All You Need To Know About The Section 295A, Which Got Kiku Sharda Arrested

19 Jan 2016 6:16 AM GMT
All You Need To Know About The Section 295A, Which Got Kiku Sharda Arrested
Image Courtesy: deccanchronical bollywoodbubble

Kiku Sharda, an actor from the famous show ‘Comedy nights with Kapil’ was arrested on 13th January for allegedly mimicking the self-proclaimed godman Gurmeet Ram Rahim Singh Insan while acting in a TV show, Jashn-e Umeed, which aired on December 27 under the infamous IPC section 295A.

What is the section 295A?

The object of Section 295-A is to punish deliberate and malicious acts intended to outrage the religious feelings of any class by insulating its religion or the religious beliefs. This section only punishes an aggravated form of insult to religion when it is perpetrated with deliberate and malicious intention of outraging the religious feelings of a class.

Ingredients of Section 295-A:

The accused must insult or attempt to insult the religion or religious beliefs of any class of citizens of India.

The said insult must be with a deliberate and malicious intention of outraging the religious feelings of the said class of citizens.

The said insult must be by words, either spoken or written, by signs or by visible representation or otherwise.

The history of the section 295A could be traced back to 1927 when a book Rangila Rasul was published. The book concerned the marriages and sex life of Prophet Muhammad. On the basis of a complaint, the publisher was arrested but later acquitted in April 1929 because there was no law against insult to religion. The Indian Muslim community demanded a law against insult to religious feelings. Thus, Colonial British Government enacted section 295(A).

Since then, 295A has been a hanging sword over various scholars, artists, activists, actors and reformists. In 2014, in a show organized by Salman Khan’s ‘Being Human’ a model walked the ramp with Arabic words inscribed on her t-shirt after which Salman Khan was charged with insulting Muslim sentiments under this section. Year 2012’s one of the hit song movie ‘Student of the year’ Radha on the dance floor landed Shahrukh Khan on the same controversy as some people charged him of insulting Hindu sentiments as he was the co-producer of the movie. Akshay Kumar and Aamir khan faced the same charges when their movies ‘Oh My God’ and ‘PK’ allegedly insulted Hindu sentiments. Authors Taslima Nasreen, Salman Rushdie, Wendy Doniger and artist M F Hussain had also faced charged under this law.

What makes section 295A controversial?

The first thing is there is so much of ambiguity in what section 295A says. It says ‘acts intended to outrage the religious feelings of any class by insulting its religion or the religious beliefs….’. Now, what are religion and religious feelings? Surprisingly Indian constitution does not have the definition of religion or religious feelings.

It could be asked whether ‘religion’ includes only mainstream religions like Hinduism (Calling Hinduism a religion is also a much-debated topic as in 2005 Supreme court ruled out that it is not a religion but a way of life. Recently Prime Minister Narendra Modi also reiterated the same thought calling it ‘way of life’. If it is so then hundreds of such cases of insulting ‘Hindu’ sentiments could be done away in one shot), Buddhism, Christianity, Islam, Sikhism or it assimilates countless sects?

Even the Supreme Court has recognized that the term religion is “incapable of specific and precise definition”. The Court has held that it is not something that has a “rigid definition”, and by its very nature “difficult, if not impossible to define”.

On this note, it could be said that the recent case of Kiku Sharda allegedly insulting Gurmeet Ram Rahim Singh Insan who is a leader of Dera Sacha Sauda, is quite unfair as Dear Sacha Sauda is neither a religion nor a sect, it is simply a non-profit social welfare Organization. Ironically Gurmeet Ram Rahim Singh Insan was accused of hurting the religious sentiments of the Sikhs by wearing, in an advertisement, an attire, resembling the tenth and final Sikh Guru Gobind Singh.

Is 295A Contradictory to Freedom of Speech?

At the time of the first amendment to the Indian constitution, the architect of constitution Dr. B. R. Ambedkar along with Pandit Nehru and C. Rajgopalachari was of the opinion that there should be reasonable restrictions over freedom of expression guaranteed in Article 19 of the original constitution. This doctrine has turned into a nightmare for freedom of speech in India.

It set up a marketplace of outrage which everyone wants to enter. Everyone is now saying, “My feeling are getting hurt by your opinion”. In 2014 while dismissing the PIL seeking intervention by the court in directing the Election Commission to curb hate speeches. The Apex court said, “We cannot curtail fundamental rights of people. It is a precious right guaranteed by Constitution. We are a mature democracy and it is for the public to decide.”

We are 1280 million people and there would be 1280 million views. One is free not to accept the view of others. It is a matter of perception, a statement objectionable to a person might be normal to another person”.

Do we need laws to respect each other’s beliefs?

Dr. Ambedkar in the constituent assembly once said that constitutional values have to be given more importance whenever they clash with social prejudice. To surpass these social prejudices which are coming in our way after every passing day, we should ask ourselves Do we need section 295A in its present form?

Before independence while 295A was being framed, Muhammad Ali Jinnah, who was a member of the committee that framed the act, tried to stress the fact that 295 (A) should apply only to genuine cases of deliberate and malicious intent and “the fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected”.

Now in how many cases pending before various courts, the acts are ‘deliberate’, ‘malicious’? Weren’t the authors engaged in historical works trying to ascertain the truth, Weren’t the art forms and artists trying to criticize religion honestly. After all, they have the right.

The Logical Indian is of the observation that in present form, article #295A is a dangerous tool and needs to be modified.

-Yuvraj Sakhare

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