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Blasphemy and hate speech:
"Curbs on free speech are justified in the interests of social harmony"
In November 2012, two young women were arrested in Mumbai after one wrote a comment on Facebook
suggesting the city's response to the death of Shiv Sena leader Bal Thackeray had been disproportionate, and
her friend 'liked' the comment. The two women were first booked by the Palghar Police under Section 295A of
the Indian Penal Code (IPC) for 'deliberate and malicious acts, intended to outrage religious feelings or any class
by insulting its religion or religious beliefs'. They were also charged under Section 505 (2) of the IPC for making
'statements creating or promoting enmity, hatred or ill-will between classes', as well as Section 66 (A) of the
controversial Information Technology Act. The charges were later dropped, and two officers responsible for the
arrests were suspended for overreacting, but the incident raised broader questions about whether and to what
extent blasphemy and other forms of offensive speech should be curbed by the criminal law. Is it incumbent on
the state to police potentially hurtful comments and ideas in order to prevent friction between different religions,
castes and other groups in a diverse society?
While the religious aspect of the Facebook case always looked tenuous, there are numerous more
straightforward examples of blasphemy charges being brought under Section 295A. In 2004, the West
Bengal government sought to ban Taslima Nasreen’s autobiographical novel Dwikhandita under the section. In
2010, Kannada actress Jaimala was charged with having hurt religious sentiments when she entered the menonly Sabarimala temple in Kerala. Rationalist Sanal Edamaruku is currently facing charges of blasphemy for
debunking a miracle in a Roman Catholic church in Mumbai. Beyond India, there have been calls at the UN for
an international blasphemy law, following controversy over a film insulting Muslims. So whatever the merits of
these particular cases, is it right in principle that modern societies should maintain blasphemy laws? And what
about other curbs on free speech?
Like most democracies, India upholds free speech as an ideal, but has various laws against 'hate speech' that
might cause disharmony on the basis of ethnicity, class and caste as well as religion. While Article 295A goes
back to the British Raj, the IT Act and associated rules are very recent, reflecting concerns about threats to
social harmony in 21st century India. So must free speech be curbed to prevent abuse and offence, or should the
law back off from the hustle and bustle of religious controversy, political debate and online chatter in the
interests of freedom and democracy?
The debate in context:
The current law in India
Section 295A of the Indian Penal Code says, 'Whoever, with deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible
representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be
punished with imprisonment… which may extend to three years, or with fine, or with both.' Many critics insist this
contradicts Article 19(1)(a) of the Constitution, which guarantees freedom of expression, and Article 25, which
enshrines the fundamental right to freedom of conscience and free profession, practice and propagation of
religion. Nonetheless, other constitutional provisions allow for restrictions on free speech in the interests of
communal harmony and public order, and the Supreme Court ruled in 2007 that freedom of speech could not
be used as an excuse to criticise other faiths. While many see the Raj-era 295A as an anachronism in a
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modern, secular democracy like India, then, the question is not whether this particular law should be retained,
but whether any curbs on free speech are justified in the interests of social harmony.
Last year, for example, the Indian government framed new rules that require internet companies to remove
within 36 hours material deeemed 'ethnically objectionable, grossly harmful, defamatory or blasphemous'.
This builds on the provisions in the IT Act that were used in the Facebook arrests. In defence of these, Union
Minister for Information Technology Kapil Sibal insisted the law itself is sound, but in that particular case it was
misused by enforcement agencies. Nonetheless, critics argue abuses are inevitable because of the
subjective character of offence. Supreme Court lawyer and expert on IT laws Pavan Duggal notes that, 'neither
the Information Technology Act, 2000, nor the Information Technology Rules, 2011, define the word
"blasphemous". As such, the interpretation of the term "blasphemy" is left to subjective interpretation'.
Similar controversy concerns the phrase, 'grossly offensive or menacing in character', but when challenged on
how this would be defined, Sibal pointed out that both UK and US law use the exact same ‘menacing
character’ description. Indeed, supporters of hate speech legislation have argued that precisely because
offence is subjective in character, there must be room for subjective interpretation in the law. For example, UK
law defines a racist or religious incident as 'any incident which is perceived to be racist [or religious] by the
victim or any other person'. In this view, in the interests of social harmony, what is important is protecting people
from offence, regardless of the intentions of the 'perpetrator'.
Sacrificing freedom of speech to social harmony?
After the Facebook arrests case, Shiv Sena spokesman Sanjay Raut justified the police action against the two
girls, insisting, 'Shiv Sainiks were naturally upset at the misuse of the social media to post provocative
comments'. If the police overreacted in arresting the girls, presumably it was because they wanted to preempt
any trouble. In the event, apart from some relatively minor violence, Mumbai did not descend into chaos,
suggesting social harmony may be more robust than the police feared. Nonetheless, even if they misjudged this
case, the law does currently allow for curbs on free speech in comparable circumstances.
Newspaper columnist Kushan Mitra points out that in theory, 'someone, anyone, can say [an article] "hurt" his
or her sentiments when posted online and can force it to be removed'. The danger then is that, far from
maintaining social harmony, such laws encourage competitive offence-taking. One critic complains that a similar
law in Scotland, meant to prevent religious sectarianism among football fans, has led to tit-for-tat complaints
about abusive language, and actually increased tensions between the fans. In the Indian context, Santosh
Desai describes this tendency to get insulted and demand redress as 'a reverse form of bullying'. If the state
responds to such demands by censoring the offending speech, it creates an expectation that people have a right
not to be offended, with potentially disastrous consequences for freedom of speech and open debate.
Supporters of free speech argue that it is the foundation of all liberty, including freedom of conscience and
religion, and that it requires tolerance of offensive or dissenting views.
Supporters of curbs on offensive speech insist that without them, abusive comments and slander can fuel
discord in society. In August 2012, amid tensions over deadly ethnic violence in Assam, the Indian government
blocked several websites, Twitter accounts and news portals, claiming they were inciting communal hatred.
Nonetheless, while most countries have laws to prevent the incitement of violence, their remit is typically far
more strictly circumscribed. For example, the constitutionality of such laws in the United States is subject to the
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so-called 'clear and present danger test'. In blocking whole websites and user accounts, the Indian
government was not responding to a specific threat of imminent violence, but clamping down on the expression
of potentially inflammatory views – arguably much as the Mumbai police had done in the Facebook case.
Opposing this move, US-based lawyer and campaigner Mishi Choudhary argued, 'You cannot censor your way
to public tranquility'. It was also pointed out that some of the first people to be censored were critics of the
government, highlighting the danger that such curbs can be abused for political purposes. Ultimately, though,
the question is whether the prevention of offence and disharmony must trump absolute free speech, or whether
social harmony is better served by toleration of offensive views.
Essential Reading:
Argument – Should hate speech be a crime?, Joyce Arthur vs Peter Tatchell, New Internationalist, December
2012
http://www.newint.org/sections/argument/2012/12/01/is-hate-speech-crime-argument/
Thou shalt not blaspheme, by Hemchhaya De, Telegraph, 5 December 2012
http://www.telegraphindia.com/1121205/jsp/opinion/story_16275811.jsp
Section 66(a) of the Information Technology Act needs to be changed, Ayeshea Perera vs Arun George, First
Post, November 2012
http://www.firstpost.com/debates/section-66a-of-the-information-technology-act-needs-to-bechanged_opinion-163.html
What’s Wrong With Blasphemy?, by Andrew F March, New York Times, 25 September 2012
http://opinionator.blogs.nytimes.com/2012/09/25/whats-wrong-with-blasphemy/
What is sedition? Is Cartoonist Aseem Trivedi really guilty?, OneIndia.in, 11 September 2012
http://news.oneindia.in/2012/09/11/corruptions-cartoons-sedition-is-india-really-shining-1068702.html
Between faith & freedom, by Santosh Desai, Times of India, 5 February 2012
http://blogs.timesofindia.indiatimes.com/Citycitybangbang/entry/between-faith-freedom
For
Facebook arrest row: We support police action against women, says Shiv Sena, NDTV, 20 November 2012
http://www.ndtv.com/article/india/facebook-arrest-row-we-support-police-action-against-women-saysshiv-sena-294784
Kapil Sibal wants law to stop social media abuse, Times of India, 22 August 2012
http://www.indiatimes.com/internet/kapil-sibal-wants-law-to-stop-social-media-abuse-37153.html
Obama and Clinton celebrate freedom to insult Islam, by Reza Pankhurst, New Civilisation, 13 September
2012
http://www.newcivilisation.com/home/2701/ideas-philosophy/obama-and-clinton-celebrate-freedom-toinsult-islam/
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Muslims Call For Blasphemy Law In UK And UN To Prevent Repeat Of Anti-Mohammed YouTube Film,
Huffington Post, 25 September 2012
http://www.huffingtonpost.co.uk/2012/09/25/muslims-blasphemy-law-uk-un-mohammedyoutube_n_1912004.html
Information as virus, by Santosh Desai, Times of India, 19 August 2012
http://blogs.timesofindia.indiatimes.com/Citycitybangbang/entry/information-as-virus
Against
66A has no place in free society, by Kushan Mitra, The Pioneer, 18 December 2012
http://www.dailypioneer.com/columnists/item/53033-66a-has-no-place-in-free-society.html
‘There is no right not to be offended’, by Mukhund Padmanabhan, The Hindu, 6 October 2012
http://www.thehindu.com/opinion/interview/there-is-no-right-not-to-be-offended/article3969404.ece
Changing the blasphemy debate, by Nadir Hassan, Express Tribune, 5 September 2012
http://tribune.com.pk/story/431934/changing-the-blasphemy-debate/
We and Section 295A of the IPC, by Narendra Nayak, Nirmukta, 7 May 2012
http://nirmukta.com/2012/05/07/we-and-section-295a-of-the-ipc/
India's god laws fail the test of reason, by Praveen Swami, The Hindu, 7 May 2012
http://www.thehindu.com/opinion/lead/indias-god-laws-fail-the-test-of-reason/article3391109.ece
Further reading
Social Media Prosecutions: Why I Have Published Guidelines Today, Keir Starmer, Huffington Post, 20
December 2012
http://www.huffingtonpost.co.uk/keir-starmer-qc/twitter-laws-social-mediaprosecutions_b_2328248.html
Girls' arrest: Kapil Sibal blames enforcement agencies, not the IT Act, IBN live, 20 November 2012
http://ibnlive.in.com/news/may-review-it-act-to-prevent-misuse-kapil-sibal-on-girls-arrest/306432-3244.html
8 'seditious' cartoons for which Aseem Trivedi was arrested, OneIndia.in, 2 November 2012
http://news.oneindia.in/2012/09/10/8-seditious-cartoons-for-which-aseem-trivedi-arrested1068065.html
Blasphemy: Time for Muslim soul searching, by Hamid Dabashi, Al Jazeera, 10 October 2012
http://www.aljazeera.com/indepth/opinion/2012/10/2012108104732830198.html
‘Tolerance is the basis of all our freedoms’, br Frank Furedi, spiked, 8 October 2012
http://www.spiked-online.com/site/article/12951/
Maharashtra urges centre to curb anti-Islam movie on internet, Siasat Daily, 20 September 2012
http://www.siasat.com/english/news/maharashtra-urges-centre-curb-anti-islam-movie-internet
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Social media & the freedom of expression, by Santosh Desai, Times of India, 27 August 2012
http://blogs.timesofindia.indiatimes.com/Citycitybangbang/entry/social-media-the-freedom-ofexpression
New Delhi Expands Curbs on Web Content, Wall Street Journal, 24 August 2012
http://online.wsj.com/article/SB10000872396390444270404577607282527697346.html
Batting for reason in a land of faith, by Vrushali Lad, Hindustan Times, 6 May 2012
http://www.hindustantimes.com/India-news/Mumbai/Batting-for-reason-in-a-land-of-faith/Article1851455.aspx
The Fraud and Hypocrisy of the “Liberal” Indian Crowd, drishtikone.com, 8 July 2011
http://www.drishtikone.com/fraud-and-hypocrisy-liberal-indian-crowd/
Turning football fans into snitches, by Kevin Rooney, spiked, 21 April 2011
http://www.spiked-online.com/site/article/10448/
Thou shalt not blaspheme, by Hemchhaya De, Telegraph, 12 January 2011
http://www.telegraphindia.com/1110112/jsp/opinion/story_13426168.jsp
Muslims must combat hate speech, by Inayat Bunglawala, Guardian (UK), 10 November 2009
http://www.guardian.co.uk/commentisfree/cifamerica/2009/nov/10/muslims-fort-hood-anwar-al-aulaqi
Free speech under serious threat in India?, The Outsider, undated
http://www.theoutsider.tv/debate/22/moreinfo
In the news
Section 66 (A) of IT Act continues to remain in the eye of storm, Business Standard, 15 December 2012
http://business-standard.com/india/news/section-66-ait-act-continues-to-remain-ineyestorm/199666/on
Section 66A: India new rules to make Facebook arrest tougher, BBC News, 29 November 2012
http://www.bbc.co.uk/news/world-asia-india-20537332
India Tightens Rules on Hate Speech Law, India Real Time, 29 November 2012
http://blogs.wsj.com/indiarealtime/2012/11/29/india-tightens-rules-on-hate-speech-law/
Sena justifies arrests in Facebook post row, The Hindu, 20 November 2012
http://www.thehindu.com/news/national/sena-justifies-arrests-in-facebook-post-row/article4115837.ece
Russians in favour of blasphemy law, DNA India, 26 September 2012
http://www.dnaindia.com/world/report_russians-in-favour-of-blasphemy-law_1745472
Islamic states use Ireland’s blasphemy law in persecuting Indian dissident, by Antoinette Kelly, Irish Central, 27
November 2012
http://www.irishcentral.com/news/Islamic-states-use-Irelands-blasphemy-law-in-persecuting-Indiandissident-180979121.html
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Experts say blasphemy laws are undercurrent of unrest in Middle East, by Matthew Brown, Deseret News, 27
September 2012
http://www.deseretnews.com/article/865563337/Experts-Blasphemy-laws-are-undercurrent-of-unrestin-Middle-East.html
Anglican bishops call for U.N. ban on blasphemy, Anglican Link, 17 September 2012
http://anglicanink.com/article/anglican-bishops-call-un-ban-blasphemy
Twitter prepares curbs on hate speech, Financial Times, 27 June 2012
http://www.ft.com/cms/s/0/b6d88db4-c05d-11e1-9867-00144feabdc0.html
Indonesia upholds blasphemy law, Al Jazeera, 20 April 2010
http://www.aljazeera.com/news/asia-pacific/2010/04/20104208101575962.html
Muslim nations push for international blasphemy law, by Daniel DeFraia, Global Post, 25 September 2012
http://www.globalpost.com/dispatch/news/politics/120925/muslim-nations-push-internationalblasphemy-law
CPS gives Scientologists same legal protection as mainstream religions, Daily Mail (UK), 7 March 2009
http://www.dailymail.co.uk/news/article-1160263/CPS-gives-Scientologists-legal-protectionmainstream-religions.html