Thoughts on economics and liberty

From s.153A (frying pan) into the fire (s.295A): Muslim fanatics forced British rulers to destroy free speech

So now we know how the existence of Muslim/Hindu fanatics persuaded even the great classical liberal Macaulay to impose restrictions.

Neeti Nair has written an excellent description of the circumstances surrounding the enactment of s.295A of the IPC. The full article, ‘Beyond the 'Communal' 1920s: The Problem of Intention, Legislative Pragmatism, and the Making of Section 295A of the Indian Penal Code’, published in Indian Economic Social History Review 2013 50: 317 can be download here.

I’m providing a few extracts below.

There are a number of well-known actors involved in this, including MK Gandhi, Lajpat Rai and MA Jinnah. Gandhi started the condemnation of a particular writing but he opposed government regulation of such bad writing. Lajpat Rai thought the bill ‘retrograde’ although he considered it to be a ‘necessity’ under the prevailing ‘emergency’. Jinnah defended the IPC section but hoped that it would secure the ‘very important and 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 criticism of a religion shall be protected’. That did not happen. We got the worst of all possible laws which has effectively destroyed all possibility of free speech in India.

We are suffering from British India’s failure to insist on liberty and tolerance. The result is ghastly and unimaginable. Gandhi would have been shocked at the total choking of free speech in India. So would have Jinnah.

Only Muslim fanatics AND NOW “Hindu” fanatics are able to rejoice. They’ve taken the ENTIRE country of 1.2 billion people hostage.

Time to put them in their place. Anyone who feels the urge to be violent upon seeing/reading a piece of paper must be put behind bars.



The failure of s.153 to stop “hate” speech

It was in the summer of 1924 that a pamphlet purporting to describe real events in the life of the Prophet Muhammad, made its appearance in Punjab. The pamphlet ‘Rangila Rasul’ came to the attention of a broader readership when it was mentioned by Gandhi in a long article on Hindu–Muslim unity. The Mahatma complained in Young India:

A friend has sent me a pamphlet called Rangila Rasul, written in Urdu. The author’s name is not given. It is published by the Manager, Arya Pustakalaya, Lahore. The very title is highly offensive. The contents are in keeping with the title. I cannot, without giving offense to the reader’s sense of the fine, give the translation of some of the extracts. I have asked myself what the motive possibly could be in writing or printing such a book except to inflame passions. Abuse and caricature of the Prophet cannot wean a Musalman from his faith, and it can do no good to a Hindu who may have doubts about his own belief. As a contribution therefore to the religious propaganda work, it has no value whatsoever. The harm it can do is obvious.

With these words Gandhi immediately raised the question of motive in the publication of such ‘literature’.

In late June word came of a ban and prosecution under section 153A of the Indian Penal Code (hereafter IPC).

In his statement before the court of C. H. Disney, Magistrate First Class, Lahore, the accused Mahashe Rajpal, publisher of the pamphlet, announced that he had been motivated by a desire for social reform. For over two years the case dragged through the trial court of the District Magistrate, then the Sessions Judge and finally the Punjab High Court.

The Judge of the High Court appointed for the case, Justice Dalip Singh, quoted the above extract from the ruling of the Sessions Judge and added that although the pamphlet was ‘undoubtedly … nothing more or less than a scurrilous satire on the founder of the Muslim religion…’ he could not find anything in it that showed ‘it was meant to attack the Mahomedan religion as such or to hold up Mahomedans as objects worthy of enmity or hatred.’

Dalip Singh felt the subject of a malicious satire on the personal life of a religious teacher was outside the purview of section 153A. Rajpal was acquitted.

The British were under great pressure from Muslim threats

The case was decided on the 4th of May 1927. The only immediate reaction came from the pulpit of the Jama Masjid in Delhi: Maulana Mohamed Ali predicted that ‘very serious consequences’ would follow the acquittal.

A deputation of leading Muslims called upon the Punjab Governor, Malcolm Hailey, to protest against the High Court ruling. The Governor’s response, widely published and commented upon, seemed to give a free pass to subsequent Muslim expressions of anger as it sympathised with those Muslims who felt ‘justifiably offended’ by the pamphlet and felt they had no ‘legal weapon by which its repetition could be prevented in the future.’ Hailey admitted that the judgement had left the government ‘much concerned’ for if this type of ‘religious controversy could be carried on with impunity’ there lay a ‘vista of endless trouble before the public’. He also let on that the government had consulted their legal advisers on the appropriateness of undertaking a modification of the law, as Dalip Singh had suggested.

The movement to demand a change in the penal code grew exponentially angrier in the days to come. When leaders in a series of public meetings in Delhi and Lahore referred to the sharia permitting death for defamation of the Prophet, members of the Hindu press began demanding that the preaching of violence be checked.

Maulana Mohamed Ali, who had been extensively quoted for suggesting that ‘… the demand that the Secretary of State should compel the Judge to resign is … the best illustration of Punjab humour’ now changed his stance, or at least emphasis, by announcing, to 70,000 Muslims assembled at Delhi’s Edward Park facing the Juma Masjid, that only an amendment of the law could prevent the lives of offenders from being in danger.

[Sanjeev: It is important to point out that this was not just a British doing, but a joint action by Indians involved in the process]

Non-official elected and nominated legislators would join hands with British officials to amend the law. By the 1920s colonial law was responding to the pressures of multiple constituencies—religious communities, as well as particular occupations such as the press, academia and lawmakers, who were taking crucial responsibility for the broader business of governing a diverse country.

To begin with, the Home Member J. Crerar proposed the bill as a measure to make ‘a scurrilous attack upon religion as the substantive matter’ so that it was no longer necessary to have to prove that feelings of enmity or hatred between different classes had arisen out of the publication in question for it to come under the law.

The first and most enduring set of objections to this proposal was, in fact raised by members from across the country. Abdul Haye and Lajpat Rai from the Punjab, M.A. Jinnah and D.V. Belvi of Bombay, Hari Singh Gour from the Central Provinces and T.A.K. Sherwani from the United Provinces all complained that the scope of the bill was too wide.

Spelling out the special circumstances that had given rise to this bill, the Punjabi Hindu representative Lajpat Rai thought the bill ‘retrograde’ although he considered it to be a ‘necessity’ under the prevailing ‘emergency’. He referred to the case of people who criticise their own religion and pointed out that social reform was closely tied with religious reform; foregrounding the problem of intention, Rai requested an explanation or change in language so that ‘bona fide criticism, historical research and all that leads to the interpretation of religious texts in such a way as to lead to progressive reform in social matters will not be affected’. M. A. Jinnah, too, felt that the Select Committee to which the bill would be referred, should strive to ‘secure this very important and 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 criticism of a religion shall be protected’. Jinnah added that on this matter there appeared to be no difference of opinion between the government and those seated on his side of the House.

Also in agreement with the principle of the bill was Mr S. Srinivasa Iyengar, leader of the Swarajists in the House who reminded his party that members could vote according to their individual conscience on the bill. Iyengar invoked Ashoka and declared that ‘tolerance’ had been ‘the law of the land’. Now that conditions had deteriorated, the bill was ‘long overdue’. He felt the ‘considerations of a united nation; the considerations of peace and goodwill…and the opportunity that we are denied for doing other things when people break each other’s heads’ made it imperative that the bill, ‘made word-perfect…and consistent with reasonable liberty of the Press, the people and all sections of the House’ be passed. Iyengar also touched on the larger question of what constituted religion when he argued that religion had become ‘but a plaything…but a toy and you use it for the purpose of your secular ambitions and for your secular quarrels and rivalries’. He concluded by appealing to the government for their ‘legislative assistance’ because they wanted the ‘sanction of legislation’ to prevent people from ‘profaning the sacred name of religion’.

But what, precisely, was the bill supposed to do? The key to confirming guilt under the new law would have to be around the ‘intention’ with which an author wrote about ‘religious beliefs’. Hari Singh Gour pointed out that the penal code already had three other classes of cases dealing with defamation: of the state, also known as sedition (124A); of a class (153A) and of a person (499 and 500). Was this new law simply about defamation of a new category, that of religion? If that was the case, Gour argued, perhaps it should be called the law of blasphemy. He also suggested that ‘intention’ had been analysed in two distinct ways: one, an express intention whereby ‘nothing is said to be done intentionally which is not done with that intention’ and two, a presumed intention whereby ‘every man is presumed to intend the natural consequences of his act’. Given the difficulties of the use of the term ‘intentionally’ Gour suggested its replacement with ‘Whoever with intent…’ This founder Vice Chancellor of Delhi University also spoke strongly for:

Historical writings, of a scientific character, writings even of a polemical character, are not all punishable and should not be punishable under the new clause or under section 153A of the Indian Penal Code, because by doing so you would be gagging the expression of free discussion, and I am perfectly certain that it is the object of the legislature here that there must be the maximum of personal liberty given to the people of this country to express their views without the fear that they would be prosecuted merely for an expression of opinion, that their intention may be to improve other religions, or it may be a mere matter of social reform, or their intention may be merely to publish the views which are the results of prolonged research.

Pt Madan Mohan Malaviya, a Sanatanist from Allahabad and Jhansi Division, along with several other members, opposed the motion for the circulation of the bill as he believed it would delay a measure that was desperately needed. A clear believer, he emphatically spoke for criticism to be ‘reverential, and well considered’. Alluding to the Rajpal case, Malaviya urged that he was ‘less concerned with the facts of the life of any of these glorious men of the world than with the fact that millions of my fellow-men hold each of them in reverence’. Malaviya spoke for writings that appealed to the intellect, rather than the heart… ‘his heart should be left unhurt, it should be respected, as one would wish his own heart to be respected’.

In a similar emotional vein, K.C. Neogy of Dacca Division admitted that he was ‘ashamed and pained’ at the circumstances that had made this law necessary. ‘The criminal law of a country is the index of its civilisation and its social conditions’ and this law would ‘stare us in the face and proclaim to the world the unhappy relations that subsist between the different communities in our land’. M.R. Jayakar, from Bombay, invoked Justice Ranade while asserting that the principle behind the bill had to be kept in mind:

the gist of the offence is an insult to the … religious feelings of the citizen. It is not the gist of the offence that a prophet is attacked or that an avatar is assailed … when the peace, harmony and goodwill of the community are disturbed in the name of religion an offence is committed against the State. It is not an offence against religion.

Jayakar asked that the Home Member ‘regard these manias, as I do, from the point of view of an Indian, and treat them as a temporary phenomenon’. He also hoped the government would deal with the real cause of the problem and would bring in, or allow a non-official member to introduce a measure that would make sure that ‘each conversion is really a psychological change of faith and not brought about or in an atmosphere of fraud, deception, promises, threats or even political considerations’. Jayakar thought that the surge in obnoxious publications attacking one or the other community was directly related to the rival movements for conversion that were then in vogue. This kind of legislation could not be a cure; it was merely an ‘expedient measure’.

These heartfelt arguments won the day as a motion to circulate the bill to ascertain, more widely, the views of all provinces, was defeated. Those in the minority such as D.V. Belvi, M.K. Acharya of South Arcot and Thakur Das Bhargava of Punjab deplored the ‘breathless haste’ with which this bill was being sent to the Select Committee; Bhargava and M. S. Aney of Berar also wanted the initiative for prosecution to lie at the hands of individuals, not a government which they regarded as biased; and Ram Narayan Singh of Chota Nagpur assailed the government for lacking the ‘courage … strength … [and] sense’ to legislate for civic rights; the ‘religious quarrels’ were merely another form of false consciousness.

The bill to amend the criminal law went into a Select Committee armed with arguably some of the best legal minds in the country—these included M.A. Jinnah, Srinivasa Iyengar and N.C. Kelkar. The principles underlying its amendment emerged out of the discussions in the assembly: The Select Committee members were particularly concerned to limit the scope of the bill so that it met with several of the objections already raised. As a result, the substantive part of the amended bill read:

After section 295 of the IPC, the following section shall be inserted, namely— 295A. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty’s subjects, by words, either spoken or written, or by visible representations, 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 two years, or with fine, or with both.

The words ‘deliberate and malicious’ were inserted to ensure that the section would be ‘both comprehensive and at the same time of not too wide an application’. The bill also came with three important minutes of dissent. The first, a Joint Dissenting Minute, signed by A. Rangaswami Iyengar, Arthur Moore, K.C. Roy, N.C. Chunder and N.C. Kelkar, opined that the bill would not achieve its purpose of deterring people from ‘scurrilous attacks upon religion’. The bill was deemed to be a ‘regrettable concession to intolerance’; it might even ‘increase fanaticism because it creates a new offence’. The dissenting members thought the existing laws were adequate to deal with a breach of peace. The second minute of dissent was a single line authored by Jinnah suggesting the offence be made non-bailable and the third minute, authored by N.C. Kelkar, deemed it better if an exception were added to the section. Such an exception would indicate that:

it would not be an offence under this section to criticize the principles, doctrines or tenets or observances of any religion, with a view to investigate truth, or improve the condition of human society, or to promote social and religious reform. Such an exception may seem superfluous, but would make things quite clear, and be a good guide to the Judge.

These dissenting minutes encapsulate the contours of the debate that ensued in the legislative assembly.

One of the main cleavages between those who supported and those who opposed the amended bill occurred along the lines of occupation. Several members of the press—A. Rangaswami Iyengar of Tanjore, K.C. Roy of Bengal, B. Das of Orissa felt that the bill did not provide adequate safeguards to the ‘honest publisher’ and the ‘honest printer’. Supporting such arguments, N.C. Kelkar added several other classes of people to those who needed protection: the ‘doughty doubter … the diligent sociologist … the absent-minded philosopher … the mischievous but kindly humourist’. He felt he would ‘go further and claim protection even for the apparently merciless satirist who uses the knife but only in the spirit of a surgeon when performing what may be a necessary operation for the good of society’. Clearly India’s early legislators had a keen appreciation for criticism of many kinds—from the academic disciplines of sociology and philosophy and the portals of the press to genres as complex and critical as satire.

In the course of the debate, one of the authors of the joint dissenting minute, K.C. Roy felt that the bill was inconsistent with the spirit of toleration that had characterized the work of generations of Englishmen and Indians. Roy argued that existing laws including the deportation act were sufficient to deal with men responsible for ‘communal disturbances’ in north India and confined the demand for the bill to a ‘handful of men in the Punjab’. Roy felt that the bill put a ‘premium on intolerance and bigotry’ and did not at all think the bill was a ‘progressive measure’.

Another dissenter, D.V. Belvi, addressed the limits of legislation and called on his fellow legislators to recognise that they were ‘legislating for many crores of people’. He questioned if they could genuinely call themselves ‘democrats’ when the bill had not yet been translated into the various vernaculars or circulated among the various provinces. Belvi proceeded to quote his favourite political philosopher Edmund Burke on ‘the consistency of those democrats who, when they are not on their guard, treat the humbler part of their community with the greatest contempt’ and reminded them that the Official Secrets Act had been rushed through the Imperial Legislative Council in just a few hours. Although not a member of the press, Belvi referred to the large-scale denunciation of the bill in the leading newspapers and suggested that the ‘opinions of people who educate the public’ also be taken seriously.

Others who strongly disagreed with the purposes of the bill included B.P. Naidu of Guntur and B. Das of Orissa. Naidu thought this was a piece of ‘panicky legislation’ that would deal a ‘death-blow to religious and historical research’. B. Das predicted that ‘classic books’ would not be published in India if this bill became law; there would be ‘no real discussion of religious questions, even if they be purely historical’…this was a ‘thoroughly bad piece of legislation’. Das also predicted that the bill would lead to further controversies by followers of various sects and of ‘Gurus, bogus Gurus, of bogus Avatars scattered all over India’.

Section 295A of the IPC was originally introduced to protect the ‘feelings’ of the ‘ordinary citizen’ from those who, ‘with deliberate and malicious intention’ insulted or attempted to insult the religious beliefs of any class of His Majesty’s subjects. In the eighty-five years since, section 295A has been used to intimidate a wide range of authors and artists.

The sorry saga of s.295A

This Wikipedia page shows how frequently this section has been used in India to muzzle free speech.

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Sanjeev Sabhlok

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