With the ghastly violent attack on Salman Rushdie in New York – where he was, ironically, about to speak how Uncle Sam’s embrace is a 100% protective one for persecuted writers across the world and safe haven for creative pursuit – the hypocrisy of the world is out there for everyone to see. He is a Muslim man, constantly bashing Bharat and a darling of left-liberals. Whereas Nupur Sharma is a Hindu woman and fiercely protective of her Dharma and desh.

So what if all Nupur Sharma did was quote a few, ‘official’ hadiths while Rushdie wrote a full length novel choke full of the same alleged blasphemy. Establishment people still call her a ‘bigot’ and Rushdie a hero. And hence Nupur Sharma’s few words are condemned, and death and rape threats to her is justified while Rushdie’s 561 pages of Satanic Verses full of alleged blasphemy are celebrated as championing Freedom of Expression and hence attack on him is called an attack on Freedom of Expression itself!

Sure, that makes perfect sense.

Even though the ‘official’ motive for attack has not been announced ‘officially’, its been revealed that his attacker is named Hadi Matar, who has, allegedly, pretty strong sympathies for Shia extremists and Iran Revolutionary Guard Corps.

Rushdie might lose an eye, his liver is damaged, the veins in his hands are ruptured. (All of which makes us wonder whether he can write again, hence the objective of attacker succeeded after all.)

But at least, for now, he is alive. 

Unlike a poor Hindu tailor named Kanhaiyalal, who was beheaded by vicious Islamists in Congress-ruled Udaipur even after he approached the State for protection.

Another Hindu chemist named Umesh Kolhe was betrayed by a Muslim friend to the vicious Islamists who stabbed him to death in 3^rd such attempt, again in a state ruled by anti-Hindu alliance of which Congress was a junior partner.

Why?

Because both these people dare to support Nupur Sharma, alleged to have committed the crime of being ‘Gustakh-e-Rasool’, by her allegedly blasphemous comments on a certain religious figure’s personal life.

Since then, Bharat has erupted in intense and renewed debate over Nupur Sharma’s remarks and more broadly on the issue of blasphemy.

But this menace goes way back.

Unfortunate as it is, blasphemy laws exist in Bharat. No matter how you spin it, it’s just that – blasphemy law. Even more unfortunate is the fact that such a concept is alien to this ancient land. It wasn’t until 1926 that section 295A was added on the rule book. I’ll not go over to the similar grisly murder of the publisher of the book Rangila Rasool, that was, just like Nupur Sharma’s remarks, published in response to a derogatory provocation by Muslims.

Congress had then supported the murderer of a Hindu. M K Gandhi had condemned the Hindu side rebutting satire with satire. Jinnah had defended the murderer in court. The left-liberals’ favorite poet Iqbal sang paeans in the glory of the man who’d murdered a Hindu publisher because of hurt Muslim religious sentiments. This man, Iqbal, who wrote, ‘Mazhab nahi sikhata, aapas me bair rakhna’ (religion does not teach us to stay divided)

After independence, in the Congress-ruled central government, the 1^st amendment to Bharatiya Constitution was, ironically enough, to impose allegedly “reasonable” restrictions on Free Speech – a complete opposite to 1^st amendment of American Constitution, despite the fact that both start with the phrase ‘We, the People.’

That constitution, which places the people and their fundamental rights on such a high pedestal, is supposed to be defended by Courts.

Which makes it the most unfortunate aspect in our democracy that a supposedly secular institution called ‘court’ is called upon to decide what hurts someone’s religious feelings enough to constitute a punishable offence under section 153A, 295A and 505B or similar sections that deal with criminalizing speech regarding religion.

But that’s the reality we live in.

In a reality where a 2-judge bench of Supreme Court’s oral remarks are to the effect of: “Nupur Sharma is single handedly responsible for what’s happening in this country; she’s a security threat; her loose tongue set entire country on fire; she should’ve apologized to the whole nation, much earlier and without condition.”

Which is, not that much different from the position taken by people who want to behead her – and had already beheaded some others. In more ways than one too.

Both of them (SC and Jihadists) had not yet cared for a Bharatiya court, working in accordance with Bharatiya law, to pronounce her ‘guilty’ of blasphemy, written on an actual judgement. Which is more unfortunate in case of a constitutional top court of our country, but that’s a minor aberration best ignored by “fact-checkers”, if Left-Liberal eco-system is to be believed.

Since then a lot of other things have happened too.

The yo-yo of Blasphemy: What goes around, comes around.

People who were defending ‘Hurt Islamist sentiments’ by a Hindu as a justification for curtailing Freedom of Expression are screaming ‘Freedom of Expression under attack!’ with stabbing of Rushdie. But that’s not all.

The alleged fact-checker who declared Nupur Sharma ji guilty of blasphemy (again, before a competent Bharatiya court had an opportunity to decide it), has himself been arrested for nearly identical offences, for a tweet he’s posted in 2018.

A comment by a motor-mouth TMC leader and Parliament MP, about goddess Kali, in relation to a distasteful poster for a documentary made in Canada, had riled up Hindu religious sentiments as well.

Even the honorable court had a sudden change of heart after a massive uproar over its oral remarks. And the same bench that had, while using its own ‘tongue’, held Nupur Sharma’s ‘loose tongue guilty for what’s happening in entire country’ – hence not liable to get protection from multiple prosecutions for the same crime, again and again in different places – has come around and cited another recent SC judgement offering the same protection to alleged fact-chekcer, to club all FIRs against Nupur ji and transfer the cases to Delhi, while completely rejecting all demands of WB ruled by a tyrannical didi.

That’s the reality we live in.

And in such a reality – and not surprisingly either – every time such controversies erupt, debates about free-speech come down hard on masses like torrential rains in monsoons. Intellectuals, journalists, activists, politicians, artists – and now, with the advent of social media, general public too, rehash the same old debate about what we can say and what we cannot. And how far the punishment for punishable speech should go?

No doubt these debates have merit, and especially given how a minority opinion about blasphemy has been imposed upon majority through a colonial law, making it manifestly undemocratic as well.

But I’ll have to say, that such debates are, more often than not, limited to moral or philosophical aspect of the issue. No matter how hard I tried, I couldn’t find the content in usual information sphere going beyond that. At best it’ll re-look at history or blast away at the law being prone to misuse by State, on account of being too vague and wide-ranging.

Nobody is bothering to find out how, exactly, the law regulating speech and especially with regard to hurt religious sentiments, will work in any Bharatiya court?

How, exactly, a person is declared guilty of committing blasphemy in Bharat, legally?

As they say, need is the mother of invention. And in my case, in more ways than one.

I’m not a lawyer. I’m a writer. I hope to publish spy-thrillers one day. (For same reason: Need. To invent yourself what you couldn’t find in the market. Or at least to your satisfaction.) And any spy-thriller from a Bharatiya writer cannot ignore the reality of Pakistan. And how it came to be. Its underlying reason: Islamist separatism. And especially how the secessionist sentiment continued to hound us through decades of Islamist terrorism.

So it was this quest, being conscious of how…’difficult,’ the talk around religion in literature can be in our country, that led me to try and understand how I can be respectful of law while writing about such issues.

Because long before social media or TV, it was books and writers, who lived at the edge of the sword, of intolerant Abrahamic society and intolerant State.

As such, it’ll be apt to begin this discussion, about how a court, when it was at least allowed to work as intended, had decided such a matter in case of another book and another writer. Much more famous than I could ever hope to be.

And no, it is not Salman Rushdie.

Taslima Nasreen: The woman who lived…only to tell the tale of Blasphemy.

We ought to take notice when this famous writer from Bangladesh pitches in on the controversy raging about Nupur Sharma’s allegedly blasphemous comments that has, so far, resulted in unlimited number of death and rape threats to Nupur Sharma ji, (not to mention the people who supported her). But that’s not all. Islamists had run riots across multiple states, while no-one from left liberal eco system has condemned such unlawful and unconstitutional behavior – until it reached the stage of video-recorded terrorism and murder of innocent Hindus, but even here, it was half-hearted and full of both-sidism.

From Kanpur rampage to Belagavi in Karnatka; from violent rail blockades in Howrah to violent protests in Gujarat; from mere YouTubers to a Maulvi in Islamist terrorism infested J&K, in one form or another, Islamists have demanded unacceptable punishments for Nupur Sharma ji while left-liberal eco system has left no stone unturned to blame the victim.

Even elected representatives like Mr. Imtiyaz Jaleel have called for her hanging. Which, even if she’s found guilty for hurting religious sentiments, is not permissible under current law. So it’s clear the law he was referring to under which it is permissible, is called sharia, not Constitution of Bharat. Which should naturally raise doubts regarding his seriousness (if not loyalty) to the oath he’s taken as an MP.

Mr. Jaleel’s jumping on this controversy is not the least bit surprising considering his party’s similar behavior with Taslima ji as well. While everyone knows how Taslima ji was hounded out from not just her native country but from her initial 2^nd home in Bharatiya side of Bengal by Islamist mobs baying for her blood as well, what is less known, and perhaps deliberately forgotten due to left-liberal ecosystem’s concerted efforts to whitewash Islamist intolerance, is how his party had treated Nasreen.

In 2007, noted Islamist from AIMIM Mr. Akbaruddin Owaisi, brother of another hardline Islamist and AIMIM chief Mr. Asuddudin Owaisi , was booked for saying that if Nasreen came to Hyderabad again, ‘she could be killed.’ That was after she was already attacked by AIMIM goons in an event. 10 years later, in 2017, same Imtiyaz Jaleel who called for hanging of Nupur Sharma, led a mob at the airport to prevent Taslima ji from entering Aurangabad, reason being that she’d hurt sentiments of Muslims so so hard she won’t be allowed to set foot in Aurangabad. (Now thankfully renamed as Sambhaji Nagar.)

If after all these shenanigans, Akbaruddin Owaisi could be acquitted by court for his most infamous speech where he said ‘remove police for 15 minutes, then we’ll show who’s more powerful, 25 crore ‘us’ or 100 crore ‘them?’ then judiciary had indeed set the bar very very high for imprisoning people for their speech that could hurt people’s religious feelings or promote enmity between different religious groups. (Side note: In the same speech, merely seconds before he made that disgusting remark, Mr. Akbaruddin Owaisi had again gloated about how he’d hounded out Taslima Nasreen.)

***

So what is the jurisprudence when you’re accused of hurting religious sentiments?

The way stars have aligned on Nupur Sharma ji’s allegedly blasphemous comments, it becomes necessary that we read and enlighten ourselves about the controversy surrounding Taslima ji as well. Especially because the similarities are so striking – including the involvement of foreign governments and foreigners’ outraged religious feelings.

Taslima ji’s literary work was cleared from the charges of section 295A by Calcutta High Court in 2005 regarding the 3^rd volume of her autobiographical work, called ‘Dwikhnadita’. (Technically it was about a stay order, but, well…)

Everyone says the law around blasphemy is vague and wide – and I agree. Reading various judgements of various courts on such issues, you’d be forgiven, if suddenly you found yourself seized with an insatiable desire to tear away all of your hair, wondering whether there’s an actual, pre-defined, common and understandable logic that guides a court while deciding on these matters – or is it all just pure discretion depending on the weather of the day? But, the astute observations and methodology of Calcutta High Court (not yet renamed to Kolkata High Court) when it decided the matter of Taslima ji… it really needs to be applauded here, in so far as it makes the utterly incomprehensible into barely understandable for common folk.

There are several interesting observations that were made by the High Court in that case. So let’s get into it.

When you talk about section 295A, what does it say?

It says:

“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.”

Most people take it as a monolithic statement of law. But. It. Is. Not.

The Bengal High Court clarified that section 295A is a ‘list of conditions’, all of which need to be satisfied in the act for someone’s speech to be declared criminal.

In case of Taslima ji, it was her written words. Court said:

In order to attract the mischief of the provision of Section 295A in the present case, the following ingredients are to be satisfied, viz. a person (1) by written words, (2) with deliberate and malicious intention, (3) of outraging the religious feelings, (4) of any class of citizens of India, (5) insults or attempts to insult the religion or the religious beliefs of that class.

The 2^nd set of observations are the tests, devised throughout years, on which it is judged whether any speech is a punishable offense. Which roughly are:

1. The speech must be both deliberate and malicious. Being only either one is not criminal. Also, careless or unwitting remarks do not constitute the offence under 295A. Furthermore, even if it is made knowingly, in certain conditions it cannot attract punishment under 295A. (I’ll deal with those later.)
   
2. The ‘outrage’, such as it is, should be judged by standards of reasonable, strong-minded, firm and courageous persons, and not those of weak and vacillating minds, nor of those who scent danger in every hostile point of view.
   
3. The whole speech needs to be taken into account, not a sentence here, nor a sentence there.
   
4. The danger of violence should be clear and immediate, not remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression.
   
5. In case of section 153A, the presence of identifiable phrases for 2 or more communities in the speech is necessary. Mentioning just 1 community or dog-whistles do not come under the purview of section 153A.

And the two most important points:

• The law protects only religious feelings of those who are citizens of Bharat. Foreigners, no matter how powerful, cannot claim hurt religious sentiments in any Bharatiya court even if the speech was totally criminal and outside of law.
• The truth of the claims made in a speech is no defense for accused.

What do the last 2 mean?

It means no matter how powerful someone is, even he be a head-of-state of foreign nation, his hurt religious feelings will mean nothing in an Bharatiya court of law. The law, such as it is intended, is limited to Bharatiya borders and Bharatiya citizens. He has to get a Bharatiya citizenship 1^st, to claim hurt religious feelings. So foreigners, no matter how many in number or how powerful, have no locus standi on how a Bharatiya court will decide whether a speech is blasphemous or not, within borders of Bharat.

It also means that the most cited argument in case of all 3 people recently embroiled in alleged hate-speech controversies, is completely invalid in a court of law. Namely:

1. What Nupur Sharma ji said, is actually written in Hadiths.
2. What Mahua Moitra said, is an actual religious practice in Sikkim.
3. What alleged fact checker said, is actually a poster from a movie.

It. Does. Not. Matter.

You might say it’s a travesty of justice, and I’d agree, but that’s the reality we live in.

The definition about deliberate and malicious.

“Deliberate” generally means ‘knowingly’ in legal matters. Means the accused knew what they were talking about. That they knew that their speech might be insulting to other people.

“Malicious” here means ‘legal malice’. Which in turn means an act that has no legally justifiable purpose.

Let’s take an example: Suppose someone from our former colonial overlords’ country comes to a visit of Bharat, to see for themselves how the former brown slaves of their queen are doing with as complicated a concept as democracy? He goes to a temple with a guide because he doesn’t know the language. The guide misleads him into saying or doing something that could cook up religious sentiments of all devotees present, to the point of even a riot like situation, like “Jai maha kali who eats [insert any offensive food] and drinks [insert any offensive liquid]”, like Mahua Moitra did.

That foreigner, no matter how angry we feel about him – and not withstanding his colonial legacy either—cannot be held guilty of blasphemy in a Bharatiya court because he didn’t know what he was talking about. It wasn’t his fault. The guide on the other hand, cannot escape such scrutiny.

Whether it was ‘malicious’ would be judged by what excuse he gives for instigating such a situation? Did he want to attract public attention to the fact that some fake-Pujari who is not even a Hindu, is actually violating the rituals and secretly defiling the goddess by doing these things? It’s a stretch, but could work, possibly. But absolutely nothing would work if he just wanted to mock and hurt people’s religious sentiments.

Which brings us to the biggest of all requirements for someone to be declared guilty of criminal speech, or such instigation: Prosecution needs to prove mens-rea, i.e. Intention. That the speech was intended to be deliberately malicious.

Is each and every insult to religion punishable then?

Before it is determined in a court of law whether any speech was intended to be deliberately malicious, or any of the other tests are applied on it, we need to keep in mind about the ‘nature of offense’ punishable by section 153A, 295A and 505.

By their very nature, of outraging religious feelings of a whole section of society and hence being prejudicial to public tranquility and order, these offenses concern the whole of society. And society is represented by State. Such being the case, these offenses are considered ‘offences against the State’ itself.

There are a whole host of offenses that make the list, Sedition being one too.

Since these are affairs of the State, there’s a provision in the statute books to take into account opinion of State before such proceedings see the light of the day in a court of law.

Specifically, in the cases that deal with sensitive issues like freedom of expression with regards to hurt religious sentiments and other such matters, where there’s no clear definition of ‘exactly what and how much of it, can hurt unquantifiable things like feelings, and that too, of a whole section of society,’ the scope for blatant misuse of law by common citizens to harass any other citizen – and especially politically active people from the ‘other side’ – for personal vendetta or ‘personal feelings’ of hurt, instead of ‘societal level feelings of hurt,’ is very high.

As such, section 196 (1) , acting as a procedural safe-guard, says this:

No Court shall take cognizance of-

(a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or 2 Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860 ) or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860 ), except with the previous sanction of the Central Government or of the State Government.

What does it mean?

It means, unless concerned state government or Central government thinks a speech might’ve been provocative enough to create a law and order situation in society, thus constituting an offence against government itself and hence attracting punishment under section 153A, 295A or 505 (1), and, unless, following such determination, a government gives their prior sanction to initiate criminal proceedings against any such accused, no court shall take cognizance of any such matter on its own.

This means there’s an absolute statutory bar imposed against courts to even initiate judicial process, even ordering of the registration of an FIR, let alone deciding such matters on merits – unless government says so. Courts have been known to practically throw out the entire case if there’s no prior sanction from government.

I’ll demonstrate it later in a much more recent and widely publicized controversy. But the point is: State will determine, before anybody else – even court – whether any problematic speech is problematic enough to require court’s time and State’s money.

Which sets a principle to be followed even at a later stage, when court is actually considering the matter on merits, viz, whether such insult constitutes a whole ‘societal level feelings of outrage’ or is it just ‘insult perceivable by a few individuals?’

In short: Not each and every insulting speech is punishable for hurting religious feelings, even if they do exactly that. It’ll be punishable only when court determines that to be an aggravated form of insult, that outrages religious feelings of a whole class of people.

In the next part we’ll deal with how, possibly, the law applies in case of Nupur Sharma.