By Aparna Pande
This article appeared in Indolink on December 15, 2007

I do not agree with what you say, but I will defend to the death your right to say it.” -Voltaire 

Over the last few weeks, some editorials and articles in leading Indian newspapers have proposed the need for India to have a Blasphemy law. The reason put forth has been that there is no consensus on the subject of freedom of creative expression and, therefore, maintenance of social harmony should be considered more important.

The examples cited by advocates of a Blasphemy Act by parliament include the recent controversy over a song from Madhuri Dixit’s latest movie; Taslima Nasreen’s new book; the painting of Hindu goddesses by MF Husain. Even earlier incidents like the Dera Sacha Sauda controversy has been invoked to make the case for making blasphemy a punishable offense under law. In each case there was violence on the streets and in each case certain concessions were made in the creative expression realm. The song in Ms Dixit’s movie was changed; Ms Nasreen removed certain lines from her book; Mr. Husain went into self-exile; and the Dera chief proffered a public apology.

 

All these cases were justified on the grounds that creative expression should not exceed certain limits. It is argued that Mr. Husain likes scandalizing Hindu sentiment. The violent attacks against Ms Nasreen, to the extent of a fatwa to kill her on sight, have been justified on the grounds that her writings were anti-Islam.

 

On these grounds the argument is made that India needs to enact a comprehensive blasphemy law so that such issues come under judicial purview. Instead of being tried under the Indian Penal Code as incidents of law and order they need a separate legal regime, according to the blasphemy law’s proponents.

 

The Preamble to the Indian Constitution says India is a ‘Secular’ country and grants all its citizens “Liberty of thought, expression, belief, faith and worship.” The Indian Constitution guarantees certain fundamental rights which “prohibit discrimination on grounds of religion, race, caste, sex or place of birth” (Article 15); “protection of certain rights regarding freedom of speech” (article 19); Articles 25 through 30 allow freedom to practice any religion, manage religious affairs, set up educational institutions and protect minority interests.

 

These do not depict random stray decisions by some political leaders in 1947-49 but rather the views of the majority of modern India’s founding fathers. This was their vision for the future, their attempt to ensure that every religion and every individual in the country felt being a part of the country.

 

Secularism is part of the very fabric from which the Indian state and society have been framed. Secularism in the Indian context refers to the state treating all religions and sects as equal. The context of partition and the subsequent years was such that there was a need to ensure that the fabric of India itself did not break apart with religious riots and violence. Secularism was an attempt to make everyone who lived in India feel that India was their home, irrespective of their religion, culture or faith.

 

Also, if we look around us we see many countries, including some of our neighbors, who implemented blasphemy laws only to invite terrible consequences for human rights and social cohesion.

 

Britain had an ancient blasphemy law which was based on decisions made by courts during the nineteenth century. In those cases the concept of blasphemy was restricted to protect “the tenets and beliefs of the Church of England.” A 1977 prosecution said that “blasphemous libel was committed if a publication about God, Christ, the Christian religion or the Bible used words which were scurrilous, abusive or offensive, which vilified Christianity and might lead to a breach of the peace.”

 

Pakistan’s Blasphemy laws were enacted in 1986. According to the laws if an individual goes to the police and simply accuses someone of blasphemy, the police have to make an immediate arrest before an investigation. The wording of these laws is also vague and open-ended. The law does not require proof of the actual state of mind of the accused and disregards the element of intention. Human rights organizations say these laws have been misused against religious minorities and to pursue personal vendettas.

 

People asking for a blasphemy law for India do not seem to realize that implementation of these laws will not bring about any clarity in prosecution nor will it result in a balance between religious freedom and freedom of expression. Most likely, there would be a rise in blasphemy charges often on frivolous or malicious grounds. It could also result in instigators being motivated by religious bigotry, personal prejudice, selfish gain or professional rivalry.

 

The prosecution would have to rely on unsubstantiated oral testimony or statements and judicial proceedings, which often last for years, could result in innocent victims languishing in jail on blasphemy charges pending trial or appeal.

 

Given India’s religious, cultural and ethnic diversity we need laws that protect the freedoms given to us by our Constitution. We do not need the government or the judiciary deciding what is or is not religion or what constitutes blasphemy. That decision should continue to lie with the people.

 

India’s majority religion is Hinduism, which does not lay down laws parallel to the Abrahamic faiths and none of its texts claim to be scripture or the word of God. Hinduism’s own diversity begs the question as to what might be the rules or guidelines under which we define blasphemy.

 

In today’s world, there is a need to be more open and more inclusive. To introduce a blasphemy law means withdrawing into a world which will take away the freedom enshrined in the Indian ethos.

 

I agree on the need for respecting the religious sensitivities of all people. But this should be done through social and cultural processes rather than by an iron-clad law. Indians have the right to freedom of creative or artistic expression. No freedom is ever absolute and there is, of course, a need for balance. The way forward is not a Blasphemy law but rather learning to live together in peace and harmony and respecting one another’s beliefs and sensitivities.