A widely accepted definition for blasphemy could be An irreverence towards God, religion, a sacred icon, or something else considered sacred[2].

Maybe you who condemn me are in greater fear than I who am condemned.-Giordano Bruno.[1]
A widely accepted definition for blasphemy could be an irreverence towards God, religion, a sacred icon, or something else considered sacred[2]. The act of blasphemy is criminalized in India by virtue of Section 295A of the Indian Penal Code [hereinafter S. 295A].[3] The section was enacted particularly to target speech that intended to outrage religious feelings by insulting religion or faith of the people.[4]

The section states-
S.295A. Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs-

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 of either description for a term which may extend to three years, or with fine, or with both.
There existed a huge controversy regarding the constitutionality of the section.

This controversy was resolved by the Supreme Court in Ramji Lal Modi v. State of U.P[5], where the court held that - section does not penalise every act of insult to or attempt to ‘insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religious beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.

In my opinion Ramji Modi case must be revisited in light of Supreme Court’s decision in Shreya Singhal v. Union of India[6]. However, discussing the constitutionality of S.295A or giving a critique about Ramji Modi case is not the purpose of this article. Rather, it is an attempt to discuss on ground application of the said law and discuss the problems involved (if any).

At outset it is necessary to discuss the ingredients of S.295A, viz. a person does an:
1) act ( words, signs, visual representations or otherwise),
2) with deliberate or malicious intention, 3)
of outraging the religious feelings,
4) of any class of citizens of India,
5) insults of attempts to insult the religion or religious feelings.[7]

Although it was intended to keep careless statements or statements without any deliberate malicious intention out of the scope of S.295A[8], it’s not the case. High Courts have held that it is not necessary to prove that the accused bore ill-will or enmity.[9] This means to say that if the act was done voluntarily and without any lawful excuse malice may be presumed.[10] In addition to this, another problem exists with the fact that truth of any statement made or act done is not considered a defence under this section.[11]

Considering the jurisprudence on this section, I argue that the section is prone to misuse. The major problem is with respect to two aspects here. Firstly, the removal of requirement of ill-will is troublesome. Think about a scenario, where A writes a book on Hinduism, which talks about the life Kamadeva[12], it’s presumption that such book will contain intimate chapters or paragraphs and this hypothetical involves no ill-will as intimacy and Kamadeva’s life are linked to a great extent.

The question remains is the person liable for an act where s/he had no ill-will or something which s/he said was a fact according to a school of thought. Secondly, truth not being a defence under S.295A, if I were to argue from constitutional perspective the said section casts a chilling effect[13] on freedom of speech and expression. Let’s look at another situation, where the Hindu God, Rama’s life is discussed and he is portrayed as a person who consumes non-vegetarian food, it’s a fact according to some people (a few verses from Ramayana are attached below with translation)[14] whereas it might be insulting for some other.

Though, the apex court has interpreted S.295A in manner so as to include only deliberate or malicious acts of insults to religion under the its ambit.[15] It is my opinion that the legislation has failed to serve it’s purpose and requires amendments or perhaps it should be repealed, when looking through the lens of Constitution. A few examples of such failure would include, an incident that took place in April 2012, though is incident is particularly related with section 295 of the Penal code[16] both are related to blasphemy, the Catholic Church filed a complaint against Sanal Edamaruku, the then President of Indian Rationalist Association[17]. The complaint was regarding a factual or logical conclusion related with a weeping jesus on the cross, which Edamaruku was arguing. He contended that the supposed ‘miracle’ was nothing but the result of a leaky drain. Edamaruku was asked to surrender and face charges by the police, since then he lives in exile in Finland.[18]

In addition to this, blasphemy laws face issues with regard to their enforceability as well. Many cases of religious hate propagation have gone uncheck. For instance, the tiger of Mumbai, Bal Thackeray used to publish a series of communal editorials, the Saamna.[19] These inflammatory editorials were published during riots and proved large-scale destruction and violence.[20] The government and police failed do anything during the riots, and even the petitions went in vain despite of the proofs presented.[21]

Therefore, it is my contention that blasphemy laws in India requires reconsideration. As mentioned above, there are multiple reasons for this argument along with that of containment of freedom of free speech and expression. Firstly, there is a multiplicity of opinions as to what would be the standard for an expression to be considered as blasphemous, there is no exact definition as to what would be blasphemous. One of the reasons for this lacunae is, the legislature does not take into account that religions are further segregated into factions/cults or sects which usually differ from each other on some major ideologies, for instance Hindus worship Rama as well as Ravana or the Lingayats. One such faction might consider an expression to be blasphemous while the other faction may disagree.

Therefore, there is ambiguity or I would rather call it ‘vagueness in the law’ in what blasphemous means as it could range from satire to stating an alternative thought such as atheism or actual criticism and this ambiguity is what makes S.295A bad law.

Secondly, S.295A or any blasphemy law (S.195, 296, 298 etc.) has the capacity to legitimize mob violence or vigilantism. The reason the Code has such a provision is to punish those who may incite violence by their speech or expression, in doing so, it establishes that such violence would be an obvious result and therefore such expressions must be criminalized. While such violence has social legitimacy, blasphemy laws give such a reaction a legal standard as well. Criminalizing insult to religion, lends legitimacy to the social persecution of people who ‘offend’ mainstream religious sensibilities.[22] This in turn legitimizes the violence.

Thirdly, it is often forgotten that religion is a belief, it’s a faith. believers must be entitled to basic rights. Protecting such religion with such laws is similar to protecting any theory against criticism. In other words, it is similar to criminalization of criticism of Communism, Socialism, Pure theory etc.

Fourthly and lastly, blasphemy laws are inconsistent with secular character of Indian Constitution. The Indian Constitution provides for reformation, i.e. curbing of socially unjust practices like untouchability and throwing open of temples to every citizen.[23] The Indian Constitution has a transformative as well as reformative approach.

Although India has in place a religious hate legislation, the problem lies not just with the legislation itself or the lack of it but with its implementation at both the executive and judicial level. There is at times a lack of enforcement by the executive level and at times the judicial level. Perhaps, its high time we become tolerant towards other’s views.

The European Court of Human Rights has held in Handyside v. United Kingdom[24] that an expression is protected even if ‘offends, shocks or disturbs’. It us now upon us to choose between whether we need such a law in the first place ? and if at all we do, are we placing people capable enough to enforce it ?

I conclude this piece by quoting Evelyn Beatrice Hall[25] – I do not agree with what you have to say, but I’ll defend to the death your right to say it.

End-Notes
[1] Italian Philosopher particularly known for his cosmological theories.
[2] Bryan A. Garner, Black’s Law Dictionary 181 (9d ed. 2009).
[3] §. 295A, Pen. Code, 1860.
[4] Law Commission of India , Report No.267, Hate Speech, available at :
http://lawcommissionofindia.nic.in/reports/Report267.pdf (last visited22nd Sept. 2019).
[5] Ramji Lal Modi v. State of U.P, A.I.R. 1957 SC 620.
[6] Shreya Singhal v. Union of India, [2015] 5 S.C.C. 1.
[7] Sujato Bhadra v. State of West Bengal, [2006] Crim. LJ 368 [Cal].
[8] Ratanlal & Dhirajlal, The Indian Penal Code, 484 (34d ed. 2016)
[9] Baba Khalil Ahmad v. State, A.I.R. 1960 [All] 715; Trustees of Safdar Hashmi Memorial Trust v. Govt. of Delhi, [2011] Crim. LJ 3869 [Del].
[10] Ratanlal, supra note 8.
[11] State of Mysore v. Henry Rodrigues, [1962] 2 Crim. LJ 564.
[12] Kamadeva is considered to be the god of human love and desire in Hinduism.
[13] Chilling effect is stifling of legitimate free speech through excessively broad and vague laws, and such laws are backed by a sanction affirmed in Shreya Singhal, supra note 6.
[14] taaM tathaa darshayitvaa tu maithiliiM girinimnagaam | niSasaada giriprasthe siitaaM maaMsena chandayan || 2-96-1, English translation – Having shown Mandakini River in that manner to Seetha, the daughter of Mithila, Rama set on the hill-side in order to gratify her appetite with a piece of flesh, available at : http://www.valmikiramayan.net/ayodhya/sarga96/ayodhyaitrans96.htm#Verse2. (last visited 22nd Sept. 2019).
[15] Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, [2017] 7 S.C.C. 760.
[16] [§.295. Injuring or defiling place of worship with intent to insult the religion of any class.—
Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defile­ment as an insult to their religion, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
[17] Indian organisation founded in 1949. It promotes  promote scientific skepticism and critique supernatural claims.
[18] End Blasphemy Laws: the campaign to abolish blasphemy laws, worldwide- India, available at : https://end-blasphemy-laws.org/countries/asia-central-southern-and-south-eastern/india/ (last visited 22nd Sept. 2019).
[19] Omair Rashid, Wounding with ink, available at : https://www.thehindu.com/thread/politics-and-policy/article7773346.ece (last visited 22nd Sept. 2019);
such editorials include – 1) ‘Muslims of Bhendi Bazar, Null Bazar, Dongri and Pydhonie, the areas we call Mini Pakistan ... must be shot on the spot.’ and 2) 'Muslims, Sikhs, Christians and people of other faiths ... indulge in anti-national activities. Such activities should be completely defeated. Muslims have been able to hold Hindus to ransom.' - Dilip D'Souza, Years That Have Passed, available at :
https://www.rediff.com/news/2000/aug/07dilip.htm (last visited 22nd Sept. 2019).
[20] Fernandes, Deepali Ann. Protection of Religious Communities by Blasphemy and Religious Hatred Laws: A Comparison of English and Indian Laws. Journal of Church and State, vol. 45, no. 4, 2003, pp. 669–697, 692 JSTOR, www.jstor.org/stable/23920934.
[21] Ibid.
[22] What’s Wrong With Blasphemy Laws?, available at : https://end-blasphemy-laws.org/whats-wrong-with-blasphemy-laws/  (last visited 22nd Sept. 2019).
[23] Surbhi Karwa and Shubham Kumar, A Blasphemy Law is Antithetical to India's Secular Ethos, available at : https://www.epw.in/engage/article/blasphemy-law-antithetical-indias-secular-ethos (last visited 22nd Sept. 2019).
[24] Handyside v. United Kingdom, A/24 : [1976] ECHR 5.
[25] English writer, best known for the Life of Voltaire.