Section 295A ; A case for caution
Comedy Nights actor Kiku Sharda arrested was recently for mimicking Dera Chief Gurmeet Ram Rahim. Kiku Sharda was sent to 14-day judicial custody But was granted bail later. Kiku Sharda made public apology for her act. The arrest was made under section 295 A of the Indian Penal Code (outraging religious feelings of any class by insulting its religion or religious belief). Kiku is not alone. In past, Bollywood stars like Salman Khan,Shahrukh Khan and Akshay Kumar have been booked under section 295A.
Much more damaging was the pulping of Wendy Doniger’s book, The Hindus: An Alternative History by Penguin to pre-empt a possible persecution under this much feared IPC code.In a statement, Penguin worried that “that India’s penal code would “make it increasingly difficult for any Indian publisher to uphold international standards of free expression”.
The feared section 295A states “Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. — Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 273 [citizens of India], 274 [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 4[three years], or with fine, or with both.]”
What made Penguin withdraw the book even before the court could have decided against it or Kiku Sharda to apologise ? Is it that the cost benefit analysis of having to face such cases in the court forces the booked party to make any demanded amends and excuse out of the case proceedings.
Having proved guilty of “outraging religious feeling” of Indian citizen, one can be put behind bars for a period of 4 years. Interestingly, how can be claims of the petitioner that his feelings have been hurt be refuted. And is mere a claim to this respect enough to book someone under 273 ? Can extreme religious sensitivity be measured? Further, its near impossible to know for sure what the “intentions” of the accused were?
Its very important that IPC 295A be considered in conjunction with Article 19 (1) (a) (grants expression of freedom). If the cost of charging a citizen with 273 is too low , will it not encourage frivolous claims of hurt and victimhood. Its a challenge before courts to take up cases under the said IPC while keep in mind the freedom of exception that the constitution grants to its citizen.