India's intolerant law, not Gurmeet Ram Rahim sent Kiku Sharda to jail

TV actor Kiku Sharda, who mimicked a scene from a film starring Dera Sacha Sauda chief Gurmeet Ram Rahim Singh while performing in a popular comedy show, was arrested recently under Section 295A of the Indian Penal Code (IPC) for outraging the "religious feelings" of his followers.

With Section 295A leaving a trail of such outrageous cases against actors, authors, academicians, cartoonists, artists and others crossing the line while purportedly exercising their freedom of speech and expression, there is a need for a relook at the colonial-era provision inserted in the 1860 penal code in 1927.

Though such a provision has its utility as a safety valve to preserve harmony in a multi-religious society by sanctioning penal action against those attempting to disturb peace, the broad ambit of Section 295A - which is non-bailable and does not recognise even truth as a defence - may have made it a powerful tool in the hands of the intolerant lot.

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

Section 295, which has been the Indian version of anti-blasphemy law since its introduction during the colonial rule, not only continues even after blasphemy being abolished in the UK but stands fortified with favourable precedents in the form of judicial decisions only making it a graver offence.

While Section 295A is yet to ring the alarm bells despite having a chilling effect on freedom of speech and expression, the trial in the UK of the editor of Gay News on charge of blasphemous libel in 1977 - the first since 1922 - led to the abolition of the common law offence of blasphemy from the country.

The law commission in the UK got down to review the law in wake of the Gay News case and came up with a report in 1985 recommending repeal of blasphemy - which was finally abolished in 2008. The law panel also explored introduction the offence of "outraging religious feelings" (like Section 295A) to fill in the vacuum but finally recommended against any such move.

By the time the first case of blasphemy came in the UK after the insertion of Section 295A in the IPC, India had already put to trial a large number of cases. The law, which even hounded painters like MF Husain, further strengthened its grasp with a Constitution bench of the Supreme Court upholding its constitutional validity in 1957.

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

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

In the 1980s, the Kolkata High Court entertained and issued notice on a writ seeking forfeiture of all copies of the Quran as it allegedly insulted all religions except Islam and its publication, therefore amounted to commission of offence under Section 295A.

Though the court finally dismissed the petition filed by one Chandanmal Chopra, the arguments recorded in the May 1985 judgment shows that the government had to rely on provisions in the Constitution to escape the wide net of Section 295A.

In fact, the UK law commission had rejected the proposal for adoption of a similar provision stressing that "this possible offence, however drafted, would either be unavoidably wide or would raise substantial difficulties in practise".

The law panel was right. Given the Indian experience, the wide ambit of Section 295A has not spared even pure artistic and literary expressions and has often startled even the votaries of the provision with unintended consequences.

In an apt critique of Section 295A, noted historian David Nash said: "The definition of religion was 'forced' upon the ethnic and religious groups of India… That the Code has survived owes more to the forbearance of such groups than to the utility of the law."

He is probably right. It is on account of our tolerance that such an intolerant and restrictive law has survived for so long.