Guest Post: Rethinking the Mental Element in Section 295A of the Penal Code

(This is a guest post by Lahar Jain)

Amish Devgan v. Union of India, is a curious judgment which stands out amongst the religious hate speech litigation in recent times. The TV anchor was being prosecuted for uttering an insult against a saint, which resulted in 7 FIRs being lodged against him. While the legal issue at hand was limited to the quashing of these proceedings, the 128-page judgment takes a step towards refining the test to interpret S. 295A of the Indian Penal Code 1860 [“IPC”], which criminalises religious hate speech. However, as I argue in this post, it is a step in the wrong direction. 

S. 295A IPC punishes deliberate and malicious acts intended to outrage religious feelings of a class. The same has been invoked in the past years for a wide spectrum of circumstances, from the arrest of a comedian for a joke he did not make to prosecuting a Netflix show for a kissing scene shot near a temple. The rising intolerance in the form of FIRs and threats have not only compelled the creators of these works to withdraw their art, but also discouraged others from rejecting the dominant discourse in society. Hence, the central question I aim to answer is whether the law envisages the prosecution of these artists and other nonchalant speakers. Further, how does the law deal with the interplay of ‘offending’ speech and ‘intolerant’ beliefs, and which one does it protect.

The Supreme Court has answered this by devising a three-prong test centred around the tendency of speech to result in violence. The standard for all prongs was set to be objective, in the sense that the same would be fulfilled if a “strong-minded” individual would be outraged to violence after hearing it. I argue that the court has erred by adopting this harm-based objective standard for judging religious hate speech, whereas a subjective standard for the same is appropriate. Adopting an objective standard would either lead us to penalize the free speaker and protect the intolerant or acquit the ‘scurrilous scribbler’ causing public havoc. Both of which the law can't seem to desire. 

I will do three things to complete my argument: First, establish that the rationale behind criminalising religious hate speech is due to our model of secularism, rather than the public order exemption in Article 19(2). Second, I will use this understanding to reject the harm-based objective test propounded in Amish Devgan. Third, I will replace the Amish Devgan test with a subjective malicious intention test to argue that the same must be the sole criteria for deciding S. 295A cases. 

‘Positive Secularism’: A justification for religious hate speech laws

It is a social fact that most hate speech legislations in the country have spurred out of public agitation and demonstrations against ‘offensive’ speech. In fact, a pamphlet ‘Rangila Rasul’ ignited communal tensions across Punjab which ultimately necessitated the drawing up of S. 295A of the IPC. Understanding this context for the formulation of S. 295A is crucial because public order concerns forms the core of every case decided under this section ever since. Courts have continued to penalise speech based on its ‘incitement value’ or its propensity to violence, in furtherance of maintaining public order. But this is incongruous to the very raison d'etre behind criminalising the same: India’s model of secularism.

India’s model of secularism is unique because as opposed to the western model, it does not advocate for a strict separation of the state and religion. This means that state reformation of religion is encompassed in the same and the state is responsible to ensure that everyone has the freedom to practice and propagate their own religion. Hence this model of secularism places a positive obligation on the state to ensure that nobody infringes upon another’s right to religion. This almost horizontal right provides for the genesis and justification of religious hate speech laws in the country. 

Simplistically, when hate speech is meted out against a certain religion, the harm that is caused is the marginalisation of that class and a violation of their dignity. In a society that is inherently unequal and prone to skewed power relations, it is the positive obligation of the state to protect this class of people. Hence, any form of speech will have to be balanced against this positive obligation to decide which one prevails. This aligns with Anushka Singh’s understanding of sedition being criminalised due to the ‘public order’ conception as opposed to the ‘affective’ conception. The former would criminalise hate speech because it involves public violence. The latter would criminalise hate speech because it gives rise to ‘bad feelings’ against a particular class. While most speech crimes (like sedition) are legally based in the ‘public order’ conception, religious hate speech is different as the ‘harm’ being criminalised is the effect the speech may have on a class being able to exercise their right to religion.

The complexity lies in deciding the extent of public duty, and the proportional response in the form of a restriction that criminalises written or spoken words. S. 295A is constitutional to the extent that ‘insulting or attempting to insult the religious beliefs of a class’ violates the right to religion and dignity of a class. Having established that the core of religious hate speech laws in the country corresponds to its model of secularism rather than public order, it will be observed that Amish Devgan furthered an incorrect test based on an objective standard for S. 295A.

Amish Devgan: Who is a reasonable person?

The facts in Amish Devgan are quite crisp to the extent that the journalist is being prosecuted for uttering the phrase- “aakrantak Chishti aya... aakrantak Chishti aya... lootera Chishti aya... uske baad dharam badle” – while hosting a debate. Pir Hazrat Moinuddin Chisti is a saint, who is highly revered by the Muslim community. As many as seven FIRs were lodged against the petitioner, who approached the Supreme Court under Article 32 for interim relief. The primary argument put forth by the petitioner was that these “words were uttered inadvertently” and he did not have the malicious and deliberate intent to outrage religious feelings. The prosecution on the other hand, based their case upon the actual textof the phrase uttered to show that the petitioner wanted to malign a pious saint, hence intended to outrage religious feelings. It is important to note that the prayer of the petitioner was limited to quashing of the FIRs registered against him. However, the court makes extensive remarks on the definitional and legal standard for hate speech in the country. 

The judgement houses a curious reasoning of hate speech centred around disruption of public order, especially when Khanna, J. mentions that “a universal definition of 'hate speech' remains difficult, except for one commonality that 'incitement to violence' is punishable.” In fact the judgement settles the central question of the type of test to be applied quite simply by stating that it is an objective one. The only reasoning it provides is that a subjective understanding of hate speech would curtail the freedom of speech to the whims and fancies of the authorities. 

The court opined that the standard of S. 295A is fulfilled owing to three elements:

1. Content-based element – using words or any other gestures that are considered to insult the religion or religious beliefs of a class in the society. The standard to judge the same is an objective third-person standard. This has been defined in the case of Ramesh Dalal v. Union of India as: “the effect of the words must be judged from the standard of reasonable, strongminded, firm and courageous men and not by those who are weak and ones with vacillating minds.” This is an objective test.
2. Intent-based element – the section explicitly mentions that only deliberate and malicious intent is punishable. The primary indicators of intention is the language and words used itself. This means that if a reasonable person uttering these words would have intended to insult the class, then the standard is fulfilled. This is also an objective test.
3. Harm-based element – the harm perceived must have a proximate and direct nexus with ‘public order’. As laid down in Shreya Singhal v. Union of India, evidence must be produced to show the direct causal links between the impugned act and its effect. Further, the court adopted the American standard of ‘imminent lawless action’ which measures the propensity to violence after said speech. This is an objective test.

It is hence clear that the three-pronged test to decide matters of religious hate speech is an objective one according to the Supreme Court. It has also relied on case law from a variety of hate speech sections like S. 153A IPC, S. 66 IT Act, S. 505(2) & (3) IPC, to propound such a standard. 

Objectivity in a Subjective Test: A way forward?

The correct test to be adopted under S. 295A is this: if a person uses speech where the sole intention appears to be to marginalise or strip a class of its dignity, it will fulfil the standard of S. 295A. What is central in this test is the idea of subjective mens rea; which means that the person uttering the speech, their identity, the identity of the class of people addressed in the speech, the words and the context must all be taken into consideration while determining ‘deliberate and malicious intention’. This is because the same speech directed at different groups will have a different impact on their ability to practice their religion. This is why speech calling for genocide on a particular religious group must not be protected, as against an attempt of historical research into a religious leader. 

The causal link to be determined is not the one between the act of ‘insulting or attempting to insult’ and the harm perceived to be inflicted; but rather between the ‘deliberate and malicious intention’ and the act of ‘insulting or attempting to insult’. This means that as long as the speech is a result of this malicious intention of attacking the dignity of a class, it fulfils the standard. I will make three arguments to establish the same: 

Firstly, a textual and intra-textual interpretation of the section warrants that the consequence of the act (harm-based element) plays no role in deciding culpability. Further, that the act of ‘insulting or attempting to insult’ is not an objective content-based test, but rather a causal test with intention. For this let us first look at the text of the section:

S. 295A. Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. —

a. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, 

b. 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,

c. shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

(emphasis supplied)

Part (a) corresponds to the intention or mens rea, Part (b) corresponds to the actus reus and Part (c) corresponds to the punishment. It is important to note that there is no mention about the standard of harm that is perceived to be inflicted, or even a mention about disrupting public order. That is to say, that this section is oblivious to the effect that the malicious and deliberate act will have on the society, or even on that class of persons that is targeted. This is unique as most other IPC offences punish the commission of the offence (harm/injury), and not merely the act or attempt of the same. 

The IPC has provisions that punish four different levels of commission of an offence. It punishes merely intent, like criminal conspiracy; the preparation, like collecting arms for waging war; the attempt, like attempt to commit robbery; and lastly, the commission, like murder. In fact, S. 300 (1) explicitly mentions “an act by which murder is caused”, laying out the perceived consequence which is punishable. S. 295A merely punishes the attempt to insult religious feelings. The harm to be inflicted on public order or the incitement of violence does not amount to culpability. So, there is no reason for the ‘harm-based element’ to form the standard for judging S. 295A cases.

Secondly, precedent has been erroneously used to supply this standard. It is abundantly clear that the court imports this objective standard from several common law jurisdictions, primarily from the United States. While the court provides no justification for this, it must be noted that these precedents are inapplicable to the Indian courts due to its model of secularism, as explained in the previous section. Moreover, the Indian precedents are in complete opposition to interpreting S. 295A as an objective standard. 

Rangila Rasul while interpreting S. 153A IPC disregarded its effect on public order, and judged the pamphlet solely from the standard of intention. While interpreting content, which is the primary indicator of intention, the court made important observations on a ‘scurrilous attack and satire’ while acquitting the accused. After introduction of S. 295A, the court in Shri Shiv Ram Das v. Punjab, alluded to a subjective standard by stating that the manner of speech trumps the matter of it. Although the landmark judgement of Ramji Lal Modi has several discrepancies, as forwarded in my next argument, it laid emphasis on a “calculated tendency” to disrupt public order. This clearly alludes to a subjective intention of causing harm.

More recent judgements have strongly expressed their preference of a subjective standard, solely based on intention to judge religious hate speech cases. Prof. Laine, a U.S. scholar, found himself in an unnerving situation when his book ‘Shivaji: Hindu King in Islamic India’ attracted brutal opposition and attacks. The court quashed all the FIRs against the book and found that historical work, whose content may objectively hurt religious sentiments, would not be punishable as the author had no intention to do the same. It made an interesting observation regarding public order: that it was a positive obligation of the state to maintain public order, which goes to show that the same is not instrumental in fulfilling the standard of S. 295A.

Thirdly, the ‘content-based’ and ‘harm-based’ elements are inapplicable in deciding S. 295A cases, and the test for intention must be subjective. The reasoning of Ramji Lal Modi is highly inconsistent with the policy of religious hate speech clauses in India. It upheld the constitutionality of S. 295A IPC by reading ‘in the interest of public order’ more widely than ‘maintenance of public order’. The case conflated ‘public order’ and ‘malicious intent’. That is to say it assumed that every insult maliciously and deliberately made has an effect of public order. This is clearly erroneous. Hence, the tendency of speech to disrupt public order must have no bearing on culpability. This is for two reasons:

• First, if the court adopted an objective standard for harm. This would mean that culpability is dependent upon if a strong-minded individual would incite violence after listening to the speech. This standard would clearly defeat the purpose of protecting public order, as a society is never made up of these ‘strong-minded’ individuals.
• Second, if the court adopts a subjective standard for harm. This would means that culpability is dependent upon the state-of-mind of whoever the speech is directed to. This would prove to be a fetter on the right to speech, as a weak-minded and intolerant citizen would be able to curtail the same. Hence, defeating the purpose of Article 19. 

The test of intention must be a subjective one. S. 295A explicitly mentions “deliberate and malicious” intention, which is clearly a higher standard to be fulfilled. The standard to be applied is not what the judge himself, a strong-minded person, or even a weak vacillating mind, would have intended. Rather, it is subjective to the extent that we must place ourselves in the shoes of the person accused to decide whether the malicious and deliberate intention is present. I have hence argued that the court must dispense with the ‘content-based’ and ‘harm-based’ elements of their three-pronged test; and adopted a subjective intention test as the sole criteria for deciding religious hate speech cases. 

Conclusion

The goal of criminal law is deterrence, and can never be social control. This case comment has highlighted the trend of courts misunderstanding the religious hate speech standard in India, which came to a boil in Amish Devgan. Curbing speech on the basis of propensity to violence is incongruous to the aim of preventing marginalisation of communities. There exists an inherent antithesis in adopting an objective violence-based standard for religious hate speech, as dominant classes are more prone to be violent and less prone to marginalisation.