Blasphemy Law: Sedition in disguise

Various quarters have been calling for a law on blasphemy in India. Blasphemy is the malicious reviling of God or religion as defined by Stephen on Criminal Law. Various courts have interpreted targeted hatred toward a particular religion and even concluded that Blasphemy is a sin as well as a crime. This was the position in the 19th-century courts. We live in the 21st century and to take this view as it existed 200 years ago is nothing short of regressive jurisprudence.

The European Court of Human Rights, which has to date decided the most, particularly on religion, has ventured only as far as the breach of peace versus the right of expression. Even when deciding on Otto-Preminger-Institut v Austria, 1993, the first-ever case on blasphemy, the court was worried about ‘incitement to hatred’ and the repercussions on peace versus the individual’s rights to freedom of opinion.

Blasphemy must be distinguished from targeted hatred. The latter carries an element of a criminal mindset before making a particular speech or act, whereas the former can very well be an innocent utterance. The courts in Europe have been grappling with this issue since 1993, while India had the Sedition law as a cover. Blasphemy laws are not found in a secular democracy because any secular country that intends to criminalise blasphemy is giving into the ideology of religion and God. This fundamental paradox stands in stark contrast to any blasphemy law.

Till date, India’s sedition law was doubling up as a blasphemy law and was performing more than it should. Time had come to shun away the 19th-century law but to bring in a law for blasphemy not only should be shunned from even mulling, but also be introspected as to how varying it would be from the secular principles of the constitution.

While the Es v Austria case decided in 2018 by the European Court of Human Rights (ECHR) recognised the principle that the dignity of a sect of people and their faith should be respected, it carried more weight to the peace of the society; freedom of expression has its own limitations. The larger good for the society and peace must prevail over all the rights, as per the ECHR. The United Nations proposes a risk model combining elements of the speaker’s position, their intent and the context. Contextualisation of blasphemy, again, is a paradox as it may or may not check the box of hurtful remarks made with intention. In search of a law for blasphemy, we may very well be landing on one that derogates the international principle of freedom of expression.

The sedition law in India was particularly cringe-worthy for its ability to adorn colour to any act or speech made by a person and such colouring of free speech is against the principle that malicious intent has to be proven before an assertion is made. The same evaluator mechanism will lie against a law for blasphemy if all our legislators would want to create a legal quagmire.

The IPC Section 351 is replete with the penalisation of words and gestures which contain malicious intent, however, the punishment is a mere three months of imprisonment or a fine. This is weak for a malafide assault on a religion or a class of people. The ‘deep-criminalisation’ of this section to turn it on its head and make it to be one of blasphemy would mean that verbal assault, which does not carry a religious hue, would be let go easily in the society, while the same assault of words with a religion tagged to it would make it a grave offence. This is neither equitable, tenable nor can be accepted in a secular society. The propagators of the blasphemy laws need a lesson in law and sociology to understand the repercussion that they could cause to the future of jurisprudence.

(The writers are professors of International Law)