In justifying its decision to withdraw Wendy Doninger’s book, The Hindus: An Alternative History , Penguin apportioned blame to the Indian Penal Code, in particular Section 295A, which it claimed makes “it increasingly difficult for any Indian publisher to uphold international standards of free expression without deliberately placing itself outside the law.” Section 295A makes punishable with imprisonment any speech which maliciously insults or attempts to insult religion or the religious beliefs of any class of people. Whether Penguin could have offered more impedance to the threat is a question which will continue to be hotly debated, but the role that Section 295A played in causing a perceived hazard of imminent prosecution motivating Penguin’s decision cannot be denied. As Section 295A continues to be invoked for every cold and catarrh, it chills free speech by obliging people to self-censor out of the fear of prosecution.
In a legal system such as ours, the fear of criminal prosecution — often in a remote court in a far flung corner of the country — is sanction enough. Even the confidence of being vindicated at the end of a trial does in no way change that. It is in the nature of self-censorship to spread itself out in an area much wider than that strictly targeted by the censoring penal provision. The reason for this is straightforward. When a person deliberating on publishing her view — which is likely to cause offence — on a matter, pits the potential benefits of its publication against its hazards, the felicific calculus would overwhelmingly tilt on the side of self-censorship; and dictate erring on the side of safety. The lopsidedness of the calculus will be more starkly evident when it comes down to choices over retaining discrete ideas or severable portions of text in a manuscript. See the text not as an abstract whole but as an aggregation of ideas and the tyranny of this cost-benefit calculus would stand out. An offending line or paragraph might be seen as just not worth the hassle of a prosecution. Self-censorship may seem the only prudent option. The temptation to choose silence — especially when it comes down to severable ideas and text — is just too great to be trumped by anything short of heroic adherence to principle. Introducing the publisher into the mix adds another wrinkle to the problem: collateral censorship. The incentives of the publisher are not the same as that of the author. Even if the author heroically resists self-censorship and hands over the manuscript in its entirety to the publisher, the publisher must now put it through its own felicific calculus. Here, nothing short of commercially blind altruism is likely to trump the calculus when it comes to assessing text that is even remotely offensive. Such collateral censorship is likely to spread itself out even wider than self-censorship. We have on our statute books multiple provisions criminalising free speech that demand such heroism from authors and publishers. On this occasion let us train our focus on just one, namely, Section 295A and examine whether it merits retention in the statute books, in its present form.
Relevant section and scope
Section 295A was absent from the Indian Penal Code of 1860 in its original form. It was added much later in 1927. The series of events leading to the enactment of the provision began in 1924 with the publication of a pamphlet Rangila Rasula , arthat araba ke apaigambara ka eka siksaprada itihasa by Mahashe Rajpal criticising the personal life of Prophet Mohamed. Rajpal claimed to do it out of a spirit of public reform. Rajpal was charged under Section 153A with intentionally promoting or attempting to promote feelings of enmity or hatred between “his majesty’s subjects.” He pleaded not guilty. Reversing the trial court’s conviction, the Lahore High Court in Rajpal vs. King Emperor (1927) held that although the pamphlet was indeed a “scurrilous satire on the founder of the Muslim religion” he did not find that it was meant “to attack the Mahomedan religion as such or to hold Mahomedans as objects worthy of enmity or hatred.” The court added that Section 153A “was intended to prevent persons from making attacks on a particular community as it exists at the present time and was not meant to stop polemics against deceased religious leaders however scurrilous and in bad taste such attacks might be.” Placing a wider interpretation on the section, the court feared, would lead to a “historical work in which the life of the prophet was considered and judgment passed on his character by a serious historian” coming within the ambit of the penal provision. The judgment led to a feeling of resentment among the Muslims and there were fears that the already surcharged communal atmosphere of North India could get out of hand. Wanting to diffuse tensions, the British Governor of Punjab, Sir Malcolm Hailey assured the Muslim community that an amendment to the penal code would be considered, failing which he acknowledged the real possibility of “endless trouble.” It was under these circumstances that the draft Section 295A made its way into the National Assembly.
The debates on the proposed amendment in the assembly make it abundantly clear that the provision was viewed as a somewhat retrograde step which was rendered expedient only by the urgent need to cool down tempers. The debates also reveal that members were anxious to circumscribe the proposed amendment within a very narrow remit. Indeed, some of the members were strikingly prescient about some of the problems that such a provision could give rise to. Lajpat Rai was anxious that the Assembly ensures that ‘bona fide criticism, historical research and all that leads to the interpretation of religious texts in such a way as to lead to progressive reform in social matters” not be affected by the proposed measure. This sentiment was echoed by M.A. Jinnah. B.P. Naidu thought this “panicky legislation” had the potential to deal a “death-blow to religious and historical research.” Hari Singh Gour, a celebrated jurist who later went on to become the vice chancellor of Delhi University, pointed out that this was just an anti-blasphemy law though it did not hold itself out as one, which had the potential to stifle research and calls for reform. Various amendments meant to circumscribe the scope of Section 295A were discussed, but ultimately it was thought that the requirement of “deliberate and malicious intent” which was an ingredient of the offence under Section 295A was enough to allay all the fears. Jinnah, who served on the select committee, believed this was enough to protect an “honest man.” The Home Member, J. Crerar, argued that the kind of individual most likely to be prosecuted under Section 295A would be “some obscure and scurrilous scribbler writing from some obscure den or pot-house in a bazaar.”
Protecting scholarly work
How did a provision which was meant for scurrilous scribblers end up chilling historical works by respected scholars? The answer lies in the fact that self-censorship and collateral censorship spread themselves much wider than Section 295A purports to. Whether or not a work is “deliberate or malicious” will only be established at the end of a prolonged and painful court proceeding. That prospect is chilling enough to let self-censorship and collateral censorship run their course. Countering such a chilling effect requires ensuring that the machinery of the criminal law is not set in motion against the kind of historical and scholarly works Lajpat Rai, M.A. Jinnah and H.S. Gour were anxious to insulate. The mere assurance that such expressions of free speech will be vindicated after a trial will just not suffice, as experience has painfully demonstrated. One way of achieving this would be to provide that historical and scholarly works be given a blanket immunity from the operation of Section 295A. This does not mean that a “deliberate and malicious” attempt to outrage religious feelings should go unsanctioned. There will still remain a legal obligation against such acts. The appropriate remedy in such cases, however, should be the invocation of tort law, or what is also known as the law of civil wrongs, at the instance of a representative action by the Advocate General of the state where the work is published. The tortfeasor (wrongdoer) here would have to pay monetary damages to the government. A representative action would ensure that multiple suits are not filed across the country with damages claims by several parties running into fancifully astronomical amounts. This course has the potential to ensure that while deliberate and malicious hurting of religious beliefs continues to be a legal wrong, it does not unduly chill free speech. If criminal law is the index of a civilization, penal provisions which deter the scurrilous scribbler and the honest scholar alike reflect very poorly on ours.
(Shivprasad Swaminathan is associate professor, Jindal Global Law School.)