resent at the s'ot and the fla%s ha&in% een u'rooted and the 'ortraits ha&in% een urnt to the %round, was alread" estalished. Thou%h the !om'lainants elie&ed that the fla%s had een torn, it was later dis!o&ered that the" had een uried in the %round after ein% remo&ed from the fla% 'oles. This !ertainl" amounted to deni%ratin% a 'art", whi!h stood for u'liftment of the S!heduled Castes. Dr. Amedkar was a 'oliti!al leader, who fou%ht for the ri%hts of the S!heduled Castes and was a 'erson elon%ed to a s!heduled !aste, who himself had emra!ed )uddhism and therefore, the 'ortraits of )uddha and Dr. Amedkar as re'resentin% the role models of the S!heduled Castes and the 'oliti!al 'art" fla%s of Dr. Amedkar ein% dis'la"ed, was onl" as a anner of the S!heduled Castes and an" disres'e!t shown to those i!ons, was !ertainl" a disres'e!t to the S!heduled Castes and therefore, the !ourt ha&in% im'osed the 'unishment is nominal %i&in% the ma+imum 'unishment that was attra!ted for the offen!es, of whi!h there was !o%ent e&iden!e, on the asis of whi!h, the !ourt has held that the offen!es ha&e een 'ro&ed.
"rgu$ents on ehalf of the "ppellant1 Page 9 --
the land did not elon% to the !om'lainants and hen!e to !ontend that the a''ellants had tres'assed on to the land and defied the 'ortraits of lord )uddha and Dr. Amedkar a'art from urnin% the fla%s and usin% foul lan%ua%e a%ainst the !aste of the !om'lainants and elittlin% them, is not estalished. In an" e&ent, the !ourt has found as a fa!t that neither the fla%s were urnt nor the 'ortraits destro"ed. The" were found inta!t. And further, the a''ellants ha&in% used foul lan%ua%e a%ainst the !om'lainants was also estalished on the asis of the testimon" of the !om'lainants. This, the learned Counsel would sumit, is an unfair findin%, es'e!iall", sin!e the 'ortraits of ord )uddha or Dr. Amedkar and the fla%s were re'resentin% a 'oliti!al 'art" and )uddhism. There was no indi!ation that the" were re'resentati&e of an" S!heduled Caste, in order that the def"in% of the 'ortraits or fla%s amounted to showin% disres'e!t to a s!heduled !aste. There is no e&iden!e as to the a''ellants ha&in% used su!h lan%ua%e %enerall" a%ainst all of them or onl" a%ainst some of them. It was also !ontended that this is also in the a!kdro' of the 'resent a''ellants themsel&es ha&in% filed a !om'laint, ut the same has een ne%ated on the %round that the !om'laint filed " the !om'lainants in the 'resent !ase was earlier in 'oint of time and that the !om'laint lod%ed " the 'resent a''ellants was an after#thou%ht and was a !ounter#last to the !om'laint that was alread" filed. The !ourt, therefore, was not $ustified in holdin% that the offen!es stood estalished.
-udge$ent1 The !om'lainants, who were seekin% to la" !laim o&er 'ortions of land, is an admitted fa!t. The same sou%ht to e o!!u'ied " them " 'lantin% fla%s of a 'oliti!al 'art" or the 'ortraits of Dr. Amedkar and )uddha, did not " itself demonstrate that the 'ortraits or fla%s were re'resentati&e of the S!heduled Caste !ommunit". The alle%ation that foul lan%ua%e was used a%ainst the !om'lainants is a self#ser&in% alle%ation. There were no inde'endent e"e witnesses. The si%natories to the !om'laint were a!tin% as a %rou' and a''arentl", the intention was to im'li!ate the a''ellants. There was ri&alr" etween two %rou's and the alle%ation that su!h foul lan%ua%e was used in the forest land would hardl" make it an offen!e !ommitted in 'uli!, as is a ne!essar" in%redient for !ommittin% an offen!e under the 'ro&isions of the 97A A!t. Therefore, it !an hardl" e said that the 'rose!ution had estalished its !ase e"ond all reasonale dout for the !ourt to ha&e !on&i!ted and 'unished the a!!used. A!!ordin%l", the a''eal was allowed. The $ud%ment of the !ourt was set aside. The a''ellants were a!quitted.
Page 9 -
1 anuar", >1@
Tanweer Alam alias Tanweer Ahmad v. The State Of Bihar54 The 'etitioner is the sole named a!!used of a !ase whi!h has een re%istered for offen!es under Se!tions 295 and 2953"4 of the Indian 9enal Code. He is Steno of Munsif, )anka. It has een alle%ed " a 9eon of )anka Ci&il Court that the 'etitioner has urinated in the tem'le. The 'etitioner has denied the alle%ation randin% him to e a latant liar. Sumission is that the offen!e attra!ts Se!tion 2< of the Indian 9enal Code whi!h is ailale. The 'etitioner has full re%ard to all reli%ions. He is a handi!a''ed and a 'erson of ad&an!e a%e of G> "ears. He is in !ustod" sin!e 1.11.>1. Considerin% the fa!ts and !ir!umstan!es of the !ase, it was ordered that the ao&e named 'etitioner e released on ail on furnishin% ail ond of Rs.1>,>>># with two sureties.
2*(21 1 De!emer, >1
Atique Khan v. The State Of Bihar55 rief1
The 'etitioner is a''rehendin% his arrest in a !ase re%istered for the offen!es 'unishale under Se!tions 13, 13<, 132, @G@, 1G, 1G@AF, 1G@AF AF, 2953"4! @>, @@, @@@, @31, @@, 3, 3@G of the Indian 9enal Code. The a!!usation is of throwin% the ri!ks durin% Ram 4awami 9ro!ession when assault was made and sho' was 'ut on fire. It is sumitted " learned !ounsel for the 'etitioner that the 'etitioner was not named in the ;.I.R. ut susequentl" his name s'ran% u'on s!annin% the &ideo of the 'ro!ession. A statement has een made in 'ara%ra'h no.1 of the 'etition that the 'etitioner has no !riminal ante!edent. Considerin% the aforesaid fa!ts, it was orall" ordered that the 'etitioner, ao&e named, e released on ail in the e&ent of arrest or surrender efore the learned !ourt on furnishin% a ail ond of Rs.1>,>>>#Ten ThousandF with two sureties of the like amount.
/7 Criminal ?iscellaneous No.4/-3 of -54. // Criminal ?iscellaneous No.7-" of -54-. Page 9 -7
2*((1 = Au%ust, >11
Star ndia !rivate "imited v. #nion of ndia5$ Facts1 Star India 9ri&ate imited !hallen%es an order dated @ rd3th Mar!h >1> issued " the Ministr" of Information and )road!astin%, 0o&ernment of India administerin% a warnin% to Star 9lus Channel S9CF to stri!tl" adhere to the 9ro%ramme Code 'res!ried under the Cale Tele&ision 4etworks Re%ulationF A!t, 122G and the Rules framed thereunder. 7n @rd 7!toer >>2, the IO) Ministr" issued a show !ause noti!e to Star India 9&t. td. statin% that it had !ome to the noti!e of the IO) Ministr" that the tele!astre#tele!ast of the e'isode of the fi!tional 'ro%ram titled *Sa'na )aul -a # )idaai* on =th 7!toer >>2 *!ontained o$e!tionale and dero%ator" remarks a%ainst Maharishi 8almiki ha&in% the effe!t of mali%nin% an indi&idual who is 'art of the so!ial and moral life of lar%e se!tions of the !ountr"*. It was stated in the show !ause noti!e that *the words used in the aforesaid e'isode also a''ear to e !ontem'tuous of reli%ious %rou's and 'romote !ommunal attitudes. The words used in the aforesaid e'isode also a''ear to e defamator" and are likel" to en!oura%e &iolen!e*. SI9 re'lied to the show !ause noti!e where it was stated that the referen!e to Maharishi 8almiki had to e seen in the !onte+t of the serial and !ould not e taken out of !onte+t and anal":ed. The 'ro%ramme had to e &iewed in totalit" and then $ud%ed whether it aided " the 9C or not. It was stated that the referen!e to Maharishi 8almiki was 'urel" with a &iew to e+em'lif" a 'erson who o&er!ame %reat odds to a!hie&e a 'la!e in histor". It was inter alia stated that an arti!le was 'ulished in the 9un$a -eshri alandhar edition on 11th 7!toer >>2 " SI9 in whi!h it had issued an 5a'olo%"6 statin% that its intention was not to offend the 8almiki sama$ " the tele!ast of the said e'isode of the 'ro%ram in question and further stated that *we res'e!t Sa%e 8almiki and deri&e ins'iration from him*. Inter alia, it is mentioned that the Res'ondent took !o%ni:an!e of a 'ress re'ort dated 1th 7!toer >>2 in whi!h it was stated that the Chief Minister of 9un$a had asked the state
/" @. P. ,C1 3--545. Page 9 -/
'oli!e !hief to in&esti%ate the in!ident of 5lasphe$y 6 " the S9C with referen!e to the dero%ator" remarks towards Maharishi 8almiki in the 'ro%ram in question. The Res'ondent then immediatel" !alled for the re!ordin% whi!h was tele!ast on =th 7!toer >>2. There was a !on&ersation etween the two a!tors in whi!h the followin% dialo%ue in Hindi is s'oken/# @Ale*h says= *ya main aapse *uch pooch sa*ta hoon mama8i? 2ama= @haan bil*ull@ 5 5 5 Ale*h= Bwo main 4almi*i *i *ahani padh raha tha55mama8i *ya sachme wo e* chor se saadhu baba ban 'aye55*oi aadmi itna badal sa*ta hai *ya? 2ama smiles as he e7plains= 4almi*i 8i *e paas himmat thi555 aatm4ish4aas tha beta555 8is*e man me aastha aur pa**a 4ish4aas ho use *oi nahi ro* sa*ta555 ere Ale*h listenin' to all of this 4ery carefully and re'isterin' in his mind as if he also upto somethin' li*e that55555e nods his head and says= @achha@ sama8h 'ayaD555(he loo*s at %adhana and says) thee* hai ab main %adhna *o phone deta hoon5@
-udge$ent1 The Court oser&ed that When the ao&e s!ene is &iewed in the !onte+t of the theme of the serial and the entire e'isode, it is diffi!ult to a''re!iate the !on!lusion drawn " the Res'ondent that it !ontains an" dero%ator" remarks a%ainst Maharishi 8almiki or mali%ns an indi&idual or the words used are !ontem'tuous of reli%ious %rou's or 'romote !ommunal attitudes and *are likel" to en!oura%e &iolen!e*. In an" e&ent, it is not 'ro'er to take one word out of !onte+t to determine if it is dero%ator" or defamator". It has to e &iewed in the !onte+t and settin% of the e'isode in whi!h the dialo%ue o!!urs. The e+!han%e unders!ores and e+tols the &irtues of the 'oet sa%e who is a!knowled%ed as the author of the Rama"ana. It !ould hardl" e said to mali%n or slander an indi&idual or a %rou' mu!h less en!oura%e or in!ite &iolen!e, or !ontain an"thin% threatenin% to the maintenan!e of law and order. ;or the aforementioned reasons, the Court finds the im'u%ned warnin% dated @rd3th Mar!h >1> issued " I O ) Ministr" to the 9etitioner to e unsustainale in law. It was, thus, set aside. The writ 'etition was allowed.
Page 9 -"
1 A'ril, >11
%a&amala v. State Of Kerala5' Facts1 ;rom ;IR it is seen that De&a'rashnam was !ondu!ted at Saarimala Tem'le from 1=.>=.>>= to 12.>=.>>= in whi!h it was alle%edl"F re&ealed that 'etitioner, who as 'er !ustom 're&ailin% in that Tem'le is 'rohiited from enterin% the san!tum#san!torium, &iolated the said !ustom " enterin% the said 'la!e and tou!hin% the idol of ord A""a''a and defiled the Tem'le and there" !ommitted offen!e 'unishale under Sec.295 of the I9C. It was alle%edl"F dis!losed in the De&a'rashnam that two a!!used, for makin% fame for themsel&es, !onta!ted 'etitioner and %ot a messa%e sent " her " fa+ that she had done as ao&e stated and that she is 're'ared to make 'enan!e for that. The said !ondu!t a!!ordin% to the then 9resident of the Tra&an!ore De&aswom )oard whi!h !ontrols administration and mana%ement of the Tem'le was intended to defile the Tem'le and there" in$ure the feelin%s of worshi'ers of ord A""a''a. It was also alle%ed that for the said 'ur'ose, a!!used 1 to @ entered into a !riminal !ons'ira!" and !ommitted offen!es under Se!s.2G and 1>) of the I9C. ud%ement is not made "et.
2*(*1 = A'ril, >1>
!rasad %a(ob )#s *iti+en, v. State Of Kerala5rief1 /$ OP,Crl.1.No. 4- of -544,B1. /3 Crl.Re+.Pet.No. 44-3 of -545. Page 9 -$
7ne 9.. Samkutt" Sam a!oF of 9unnakkal famil" in Chun%a''ara in 9athanamthitta Ditri!t ha&in% the 'en name Shamu Coimatore was the author of a ook titled Chin4ad Palam the in&isile rid%e to hea&enF. Samkutt" referred to ao&e died on #@# >>. A1 to A@ are his rothers and A3 is his son. The" are em'lo"ed aroad. AG is a 9astor who was residin% in the house of the de!eased. All the fi&e a!!used 'ersons elon% to the Christian Communit". 7n #@#>1> from 2.@> a.m. to .@> '.m. the a!!used 'ersons were attendin% the funeral of de!eased Samkutt" at the residen!e of A at Chun%a''ara. At aout 3 '.m. on #@#>1> !o'ies of Chin&ad 9alam authored " the de!eased were !ir!ulated amon% the Christians who had attended the funeral. The aforesaid ook !ontains im'utations a%ainst 9ro'het Muhammed Muhammed 4aiF de'i!tin% him as a womaniser who ke't !on!uines esides his wi&es for se+ual satiation. The )ook makes referen!e to the law re%ardin% the sharin% of 'lundered %oods " de!larin% that 1Gth of the oot" should %o to Allah and his messen%ers and the rest should %o to the 'lunders. There are !itations in the said ook suffi!ient to in!ite !ommunal feelin%s and to mali!iousl" insult the reli%ious feelin%s of the Muslims and 'romotin% enmit" etween two !lasses. 4inet" !o'ies of the ook were sei:ed from an Inno&a Car 'arked there elon%in% to A@ and in whi!h the a!!used 'ersons had !ome to Chun%athara. -o!humuhammed Rawther and who is the 9resident of the Muslim uma Ath, -ottan%al %a&e the first information statement efore the 7ffi!er#in#!har%e of 9erum'ett" 9oli!e Station to the effe!t that " !ir!ulatin% !o'ies of the ao&e ook the a!!used 'ersons had 'romoted feelin%s of disharmon", enmit", hatred and ill#will etween different !lasses on the %round of reli%ion or ra!e. Case was re%istered under Se!tions 13@, 13, 1G@ A and 295 " read with Se!. 132 I.9.C. Se!tion G>G F and @F I.9.C. and Se!tion 13 of the 9ress and Re%istration of )ooks A!t, 1<= were also added. All the G a!!used were arrested and were susequentl" %ranted ail on some !onditions. At aout =.@> '.m. on 3#@#>1> infuriated " the im'utations made a%ainst 9ro'het Mohammed in the ook Chin4ad Palam !ir!ulated in that area, !ertain Muslims of Chun%a''ara whi!h is an area thi!kl" 'o'ulated " MuslimsF unleashed &iolen!e resultin% in the 9erum'ett" 9oli!e re%isterin% a !ase for offen!es 'unishale under Se!tions 13@, 13, 13< and 3 read with Se!. 132 I.9.C. The )ook Sho' elon%in% to the de!eased who was the author of the ook was atta!ked " the Muslims who resorted to &andalism. 9oli!e sear!hed for the a!!used in the houses of their relati&es to dire!t the a!!used to a''ear efore the In&esti%atin% 7ffi!er as 'er one of the !onditions of ail, ut the" were nowhere
Page 9 -3
found. The !ounsel a''earin% for the a!!used were !onta!ted and the a!!used were dire!ted to a''ear efore the In&esti%atin% 7ffi!er at 1> a.m. on =#@#>1>. )ut the a!!used did not a''ear as dire!ted. A!!ordin%l", their ail order was set aside and the Court !an!elled the ail %ranted to the a!!used under Se!. 3@2 F Cr.9.C. And their 'etition a%ainst this order in the HonNle Su'reme Court was also dismissed.
Page 9 -
2**91 12 Au%ust, >>2
Biin Kumar Sin/h and Another v. State Of %harkhand50 Facts1 The 'etitioners and his famil" memers made it known to the 'uli! of the lo!alit" " de!larin% that 0oddess Chinna Mastika has een so mu!h 'leased that she would e showin% her hand e&er" da" at the time of Aarti. Su!h 'ro'a%anda was made with an intention to ha&e more %atherin% so that the" ma" ha&e more mone" whi!h the 'eo'le would e offerin% to the 0oddess. ;urther alle%ation was that the a!!used 'ersons used to dis'la" for a fra!tion of se!ond an artifi!ial hand made u' of 'lasti! and !laimed to e the real ord of the 0oddess. Thus, " ado'tin% su!h means, the" !heated the 'uli! at lar%e. 7n su!h alle%ation, !ase was instituted under se!tions 29%, 3> and 1>) of the Indian 9enal Code.
-udge$ent1 Here, in the instant !ase, the alle%ation is that the 'etitioners de!lared to the 'uli! that the" will e showin% hand of the 0oddess Chinna Mastika. This a''li!ation e&en if is a!!e'ted to e true, one would wonder as to how the said a!t has wounded the reli%ious feelin%s of the Hindus and, therefore, alle%ation never attra!ts offen!e under se!tion 2< of the Indian 9enal Code and hen!e, that 'art of the order where the !ourt refused to dis!har%e the 'etitioner from offen!e under se!tion 2< of the Indian 9enal Code was here" set aside. Howe&er, in the fa!ts and !ir!umstan!es, there has een 'rima fa!ie material for framin% !har%e under se!tion 3> of the Indian 9enal Code as it is the !ase of the 'rose!ution that the 'etitioners with the intention to ha&e more offerin% " the %atherin% made it de!lared to the %eneral 'uli! that the 0oddess Chinna Mastika would e showin% her hand and " that a!t, the 'etitioners a''ear to ha&e dishonestl" indu!ed %eneral 'uli! to deli&er the 'ro'ert" " wa" of offerin% !heated to the %eneral 'uli! and there" the trial !ourt has ri%htl" !ome to the !on!lusion that there a''ears to e am'le material for framin% !har%e a%ainst the 'etitioners under se!tion 3> of the Indian 9enal Code.
2**51 / @.P. ,Cr.1 No.-- of -553. Page 9 5
Se'temer, >>G
Su1ato Bhadra v. State Of 2est Ben/al$ Facts1 )efore 'ro!eedin% further, we must note the rele&ant fa!ts relatin% the ook * 9wi*handita* written " Taslima 4arseen of )an%ladesh whi!h was 'ros!ried in India, these are/ 1. That the ook *Dwikhandita* is the third &olume of the autoio%ra'hi!al trilo%" of the author( . That she, herself a woman, had written the alle%ed offendin% 'art in the !onte+t of the status of women in the so!iet" in )an%ladesh emanatin% from ado'tion of Islam as a State reli%ion( @. That she was e+'ressin% her own &ie and 'oliti!al thou%hts'hiloso'h" in relation to the Constitution of )an%ladesh of whi!h se!ularism was one of its salient features sin!e de&iated from susequentl", " the State " ado'tion of Islam a s a State reli%ion doin% awa" with the se!ularism to suit the 'arti!ular 'ur'ose of the 'arti!ular ruler( 3. That the author has een in e+ile from her own motherland for some of her earlier writin%s that she understood to e the result of reli%ious fundamentalism a%ainst whi!h she was unale to otain an" 'rote!tion from the State ma!hiner" in her own motherland( G. That she was attem'tin% to e+'ose the 'oliti!o reli%ious situation affe!tin% the so!iet" as a whole 'ushin% the 'osition of women into an asolute insolent and aominale e+isten!e dominated " the male !ounter'arts in the name of reli%ion aided and aated " the State ma!hiner" %uided " the State reli%ion( =. That she was attem'tin% to strike hard to deli&er a sho!k in order to awake the slee'in%dormant !ons!ien!e of the 'eo'le of )an%ladesh to restore se!ular demo!ra!" initiall" sus!ried " the Constitution of )an%ladesh and eradi!ate the maladies of the so!iet" and for 'a&in% the wa"s for eman!i'ation of the women and the so!iet"( . That she had 'ointed out to the darkness efallin% the State of )an%ladesh and the so!iet" on a!!ount of reli%ious elief " 'ointin% out the deilities and ill effe!ts
"5 ,-55/1 CALLT 7" >C. Page 9 4
inherent in the reli%ious elief o''osed to the true reli%ion 'rea!hed " Islam, a reli%ion of humanit" and mankind. The intention of the author, who herself 'rofess the same reli%ion, has to e %athered from the !onte+t of the ook itself whi!h is ar%ued to e an e"e#o'ener 'ointin% out her fin%ers to the in!onsisten!" in the Hol" S!ri'tures, rel"in% on histor" and other authenti! io%ra'hies of the Hol" 9ro'het and the Hol" -oran and other Hol" S!ri'tures. It is also to e noted that the 'assa%e was written in the !onte+t of the 'osition of women in )an%ladesh ein% a''raised in the li%ht of ado'tion of the State reli%ion at the !ost of se!ularism and demo!ra!" with different standard for women and men. That the author is a feminist attem'tin% to eman!i'ate the feminine of her own !ountr" and to se!ure for them a res'e!tale 'osition in the so!iet" in )an%ladesh and ea%er to the restoration of demo!ra!" and se!ularism o''osed to the reli%ious fundamentalism in )an%ladesh so as to enale her to !ome a!k to her own motherland, the ur%e whereof is a''arent in &olumes from her writin%s. Her entire effort in the ook is dire!ted towards the situation in )an%ladesh alone. The ook was 'ulished " a 'ulisher in West )en%alIndia in )en%ali lan%ua%e whi!h was 'ros!ried " the 0o&ernment of West )en%al under Se!tion 2G of the Cr. 9C read with Se!tion 295" of the I9C. The 'etitioner filed the 'etition under Se!tion 2= of the Cr. 9C re%istered to !hallen%e the said notifi!ation re%ardin% forfeiture of the ook in question as under the 'ro&ision of law, Se!tion 2= was the enalin% se!tion for an" a%%rie&ed 'art", ha&in% an" interest in the ook in question to !hallen%e a noti!e of forfeiture made under Se!tion 2G of the Cr. 9C.
-udge$ent1 The author did not 'en down the ook whi!h is written in the !ir!umstan!es and the a!k%round of the !ountr" of her ori%in # with delierate and mali!ious intention of outra%in% the reli%ious feelin%s of an" !lass of Citi:en of India and thus, the ook !annot e rou%ht under the amit of Se!tion 2GA. Therefore, in the instant !ase Se!tion 2GA is wholl" ina''li!ale. In addition it reiterated that the theme of the ook is not an" reli%ion nor the role of its 9ro'het, rather the writer laments and !ondemns the ha'less !ondition of women in a male dominated 'atriar!hal so!iet" in the !ountr" of her ori%in whi!h is theo!rati!. Also, there were no re'orts of an" !ommunal troule, tension or disharmon" of an" nature amon% &arious !ommunities in India after the 'uli!ation of the ook in 4o&emer, >>@. Susequentl", it had %one in for a re'rint in the same month. This %oes to show that the !iti:ens of this !ountr" and es'e!iall" the followers of Islam whose sentiments, it is alle%ed the ook had hurt, are res'onsile and mature enou%h to e+amine the ook in the ri%ht
Page 9 -
'ers'e!ti&e, i%nore an" !omments, whatsoe&er, in a ook " a sin%le indi&idual on their 9ro'het whom the" hold in hi%hest re&eren!e. Thus, as the ook written in the !onte+t of authors !ountr" of ori%in does not deliberatel& and mali(iousl& intend to outra/e the reli/ious feelin/s of an& (ommunit& of ndia and
sin!e the theme of the ook is the ha'less !ondition of women in that !ountr", in our &iew, it does not !ome within the amit of Se!tion 2GA of the I9C and, therefore, the order of forfeiture under Se!tion 2G of the Code of Criminal 9ro!edure, 12@ was unwarranted, !annot e sustained and was, therefore, set aside.
Page 9
CONCLUSION Hinduism, IndiaNs dominant reli%ion, does not ha&e the !on!e't of las'hem". The Indian 9enal Code does 'unish 5hate s'ee!h6 insults or attem'ts to insult the reli%ion or the reli%ious eliefs of an" !iti:en with delierate and mali!ious intention to outra%e their reli%ious feelin%sF. These laws are a''lied to all reli%ions in!ludin% Hinduism, Sikhism, Christianit" and Islam. When dro's of water e%an to fall from the feet of a !ru!ifi+ in >1, elie&ers thou%ht that it had hol" 'owers. Sanal Edamaruku, 'resident of the Indian Rationalist Asso!iation, su%%ested that the sour!e of the water to e leakin% toilet draina%e. 5ItNs a !ase of mira!le# mon%erin%,6 Edamaruku told A;9 from his home in 4ew Delhi. 5An" kind of mira!le# mon%erin% is ultimatel" to %et mone" and 'ower.6 A!!usin% him of s'readin% 5anti#Catholi! &enom6 durin% tele&ised deates on the !ru!ifi+, outra%ed reli%ious %rou's in Mumai ha&e filed 'oli!e !om'laints that !ould see Edamaruku $ailed for u' to three "ears under IndiaNs las'hem" law. 4ow Edamaruku wel!omes the mo&es a%ainst him as 5an o''ortunit", not a thin% to e afraid of6, he said, and is !hallen%in% IndiaNs las'hem" law. The le%islation ans 5delierate and mali!ious a!ts intended to outra%e reli%ious feelin%s of an" !lass " insultin% its reli%ion or reli%ious eliefs6, a rule Edamaruku elie&es runs !ounter to freedom of e+'ression. The fil$s of #eepa +ehta '(
Indian#orn film#maker, Dee'a Mehta, now li&in% in Canada, is est known for her trilo%" ire! arth and 2ater . ire shows two "oun% women tra''ed in lo&eless marria%es who turn to ea!h other for sola!e and e!ome lo&ers. The film was initiall" 'assed " the Indian !ensors, ut s!reenin%s rou%ht &iolent 'rotests. Hindu e+tremists in 'arti!ular, !aused the film to e withdrawn. Dee'a Mehta and her su''orters demonstrated for freedom of e+'ression. 7ne Hindu !riti! o$e!ted to the main !hara!ters ein% %i&en Hindu names, and said he would withdraw his o$e!tion if the" had Muslim names. When Mehta was aout to start filmin% 2ater , the third film in the trilo%", she learned that ,>>> 'rotesters had stormed the studio, destro"in% and urnin% the main film set and throwin% the remnants into the 0an%es. Cinemas were also urnt down " Hindu 'rotesters. 2ater was e&entuall" filmed in
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Sri anka. Dee'at MehtaNs most re!ent film, an ada'tation of Salman RushdieNs 2idni'htEs Children, a )ooker 9ri:e#winnin% no&el aout )ritish !olonial India and 9artitionF, will e released this "ear. It was filmed in Sri anka, in the utmost se!re!" and under false names, in an effort to kee' the fundamentalists at a". 5HeNs %ot the Muslims,6 sa"s Mehta, wr"l" assessin% the field of 'eo'le who mi%ht want to sto' this film. 5And IN&e %ot the Hindus.6 = Two weeks into the shoot, MehtaNs husand and 'rodu!er, Da&id Hamilton, re!ei&ed noti!e from the %o&ernment sa"in% 'ermission to film had een withdrawn after dis'leasure was e+'ressed " Iran. Mehta made a 'ersonal a''eal to the Sri ankan 9rime Minister, and the filmin% !ontinued. The ))C tried to make 2idni'htEs Children into a fi&e#'art miniseries in 122, ut the %o&ernment withdrew 'ermission for that 'rodu!tion after Muslim 'rotests.
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