by - suraj sharma on 2/20/2011
Parts of the keynote address delivered by Lord Anthony Lester at the 17th Commonwealth Law Conference in Hyderabad earlier this month resonate strongly with the call for "muscular liberalism" given by the British PM a day earlier and seem quite insensitive to the cause for concerted tolerance which has propelled the cultural narrative of India this far into its history.
Lord Lester's opinions on the decadent and primitive nature of Indian Penal Code struck me as only partially right to the extent of his legal observation that the "IPC was enacted to suit British needs". However, his assertion that section 295-A of the IPC was spreading hatred and that it was against the spirit of free-speech seemed to me not only odd but grossly misinformed. For the following reasons:
1. Currently, Judicial decisions under this section tend to punish undertakings of "deliberate and malicious intention" towards religions or religious sentiments of people. If, however, our lawmakers decide to jump on the bandwagon of reckless liberalism and make amends to this part of IPC -- so that it becomes difficult to punish such acts -- it would clearly tantamount to a state of cultural lawlessness for the state will no longer be able to protect the dignity of its believing masses. While in an ideal regime of free-speech raising offence (regardless of context) can not be seen as a crime, raising religious offence is just as much a crime as mental harassment (and for roughly the same reasons too).
Moreover, attempts to ignore all offence raised by the letting-loose of free-speech standards will require parallel amendments in the law of contempt of court, and that will only mark the beginning of overhauling the whole legal framework under the constitution and ultimately reveal deep-seeded hypocrisies. A small but perfectly fitting example is the recent culling of the "I hate Ambedkar" page by Facebook.
2. Freedom of Religion, as guaranteed by our constitution, inherently contains a duty on every citizen to refrain from insulting the religious sentiments of others, there is however, a very human limit to how much the tolerant will tolerate the intolerant (i.e. those who do not perform this constitutional duty), Section 295-A makes sure that our civilization steers clear of indecision and confusion when faced with such a paradox of tolerance. Subsequent Judicial decisions upholding the need to be crystal clear about the secular nature of Indian multiculturalism have justified the use of Section 295-A as an effective legal tool.
3. It must be noted, also, that this section of IPC does not punish a person for mere criticism of religion or religious practices, rather it is the "wanton vilification or attacks upon the religion of any particular group or class or upon the founders and prophets of a religion" that is/are punished with fine and imprisonment (up to 3 years). Even by European standards, I doubt this language or the legislation it frames will seem anti-humanistic to anyone. It isn't always easy to clearly define and ascertain the nature of a religious attack but that hardly warrants a repeal of the section on the whole.
4. If then, Lord Lester like Richard Dawkins or Christopher Hitchens (whom the Marxist Philosopher Terry Eagleton collectively refers to as "Ditchkins") believes that it is religion itself that stands in the way of more liberal standards of jurisprudence, he needs to be reminded that Section 295-A is also implicitly protecting the rights of atheist citizens and if interpreted broadly enough, it protects the religious interests of the entire gamut of believing and non-believing people of the nation (including the followers of faiths yet to be created).
How then, may one ask Lord Lester, is this Section of the IPC hindering free-speech or encouraging hatred? It seems only to be an innocuous legal step forward from the dark ages and seems only to protect the innocent from the wicked. It does not take a legal genius to realize that the reconciliation of the universality of freedom of speech with the particularity of religious discipline can never occur by lowering our guard against the malafide intentions of misanthropes; yet this is precisely what any further amendment (in favor of so called free speech) or repeal of section 295-A will bring about in this hostile ecology of conflicting world-views.
Liberalism may flex its muscles at European gatherings but in India we must take every 'ism' - be it seemingly good or bad - with a grain of salt and remember that "by reluctance to criticize some of it, we may help to destroy it all". For any blind adherence to instrumental reason will breed insensitivity and ingratitude towards positive and life-affirming traditions. For example, what Lord Lester fails to notice about the statement that the IPC was "enacted to suit British needs" is the fact that some British needs are also plain Human needs. Needs that humans have yet to outgrow. Such as the need for knowing with certitude that one's epistemological, ontological and theological convictions - however simple or complex they might be - will be well respected and protected by the community at large until science completely eliminates the need to hold (m)any such convictions.
 From the report of the Select Committee preceding the enactment of Section 295(A)