Roast not AIB, but the law that protects hurt sentiments

First it was Vinod Tawde, Maharashtra's minister for education and cultural Affairs, who decided that the AIB roast deserves a criminal investigation. Then it was an obscure group of Mumbai Catholics who made sure that they appeared sufficiently menacing so as to coax a grovelling apology.

Now that the efforts at persecution are gathering steam, what with some still pressing ahead for proper prosecution of the "offences" committed by the actors, it becomes imperative to go beyond either feting or "roasting", and look at why and from where this brigade of the offended is drawing strength. Because, none of those who claim to be outraged and offended are indulging in vandalism and allied acts - the typical modus operandi of bigots. Rather, they are claiming to have taken the perfectly legal route. They aren't wrong, because it is indeed the law which provides a strong handle to use against those one dislikes and get them to shut up.

The law and its genesis

It is Section 295A of the Indian Penal Code which mandates that anyone who hurts or outrages the religious sentiments, or insults the religious beliefs of an individual or a class of persons, must face criminal charges, and if convicted, face imprisonment and fine. Needless to say, the wording of the section is so vast that anyone can approach the police, just because he claims that his religious beliefs and sentiments have been attacked. Ideally, the police, before commencing investigation and making arrests, should have some way to gauge the reasonableness of a complaint, but when it comes to matters of faith and belief, we know how inflammatory things do get. Moreover, since "insult or hurt or outrage religious sentiments" is so nebulous a concept, such ascertainment becomes impossible. But, was the law's purpose to become one of the favourite tools of the intolerant and zealous, self-proclaimed custodians of whatever they consider as sacrosanct?

History proves that the answer is clearly in the negative, and an assertive one at that. Section 295A was not a part of the Indian Penal Code when it was enacted in 1860. It owes its birth to a tumultuous period in 1927 when almost the entire part of north India was about to be engulfed by the flames of communal violence. "Rangeela Rasool", a scurrilous pamphlet on the personal life of Prophet Mohammed was being widely circulated. The creator, Mahashe Ram, was acquitted by the Lahore High Court in 1927. The court held that he was not guilty of the offence under Section 153A (which dealt with deliberately promoting religious hatred among different communities) because although his satire was terribly offensive, he didn't intend to spread communal hatred. Muslims were livid, and Mahashe Ram was subsequently murdered. It was then, to prevent things from spiralling out of control that the British administration enacted 295A. But the Select Committee which drafted the provision gave a clear warning- that it was not to be used against writers and other people from creative fields who would heap insults on religion and religious beliefs, but only with the objective of facilitating some form of social reform. Hence, the terms "deliberate" and "with malicious intent" feature in the law.

Thus, those "law-abiding citizens" who are claiming to follow democratic processes are clearly being economical with the truth, and specious. They are deliberately, and maliciously, misusing the law.

Courts aren't blameless, either.

It is justified, and indeed essential, to challenge the very concept of having laws which seek to protect religious sentiments, because more often than not, they strike at the heart of a secular democracy where freedom of expression happens to be a fundamental right. But since Parliament seems determined to retain the law, it falls upon the courts to ensure that there are proper mechanisms in place, which can check the misuse.

The first step would be to "read down" the law, that is, set an interpretation which would hedge the malicious construction of words such as "insult", "outrage" and the like, the scope and degree of which seems beyond the pale of reasonable definition. It is here that the Supreme Court failed. In its decision in the Ramji Lal Mody case, a Constitution Bench upheld the validity of the provision, and declined all pleadings to put in place certain safeguards to prevent misuse.

The second step would be to emphasise that only those acts, which are clearly malicious and deliberate, are penalised. But instead of doing that, the Bombay High Court, in the Gopal Vinayak Godse case ruled that it would be legal to presume, at first blush, that the words were intended to hurt religious sentiments.

Perhaps it would be more productive to take a break from blaming or valourising the comedians and train our guns on the law which is in dire need of radical reform, if not repeal.