Unwitting, careless ‘insults’ to religion must not be prosecuted: SC

April 25, 2017 by  
Filed under India, newsletter-india

New Delhi, April 22, 2017: In a pronouncement that reiterates the constitutional protection to freedom of speech and expression, the Supreme Court has said that unwitting or careless “insults” to religion should not be prosecuted as this would amount to misuse of law.

Concerned by the misuse of Section 295A of IPC, which provides up to three years’ jail term for hurting religious sentiments, the Supreme Court limited the applicability of the penal provision to deliberate and malicious acts rather than casual observations that are not driven by malicious intent.

“Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section,” a bench of Justices Dipak Misra, A M Khanwilkar and M M Shantanagoudar said.

The bench passed the order on a plea by cricketer M S Dhoni challenging criminal proceedings against him for hurting religious sentiments for being portrayed as “Lord Vishnu” on the cover of a business magazine in 2013 holding several things, including a shoe, in his hands.

The SC’s interpretation should protect individuals and public figures that have often been at the receiving end of cases filed by political activists, cause chasers and overzealous or vengeful administrative authorities. While the SC decision to strike down in entirety Section 66A of the Information Technology Act, 2000 for being violative of the right to freedom of speech and expression provided relief to social media users, the SC has reiterated the limits of Section 295A. The section says that an offence will be made out by “deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs”.

Despite a 1957 judgment of the SC that Section 295A could not be slapped on a person for unintentionally hurting religious sentiments, the rampant misuse of the penal provision persuaded the bench to clarify yet again the width and ambit of the legal position.

“It is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalises only those acts of insults or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens,” the bench said.

“The Constitution bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty,” the court said while referring to the 1957 Constitution bench verdict of the apex court.

A slew of Bollywood actors have had to face criminal proceedings under the section and in 2016, stand-up comedian Kiku Sharda was arrested+ for allegedly mimicking Dera Sacha Sauda chief Gurmeet Ram Rahim Singh on his show.

In September 2014, Salman Khan was accused of insulting Muslim sentiments when a model walked the ramp with an Arabic word inscribed on her T-shirt at a fashion show organised by his NGO, Being Human, and a police complaint was filed against him.

A case was also registered against actor Aamir Khan in Delhi for hurting religious sentiments for dressing as Lord Shiva and pulling a rickshaw on which two burqa-clad women were sitting in his film ‘PK’.

An FIR was filed in Rajasthan’s Ajmer city against Akshay Kumar and film director Umesh Shukla for hurting the religious sentiments of Hindus for portraying the actor as Lord Krishna in film ‘Oh My God’.

In 2012, a case was filed against Shah Rukh Khan and his wife over a song, “Radha on the dance floor”, in the film ‘Student Of The Year’. He was the co-producer of the film.

– times of india

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