India is a secular country (state) and recognized many of the religions and further, religions are divided into sects and sub-sects. The Constitution prohibits any discrimination on the ground of religion and grants freedom of religion as fundamental rights under Part-III (Articles 25 to 28).
(1) FREEDOM OF RELIGION
(1.1) FREEDOM OF RELIGION UNDER THE CONSTITUTION
Article 25 of the Constitution grants freedom of conscience and free profession, practice and propagation of religion. It says that all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion, but, subject to public order, morality, health, and other fundamental rights.
Religious gathering.- Every citizen of India is entitled to hold any kind of religious gathering provided it is done peacefully and without breaking the law. However, where these gatherings are intended to lure poor, incredulous and ignorant masses into joining a particular fold, faith or religious group by false and exaggerated claims as to possession of divine and supernatural powers, same will certainly attract attention of authorities and courts alike, which can prohibit or strike down such activities.
Article 26 grants freedom to manage religious affairs but subject to public order, morality and health. It says that every religious denomination or any section thereof shall have the right—(i) to establish and maintain institutions for religious and charitable purposes; (ii) to manage its own affairs in matters of religion; (iii) to own and acquire movable and immovable property; and (iv) to administer such property in accordance with law.
The Supreme Court while considering the freedom to manage religious affairs under Article 26 held that, expression ‘religious denomination’ must satisfy three requirements, i.e., (i) that it must be a collection of individuals, who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (ii) a common organisation; and (iii) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status.
A reference to Articles 25 and 26 of the Constitution, which guarantee the right to freedom of religion, will show that the argument is utterly untenable. The right to freedom of religion assured by those Articles is expressly made subject to public order, morality and health. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order. Those two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order.
Article 27 liberals the tax policy by grating freedom as to payment of taxes for promotion of any particular religion. Article 28 grants freedom as to attendance at religious instruction or religious worship in certain educational institutions. Article 30 grants right of minorities to establish and administer educational institutions.
(1.2) PROTECTION AGAINST DISCRIMINATION
Beside freedom, the Constitution prohibits discrimination on the ground of religion. Article 14 prohibits the State from discriminating on the ground of religion while making any law. Article 15 prohibits the State from any discrimination on the ground of religion in the public places and educational institutions. Similarly, Article 16 prohibits discrimination of any opportunity of employment or promotion. According to Article 23(2), State may impose compulsory service for public purpose, but cannot discriminate on the ground of religion. Article 29(2) states that no citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on ground of religion. Article 324 grants right to vote irrespective of religion and Article 325 no persons shall be ineligible for inclusion in an electoral roll on the ground of religion.
(1.3) RELIGION AS A DEVISABLE FACTOR
Religion is holy belief of the people, who believe in it, but, on the other hand, it is nothing for those people who do not believe in particular faith. They also believe that only their ideology is supreme, not the others. Moreover, they think that the people of other faiths are their enemy and they may attack their religion. This fear is one of the factors, which make religion as a divisible factor.
In India every person thinks that his religion is supreme and other religions are inferior to his religion. They are so deeply connected with their religion and cannot depart from it. Whereas, mandate of the Constitution states that India is your religion and the Constitution your holy religious book. Before being Hindu, Muslim, Christian, Parsee or Jew, we are Indian. All religions come after the region of India. But, contrary provisions of the various religions divide the citizens into different groups.
Take the example of Babri Masjid (disputed claim of Hindu and Muslim) demolition, where numerous Hindus attacked the masjid, and believe that it was the temple of Shree Ram. But on the other hand it is also correct that, most of the people of that unlawful assembly, may be such kinds, who do not go regularly to the temple, and the persons, who were engaged in aftermath may be of those, who never go in that masjid. This incident states that religion is the most devisal factor in society.
(2) OFFENCES RELATING TO RELIGION UNDER IPC
Chapter XV of IPC deals with offences relating to religion. Section 295 prohibits a person from injuring or defiling place of worship with intention to insult their religion. Section 295A prohibits deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs. Section 296 assure to conduct religious assembly, therefore, disturbing of religious assembly is an offence. Under section 297 trespassing on burial places is prohibited and section 298 prohibits a person from uttering words to would religious feeling of another.
(2.1) INJURING OR DEFILING PLACE OF WORSHIP TO INSULT THE RELIGION
Section 295 declared an intentional insult by harming place of worship of any other religion. According to section 295 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 punished with imprisonment up to two years and/or fine.
To bring charge at home under section 295, the prosecution has to prove two things –
(i) The person destroyed, damaged or defiled any place of worship, or any object held sacred by any class of persons.
(ii) It has been done with the intention or knowledge of insulting the religion of any class of persons.
The section would apply only to cases where an idol in a temple is sought to be destroyed, damaged, or defiled. The words “any object held sacred by any class of persons” even otherwise will apply only to idols in a temple or when they are carried out in processions on festival occasions.
Idols are only illustrative of those words. A sacred book, like the Bible, or the Koran, or the Granth Saheb, is clearly within the ambit of those general words. The burning or otherwise destroying or defiling such sacred books, very well come within the purview of the penal statute.[1] But, the word “object” in section 295, does not include animate objects. The word “object” should be interpreted ejusdem generis with the words ‘place of worship’.
(2.2) OUTRAGE RELIGIOUS FEELINGS
Section 295A prohibits deliberate and malicious acts of a person, intended to outrage religious feelings or any class by insulting its religion or religious beliefs. It says that 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 up to three years and/or fine.
Ingredients of offence under section 295A are :
(i) The act must be deliberate and malicious intended.
(ii) Intention must be outraging the religious feelings of any class of citizens of India,
(iii) By words (either spoken or written), or by signs or by visible representations or otherwise,
(iv) The act of the person insults or attempts to insult the religion or the religious beliefs of that class.
The word ‘malicious’ used in Section 295A, presents some difficulty. It was observed by Allahabad High Court that if a person wilfully does an act injurious to another without lawful excuse, he does it maliciously. Even a true statement may outrage religious feelings.
The Allahabad High Court has observed that in Section 295A of IPC, the word ‘malicious’ has not been used in the popular sense. In order to establish malice as contemplated by this section, it is not necessary for the prosecution to prove that, the applicant bore ill will or enmity against specific persons. If the injurious act was done voluntarily without a lawful excuse, malice may be presumed. Provocation received from supporters of the opposite view cannot be treated as a lawful excuse for writing the offensive books. The applicant was guilty of committing the injurious act without a lawful excuse. He knew the probable result of the writing. Malice, is, therefore, established.[2]
In order to bring the case within Section 295A, it is not so much the matter of discourse as the manner of it. In other words, the words used should be such as are bound to be regarded by any reasonable man as grossly offensive and provocative and maliciously and deliberately intended to outrage the feelings of any class of citizens of India. In no part of the book called ‘Gurmat Vichar Suraj’ is there any passage showing disrespect to the Sikh Gurus or the ‘Sri Guru Granth Sahib’. From what court has seen in the book it is plain that the author professes to accept the message of the Gurus as contained in the ‘Sri Guru Granth Sahib’ but seeks to place his own interpretation on that message. That being the position of matters, court do not think that the publication falls within Section 295A of IPC.[3]
Where the book was in question under section 295A, the circumstance will not by itself take out the books from the scope of Section 295A of IPC. The Allahabad High Court held that, the intention of the writer of a book must be judged primarily by the language of the book itself, though it is permissible to receive and consider external evidence either to prove or to rebut the meaning ascribed to it. If the language is of a nature calculated to produce or to promote feelings of enmity or hatred, the writer must be presumed to intend that which his act was likely to produce.
The Supreme Court held that, Section 295 of IPC has been intended to respect the religious susceptibilities of persons of different religious persuasions or creeds. Courts have got to be very circumspect in such matters, and to pay due regard to the feelings and religious emotions of different classes of persons with different beliefs irrespective of the consideration whether or not they share those beliefs, or whether they are rational or otherwise, in the opinion of the Court. That was a case under Section 295 of IPC. But those observations have a bearing on Section 295A of IPC also.[4]
Discussing merits and demerits of a historical figure does not amount to an offence under Section 295A of IPC. The Patna High Court held that in a prosecution under sections 124A and 153A of IPC, the speeches made may be considered as a whole and in a fair, free and liberal spirit, not dwelling too much upon isolated passages or upon a strong expression used here and there. An attempt should be made to gather the general effect of the speeches as a whole.[5]
The question before the Orissa High Court was whether members of opposite Party deliberately contravened established practices of temple and disobeyed injunctions in sacred texts knowing it to be likely that by such conduct on their part Mahaprasad would be defiled and religious feelings of Hindus wounded. The Orissa High Court held that there was nothing to show that Raja of Puri intended to ridicule established practices of temple or to want only insult feelings either of Puja Pandas or of other worshippers. He first tried to persuade Puja Pandas themselves to offer Neibedya, but when they in a body refused and it was getting very late he had no other alternative but to utilise services of Pushpalkas. The petitioner and other Puja Pandas may feel that their religious feelings were wounded, but other view also plausible and supported by some authority namely extracts from Madal Panji and Niladri Mahodaya no criminal case can stand.[6]
(2.3) COGNIZANCE OF OFFENCE OF SECTION 295A
Section 196(1) of the Code of Criminal Procedure inter alia provides that no Court shall take cognizance of any offence punishable under Section 295A of the IPC except with the previous sanction of the Central Government or of the State Government. Obviously, therefore, under Sub-section (1) of Section 196, in the absence of a sanction from the concerned Government, no Court can take cognizance of an offence punishable under Section 295A of the IPC. It is, therefore, obligatory on a person who proposes to move the criminal law under Section 295A of the IPC, to obtain the necessary sanction from the concerned Government before doing so. The obtaining of a sanction is, therefore, a sine qua non and no Magistrate can take cognizance of the complaint under Section 295A of the IPC unless the order granting sanction is produced. In these two cases, as it is common ground that no such prior sanction of the concerned Government was obtained, the learned Magistrates were not entitled to take cognizance of the offence punishable under Section 295A of the IPC.
The process issued by Magistrates for commission of an offence punishable under Section 295A of IPC could not be sustained as no prior sanction of concerned Government was obtained as required by Section 196(1) of Cr.P.C. The process issued by concerned Magistrates was quashed by Gujarat High Court. In the instance case, a written article “Why Acharya Rajnishji leaves Pune?” was published in the weekly “AASPASS” of the petitioner.[7]
The Supreme Court quashed the proceedings of an offence under section 295A on the ground that sanction was not given to prosecute the Appellants, in accordance with Section 196(1) of the Code of Criminal Procedure, 1973.[8]
(2.3) DISTURBING RELIGIOUS ASSEMBLY
Section 296 says that whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment up to one year and/or fine. Elements of section 296 are as follows –
(i) voluntarily causes disturbance
(ii) to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies.
(2.4) TRESPASSING ON BURIAL PLACES
According to section 297 whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion or any person is likely to be insulted thereby,
Commits any trespass in any place of worship or on any place of sepulture, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies,
Shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Elements of the section :
(i) the intention of wounding the feelings of any person
(ii) trespass in any place of worship or burial places, or
(ii) causes disturbance to any persons assembled for the performance of funeral ceremonies.
The Allahabad High Court held that it is thus essential that before an offence can be committed under this section, the place must have been set apart as a depository of the remains of the dead. The plot in question or any part of it had been apart as depository for the remains of dead. In absence of such evidence, he cannot be convicted for offence under section 297 of IPC.[9]
(2.5) UTTERING WORDS TO WOULD RELIGIOUS FEELING
Section 298 declared that uttering, words, etc., with deliberate intent to wound the religious feelings of any person is an offence punishable with one year’ imprisonment and/or fine. Basic elements of the offence are –
(1) The person utters any words, makes any sound, makes any gesture or places any object in the sight of any person, and
(2) He has done that with the deliberate intention of wounding the religious feelings of that person.
The Gujarat High Court has held that section 298 makes it an offence if anyone with deliberate intention of wounding religious feelings of any person, utters any word or makes any sound in hearing of that person. It does not include written article which was published in weekly of petitioner. Therefore, section 298 of IPC could not be attracted.[10]
(a) Differences between sections 298 and 295A
The offence punishable under Section 295A is far more serious than the offence punishable under Section 298 (one year’ imprisonment and/or fine).
The Section speaks of the deliberate intention of wounding the religious feelings of ‘any person’ whereas Section 295A speaks of deliberate and malicious intention of outraging the religious feelings of ‘any class of citizens of India’.
The use of the word ‘wounding’ and the use of the word ‘outraging’ also shows that the offence under Section 295A is far more serious than the offence punishable under Section 298.
(3) THE RELIGIOUS INSTITUTIONS (PREVENTION OF MISUSE) ACT, 1988
Prohibition of use of religious institutions for certain purposes.- According to section 3 of the Act, no religious institution or manager thereof shall use or allow the use of any premises belonging to, or under the control of, the institution—
(i) For the promotion or propagation of any political activity; or
(ii) For the harbouring of any person accused or convicted of an offence under any law for the time being in force; or
(iii) For the storing of any arms or ammunition; or
(iv) For keeping any goods or articles in contravention of any law for the time being in force; or
(v) For erecting or putting up of any construction or fortification, including basements, towers or walls without a valid licence or permission under any law for the time being in force; or
(vi) For the carrying on of any lawful or supervise an act prohibited under any law for the time being in force or in contravention of any order made by any court, or
(vii) For the doing of any act which promotes or attempts to promote disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities; or
(viii) For the carrying on of any activity prejudicial to the sovereignty, unity and integrity of India; or
(ix) For the doing of any act in contravention of the provisions of the Prevention of Insults to National Honour Act, 1971.
Restriction on carrying arms and ammunition into a religious institution.-According to section 4 of the Act, no religious institution or manager thereof shall allow the entry of any arms or ammunition or of any person carrying any arms or ammunition into the religious institution. It shall not apply to—(a) The wearing and carrying of a Kirpan by any person professing the Sikh religion; or (b) Any arms, which are used as part of any religious ceremony or ritual of the institution as established by custom or usage.
Prohibition of use of funds of religious institutions for certain activities.- According to section 5 of the Act, no religious institution or manager thereof shall use or allow the use of any funds or other properties belonging to, or under the control of, the institution for the benefit of any political party or for the purpose of any political activity or for the commission of any act which is punishable as an offence under any law.
Prohibition of religious form for propagating political ideas.- According to section 6 of the Act, no religious institution or manager thereof shall allow any ceremony, festival, congregation, procession or assembly organised or held under its auspices to be used for any political activity.
Punishment.- According to section 7 of the Act, where any religious institution or manager thereof contravenes the above provisions, the manager and every person connected with such contravention shall be punishable with imprisonment up to five years and with fine up to Rs. 10,000.
(4) PROMOTING ENMITY BETWEEN DIFFERENT GROUPS IS SPECIFIC OFFENCE
Section 153A prohibits using of words, either spoken or written, or by signs or by visible representations or otherwise, which promotes or attempts to promote, on grounds of religion, disharmony or feelings of enmity, hatred or ill-will between different religious.
It also prohibits to organize any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community.
Section 153AA prohibits carrying arms in any possession or organizing or holding or taking part in any mass drill or mass training with arms.
On the other hand Section 153B of the IPC prohibits acts by words either spoken or written or by signs or by visible representations or otherwise, –
(a) Makes or publishes any imputation that any class of persons cannot, by reason or their being members of any religious, racial, language or regional group or caste or community, bear true faith and allegiance to Constitution of India as by law established or uphold the sovereignty and integrity of India, or
(b) Asserts, counsels, advises, propagates or publishes that any class or persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied or deprived of their rights as citizens of India, or
(c) Makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste of community, and such assertion, counsel, pleas or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons.
Whoever commits any such offence, in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment up to five years and shall be liable to fine.
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[1] S. Veerabadran Chettiar v. E.V. Ramaswami Naicker, AIR 1958 SC 1032 : 1958 CriLJ 1565.
[2] Baba Khalil Ahamad v. State of UP, AIR 1960 All 715 : 1960 CriLJ 1528.
[3] Shiv Ram Dass Udasin v. The Punjab State, AIR1955P&H28, 1955 CriLJ 337 (P&H HC].
[4] Veerabadran Chettiar v. Ramaswami Naicker, AIR 1958 SC 1032 : 1958 CriLJ 1565
[5] Debi Soren v. State of Bihar, AIR 1954 Pat 254.
[6] Gopinath Puja Panda Samanta v. Ramchandra Deb, AIR 1958 Ori 220 : 24 (1958) CLT 183 : 1958 CriLJ 1207.
[7] Shalibhadra Shah v. Swami Krishna Bharati, (1980) GLR 881 : 1981 CriLJ 113.
[8] Manoj Rai v. State of M.P., AIR 1999 SC 300 : (1999) 1 SCC 728 : 1999 CriL J470.
[9] Katwaru v. State of UP., 1975 AWC 617, 1976 CriLJ 943.
[10] Shalibhadra Shah v. Swami Krishna Bharati, (1980) GLR 881 : 1981 CriLJ 113.