Open Access Research Article
COMPARING BLASPHEMY LAW: A STUDY OF THE LEGAL SYSTEMS OF INDIA, PAKISTAN AND UK
Published Paper
Article Details
COMPARING BLASPHEMY LAW: A STUDY
OF THE LEGAL SYSTEMS OF INDIA,
PAKISTAN AND UK
AUTHORED BY - DIMPLE PAREEK
108794T023GUGSOL205N005
Comparative Public Law
LLM (Criminal Law) I
2023-2024
THE SCHOOL
OF LAW, GALGOTIAS UNIVERSITY
TABLE OF CASES
|
S. No.
|
Name of the case
|
Citation
|
|
1.
|
Mahendra Singh Dhoni v.
Yerraguntla Shyamsundar
|
2017 SCC SC 450
|
|
2.
|
Ramji Lal Modi v. State of Uttar Pradesh
|
1957 SCR 860
|
|
3.
|
The Superintendent, Central
Prison, Fatehgarh v. Ram Manohar Lohia
|
1960 AIR 633
|
TABLE OF STATUTES
|
1860- The Indian Penal Code
|
|
1950- The Constitution of India
|
Abstract-
“Freedom to think as you will and
to speak as you think are means indispensable to the discovery and spread of
the political truth.”- Justice Louis Brandeis
Blasphemy law is said to be the most
abused law when it comes to suppressing the voice of the people and violating
their freedom of speech and expression and to practice any religion without
fear. Yet at least 95 countries
currently have laws which punish Blasphemy in one way or the other.[1]
Blasphemy is an act of insulting or defaming god which is considered sacred as
per the human beliefs for which the punishment may vary from a simple fine to
death penalty. It is a common belief that God protects us from the evil but
when it comes to Blasphemy, it is the people who become the protector of God
and that is what becomes problematic with politics involved in it.
This paper traces the footprints of
Blasphemy law from its origin to its existence till date. The objective is to
understand the concept of Blasphemy law and compare the existing laws in
different legal systems of the world including India, Pakistan and UK. The aim
is to comprehend whether Blasphemy law is justified in this modern world since
many western countries have already repealed the laws related to it. In order
to do a detailed study, the scope of this paper is limited to understand the
existing blasphemy law in India, Pakistan and UK and to analyze its
significance in today’s world.
Keywords- Blasphemy,
Freedom of Speech and Expression, hate speech, Comparative law, India.
Pakistan, United Kingdom.
1.INTRODUCTION
Blasphemy means
defamation or insult of the God or something which is considered as sacred
according to the human beliefs.[2] Many countries across the
world has Blasphemy laws which makes the act of showing reverence to a deity a
criminal offence. Blasphemy laws are covered under the laws of many countries
in one way or the other. Some consider it as defamation of religion while the
others consider it as a restriction to the freedom of speech and expression.
The existence of Blasphemy law can be traced from the times of ancient Roman
civilization.[3]
During those times, it was possible for an individual to stand against the
State but was impossible for one to speak against the superior power. Such laws
were not introduced with an intention to protect a religion against defamation
but to protect the honour of the sacred God. The purpose of Blasphemy law kept
changing with the emergence of different faiths. Today, many countries have
introduced Anti-Blasphemy laws and there are some secular countries which have
abolished the same. While there are the others who have brought reforms and
added hate speech or defamation in their criminal laws. Blasphemy in Islam is
taken as an action against Prophet Muhammad.[4] The holy Quran encourages
Blasphemy but does not specify any punishment for the same. However, Hadiths (a
source of Islamic law) do talk about Blasphemy as a crime. Islamic states
provide for stricter laws in case of Blasphemy. Amongst the Muslim majority
countries, Pakistan has the second strictest law related to Blasphemy after
Iran. Article 2 of the Constitution states that Islam is the religion of the
state[5]. Blasphemy of any kind is
prohibited under the law and the penalty may vary from fine to death sentence. India
being a secular country does not directly use the term ‘Blasphemy’ but do talk
about it indirectly under different provisions of law. Earlier blasphemy as an
offence was a part of canon law. In the 17th century it was declared
as a common law offence by the Court of King’s Bench, punishable by Common law
courts. The United Kingdom is a unitary sovereign state made up of four
constituent countries- England, Northern Ireland, Scotland and Wales.[6] Blasphemy law was
abolished in England and Wales in 2008 and from Scotland in 2021.[7] Northern Ireland remains
the only country within the Union which still maintains Blasphemy law.
The first part of the
Research Paper discusses about the meaning of Blasphemy law. Secondly, it talks
about the law of Blasphemy in India, Pakistan and the United Kingdom
respectively. Lastly, a comparison has been done in between the laws of these
states.
1.1.
Literature Review
Holzaepfel[8]
in his article
discusses about the dangerous impact of Blasphemy law on the society by tracing the roots of such law and by
comparing it with the present scenario. The article contains a very precise
information regarding the Blasphemy laws in accordance to different countries.
The first part of the article talks about the history and current usages of the
Blasphemy laws and the third chapter talks about implementation of Blasphemy
law in the Islamic states. The Author is of the opinion that there is no need
for Blasphemy law today because it curtails the right to free speech. According
to the Author, usage of Blasphemy law to supress the voice of the people is not
acceptable because for a free society, we need transfer of knowledge. Transfer
of knowledge is only possible if free speech is allowed. Critics have the right
to share their point of view. Furthermore, right to religion and freedom of
speech and expression can co-exist without restricting one another
unnecessarily.
Widelitz[9]
in the Article
discusses about the Blasphemy law in relation to the United States while
comparing the states of Saudi Arabia, Pakistan and Indonesia. In 1999 the
Organization for Islamic Cooperation introduced a resolution before the United
Nations Human Rights Council to create an international blasphemy law. However,
the author is of the view that the United Nations shall follow the path of
United States and not introduce blasphemy law because the countries having such
laws curtail the rights of their citizens by restricting the freedom of speech
and restrict the rights of religious minorities.
1.2. Scope and Objectives
The scope
of the Research Paper is limited to understanding the concept of Blasphemy law
and compare the existing laws in different legal systems of the world including
India, Pakistan and UK. The aim is to comprehend whether Blasphemy law is
justified in this modern world since many western countries have already
repealed the laws related to it.
1.3.
Research Questions
1. What is Blasphemy
law?
2. Discussing and
analysing Blasphemy law with respect to different legal systems of the world.
1.4.
Research Methodology
The Researcher has used explanatory,
comparative and analytical type of research for better understanding of the
topic. Further, Doctrinal type of research has been adopted to collect proper
data with the help of secondary resources including various articles, journals
and textbooks.
1.5.
Hypothesis
Blasphemy is one of the most abused
law when it comes to suppressing the voice of the people in the modern
times; suppressing the voice of the minorities and the rationalists. It is
often regarded as a reasonable restriction over the freedom of speech and expression;
and sometimes works as a hindrance in diverse countries by imposing the
religious beliefs of one community over the other.
2.
AN INTRODUCTION TO THE BLASPHEMY LAW
Blasphemy means
defamation or insult of the God or something which is considered as sacred
according to the human beliefs.[10] The act of blasphemy is
basically an action or gesture towards God which is insulting in nature. Many
countries across the world has Blasphemy laws which makes the act of showing
reverence to a deity a criminal offence. Blasphemy laws are covered under the
laws of many countries in one way or the other. Some consider it as defamation
of religion while the others consider it as a restriction to the freedom of
speech and expression. Different countries have different punishments for the
offence of insulting a God which varies from imprisonment to death penalty. While
there are other countries which never had such laws or have repealed the same,
after a period of time.
The existence of
Blasphemy law can be traced from the times of ancient Roman civilization.[11] During those times, it
was possible for an individual to stand against the State but was impossible
for one to speak against the superior power (God). Such laws were not
introduced with an intention to protect a religion against defamation but to protect
the honour of the sacred God. The purpose of Blasphemy law kept changing with
the emergence of different faiths. Today, many countries have introduced
Anti-Blasphemy laws and there are some secular countries which have abolished
the same.[12]
While there are the others who have brought reforms and added hate speech or
defamation in their criminal laws. In the contemporary times, freedom of speech
and expression is given more importance as it is a fundamental right of an
individual.
As a result, many
countries have abolished laws related to Blasphemy. While the other countries
face criticism as such laws are abused by the Government in power to supress
the voice of one community over the other.
3.
BLASPHEMY LAW IN INDIA
Blasphemy as a concept
was not introduced by God. It is human, the protector of God who introduced Blasphemy
as an insult towards his/her religion, God or scriptures. The term Blasphemy
comes from the Latin word ‘Blasphemare’ where ‘Blas’ means injury and ‘phemy’
means utterance, talk and speech.[13]
India being a secular
country does not directly use the term ‘Blasphemy’ but do talk about it
indirectly under different provisions of law. Section 295 of the Indian Penal
Code talks about defiling, destroying or damaging a place of worship or a
sacred object with an intention to hurt the sentiments of the people. This
clause was adopted to oblige people to respect each other’s religion.[14]
Section 295A of the
Indian Penal Code also prohibits a conduct done with malicious intent to offend
the religious sentiments or belief of a person. It was added to the Indian
Penal Code in 1927.[15] Throughout the history of
India, this section has been defined as a reasonable restriction over the right
to freedom of speech and expression to maintain public order.
This particular
provision of law was upheld by the Supreme Court of India in the case of Ramji Lal Modi v. State of Uttar Pradesh[16]
as legal. A magazine’s editor was accused of posting offensive articles
related to religion. However, it was held that his right was duly protected
under Article 19(1)(a) of the Indian Constitution[17]. However, it was held in
the case of The Superintendent, Central
Prisoner, Fatehgarh v. Ram Manohar Lohia[18]
that the limitation imposed in the interests of public order to be a
reasonable restriction should have a proximate connection and not something
which is too remote.
In the light of
above-mentioned cases, it can be said that right to freedom of speech and
expression is given more importance in India. But the fact cannot be ignored
that there has to have some kind of law which prohibits the insult of God or
religion because in a diverse country like India we never know what sparks
violence in between the communities.[19] It cannot be predicted
how people may react on Blasphemous statements. Sometimes it leads to the cases
of mob-lynching, riots or mass protests; and sometimes Blasphemous statements
are ignored by the general public. Therefore, in order to save themselves from
being charged under the relevant provisions of law, people restrict their
views. It basically curtails their right to freedom of speech and expression as
it creates fear in the minds of critics/rationalist/minorities which forces
them not to exercise their rights under the fear of over reaction by the
society.[20]
4.
BLASPHEMY LAW: ISLAMIC STATE PERSPECTIVE- WITH SPECIAL REFERENCE TO PAKISTAN
Blasphemy in Islam is taken as an
action against Prophet Muhammad. The holy Quran encourages Blasphemy but does
not specify any punishment for the same. However, Hadiths (a source of Islamic
law) do talk about Blasphemy as a crime and prescribes death penalty as well. But
it has been specified that death penalty can only be given in case of treason
involving harm to the Muslim community. There are different traditional schools
of Muslim law which talks about Blasphemy but the punishment varies depending
on the Blasphemer. The punishment is different for men and women and also
depends on the fact that the Blasphemer is a Muslim or non-Muslim. In the
contemporary times, different countries have different laws related to
Blasphemy. However, the different Muslim school of laws have different things
to say on Blasphemy and its punishment. Hanafi school of law provides for
punishment for those who renounce their religious beliefs.[21] People
have a choice of returning to Islam and if they don’t then they can be punished
with death penalty or can be fined. Maliki school of Muslim law defined
Blasphemy as a serious offence.[22] It
provides for different punishments for male and females. A Muslim woman is
never provided death penalty, she is punished till she does not repent and
returns to Islam. Shafi’i school provides for the provision of repentance while
Hanbali does not.[23] Ja’fari
school of law has different provisions for Muslims and non-Muslims.[24] A
Muslim committing blasphemy can be punished with death penalty but a non-Muslim
is asked to convert into Islam. And if one doesn’t then the person is killed.
That’s all about the different schools of Muslim law. Islamic states provide
for stricter laws in case of Blasphemy. Sharia law is the basis of the legal
system in Islamic states like Saudi Arabia. There is no separation between the
State and the religion. It has been stated in the Constitution of Saudi Arabia
that the kingdom of Saudi is sovereign Islamic state with Islam as its
religion; God’s book and the Sunnah of the Prophet are its Constitution. Fine,
imprisonment or lashing by whip, torture and even death penalty is given as a
punishment for blasphemy in Saudi Arabia. In 2015, a court in Bukairia found
Muhammad Al-Harbi, a high school chemistry teacher, guilty of blasphemy. All he
did was talked to the students and the faculty about the Christianity and the
causes of Terrorism around the world. The court sentenced him with 40 months of
imprisonment and 750 lashes.[25]
Similarly, Egypt’s legal system also works as per the Sharia law. There penal
laws talk about Blasphemy and provides with confinement or penalty as a
punishment. Coming to the state of
Pakistan. The official name of Pakistan
is ‘The Islamic Republic of Pakistan.’ Amongst the Muslim majority countries,
Pakistan has the second strictest law related to Blasphemy after Iran. Article
2 of the Constitution states that Islam is the religion of the state.[26] Blasphemy
of any kind is prohibited under the law and the penalty may vary from fine to
death sentence. According to the Reports, around 1500 people have been punished
for Blasphemy in between 1987-2017.[27] The
roots of the provision of Blasphemy in the Pakistan Penal Code can be traced
from the Indian Penal Code which was drafted by the British as per their
convenience.
The Blasphemy law of Pakistan states
that any kind of direct or indirect derogatory remarks on Prophet Muhammad shall
be punished with death; imprisonment for life and fine. Section 295 to 298 of
the Pakistan Penal Code talks about offences related to religion. It includes
offences such as defiling a place of worship; insulting religious beliefs; disturbing
religious assembly; trespassing on burial grounds; utterances wounding
religious feelings respectively. In 1980, Section 298A was inserted making use
of derogatory words or gestures in respect of persons revered in Islam a
criminal offence.[28] Section
295B was added in 1982 which made defiling of Quran as a punishable offence.[29] In
1986, Section 295C was added to the Pakistan Penal Code making defiling of the
name of Prophet Muhammad a punishable offence.[30]
Such person defiling the name of Prophet Muhammad can be provided death penalty
or life imprisonment under the provisions of the law. Thus, the laws of
Pakistan have been amended several time to make Blasphemy a criminal offence
punishable by death sentence.
Recently, a court in Pakistan’s Rawalpindi
awarded death sentence to four individuals for sharing content on social media,
insulting Prophet Muhammad.[31]
Another infamous case is of Asia Bibi, a Christian living in
Pakistan.[32] She was
convicted in 2010 with death sentence after being accused of insulting Prophet
Muhammad. Many protests took place by different Muslim parties against her
acquittal and she became the first woman to be sentenced to death under the
Blasphemy laws. However, she was acquitted by the Supreme Court of Pakistan in
2019 after which she flew to Canada. It is a matter of distress that her
supporters which included the Minister of minority affairs as well as the
Governor of Punjab were assassinated just because they extended their support
to her.[33]
5. BLASPHEMY LAW IN THE VIEW OF WESTERN COUNTRIES
Now that we have discussed about the
Blasphemy laws in India and Pakistan, this chapter covers the law of Blasphemy
as it exists in the western countries, focusing on the United Kingdom. Islam,
Judaism and Christianity are the three major religions followed in the west. Committing
blasphemy is taken as an unforgiveable sin in Christianity. It is condemned in Christian
theology. If we look at the words of Saint Thomas Aquinas, he says that, if we
compare blasphemy with murder then blasphemy is more serious crime than committing
murder because blasphemy is against the God.[34]
In Christianity there is also a provision for reparation of blasphemy. Reparation
basically means to repair something which has gone wrong.
There are specific prayers through
which one can come back to Christianity and confess his/her sins with all his
heart. Special prayers are also held at the Catholic Church for reparations in
case anyone commits the offence of Blasphemy. Capital punishment can be awarded
for the same which may be in the form of hanging or by stoning.
5.1 Blasphemy law in United Kingdom
Earlier blasphemy as an offence was a
part of canon law. In the 17th century it was declared as a common
law offence by the Court of King’s Bench, punishable by Common law courts.[35] Blasphemy
against the Christian religion was seen as blasphemy against common law in the
United Kingdom. Atheists were also punished at that point of time. Any kind of
insult of the holy book or the God by any action or gesture was punishable by
the court.[36] The
punishment included death penalty, imprisonment and fine. But in 1676, the
death penalty was abolished.[37] Later
on, in 2008 Blasphemy laws were abolished in England and Wales as well.[38]
It is not illegal to
Blaspheme in the United Kingdom. This indicates that there are no legal
restrictions on the expression of opinions deemed disrespectful or derogatory
to religious beliefs. It does not imply that actions or words committed in the
name of religion are unrestricted. For instance, inciting religious hatred- which
is defined as harbouring animosity towards an individual or group of
individuals because of their religion is prohibited.[39] Additionally, it is
forbidden to treat someone abusively on the basis of their religion. This
includes threatening someone with harm or making derogatory remarks online. Furthermore,
the United Kingdom is committed towards allowing people to express themselves
freely, including the ability to hold opinions that are disrespectful to the
people belonging to other religion. However,
there are restrictions on what people can say and do in the name of religion.
6.
A COMPARATIVE ANALYSIS OF BLASPHEMY LAWS IN INDIA, PAKISTAN AND UNITED KINGDOM
Blasphemy laws got
emerged across the globe when different religions were introduced. Every
individual was over-protective towards their religious practices. As a result, Blasphemy
laws were the need of the hour to make people bound by the rules and regulations
to avoid widespread protests and to avoid communal disturbances. But this was
during the ancient times when people were not as adaptive as we are today in
the 21st century.[40] Today, we have a habit of
living with diverse cultures, traditions, religion etc. Also, we have become
civilized and are bound by the law of our land. Therefore, the question is
pertinent whether we still need Blasphemy laws? Because the Constitution of
India empowers its citizens with the Fundamental Right to freedom of speech and
expression.[41]
Although the right comes with reasonable restrictions; can Blasphemy be covered
under the same? If putting forward someone’s view hurts the religious
sentiments of other’s, then does it mean that the fundamental rights of other
can be curtailed? It is a matter of
debate and as a result there are many countries in the world which have the
strictest laws in case of Blasphemy while there are the others who have
abolished such a law. In India, we do not directly use the term Blasphemy but we
do have laws in this regard.
In this paper, since we
have discussed about the Blasphemy law of India, Pakistan and United Kingdom;
let’s analyse the laws to come to a conclusion whether we still need such laws
or not!
The United Kingdom is a
unitary sovereign state made up of four constituent countries- England,
Northern Ireland, Scotland and Wales.[42] Blasphemy law was
abolished in England and Wales in 2008 and from Scotland in 2021. Northern
Ireland remains the only country within the Union which still maintains
Blasphemy law.[43]
When Blasphemy as a law was introduced in the United Kingdom, it was punishable
with death because it was taken as an offence towards Christianity. In 1949, it
was declared as a dead letter law.[44] However, many people were
convicted for the same in 1977. Therefore, a renewed call for abolition of this
law was taken in 2008 where under the Criminal Justice and Immigration Act,
2008 Blasphemy law was abolished in England and Wales.[45] In 2021, it was repealed
by Scotland as well. The reason behind abolition of Blasphemy law from the
States of United Kingdom was simply that the law was contrary to the principle
of free speech and the Human Right laws adopted by the United Kingdom, which
protects freedom of expression.[46]
In addition to that,
almost all the Muslim-majority countries have Blasphemy laws where the
punishment varies from fine to death sentence. Pakistan inherited the Blasphemy law from the
former British colonial rule who introduced it to decrease the Hindu-Muslim
violence in the Indian Subcontinent. The law was introduced in 1860 and further
strengthened in 1927. Then India and Pakistan got divided into two different
countries but the origin of their laws remained the same. As a result, Pakistan
further amended the law related to Blasphemy to introduce stricter punishment
for those who in any way hurt the religious sentiments of Islam. Let’s not
forget the fact that Pakistan as a country was formed to protect the interest
of Muslims and as a result it is not a secular country like India.[47]
So, Pakistan as an
Islamic State derived the basis of Blasphemy law from the former British
colonial rule. The United Kingdom except Northern Ireland has already abolished
Blasphemy law on the pretext that it violates the freedom of speech and
expression. Then the question arises that on what basis India is still
continuing with the age old law which has been abolished by its own makers?
The question is
pertinent to the whole issue because India is a secular country where everyone
is allowed to practice, propagate and profess the religion of their choice. Above
that Article 19 (1) (a) of the Indian Constitution guarantees right to freedom
of speech and expression with reasonable restrictions.[48] Blasphemy law curtails
this fundamental right of a citizen of India.
In a case, comedian Kiki
Sharda, known for his work in the Kapil Sharma Show was arrested under Section
295A of the Indian Penal Code for hurting the religious sentiments of a Sirsa,
Haryana based religious sect Chief Gurmeet Ram Rahim. However, he was granted
bail after 14 days of judicial custody since his intention was purely to
entertain people and not to hurt the religious sentiments of a particular
community.[49]
In the case of Mahendra Singh Dhoni v.
Yerraguntla Shyamsundar (2017), the Court held that Section 295A does not
criminalize every act which in any way insult the religious feelings of others.[50] It only criminalizes
those acts which are done intentionally with malicious intent to hurt the
religious feelings of others.
Section 295A was held
Constitutional by a five-bench judge in the case of Ramji Lal Modi as discussed in the previous chapter. So, it is a
monumental task to struck it down or overturn the ruling. However, keeping in
mind the idea of free speech, such laws need to be abolished because having a
different opinion then others is not a crime. Contrasting opinions shall be
welcomed otherwise it will make a mockery of Democracy.
In addition to that,
International Covenant for Civil and Political Rights has been acceded by India
which states that it is the duty of every country to protect the right to
freedom of speech and expression of its citizens.[51] So, India shall keep in
mind the provisions of International Covenants as well.
7.
CONCLUSION
The term Blasphemy comes
from the Latin word ‘Blasphemare’ where ‘Blas’ means injury and ‘phemy’ means
utterance, talk and speech.[52] It basically means
defamation or insult of God or something which is considered as sacred
according to the human beliefs.
The concept of Blasphemy
was introduced in those times when God was considered as the only sovereign; therefore,
the insult of God was not accepted by the followers who thought of themselves
as the Protector of God. Any gesture or word against God would spark violence
amongst the Communities and as a result the law of Blasphemy was introduced to
maintain peace. It was introduced to create fear in the minds of the people
that if they say, or do anything which hurts the religious sentiments of others,
then it will be considered as a crime for which punishment may vary from fine
to death sentence. The concept was developed in those times when the concept of
secularism and democracy were not established. Therefore, different legal
systems of the world had different laws related to Blasphemy.
United Kingdom had laws
related to Blasphemy which were abolished by England and Wales in 2008 and
Scotland in 2021.[53] India and Pakistan
adopted the old laws enacted by the British during the Colonial rule. Pakistan
being an Islamic State is stricter when it comes to the matter of religion and
therefore, even death sentence is provided in cases related to Blasphemy. The
biggest concern is about India. India is
a secular country where the State has no religion of its own. Its citizens are
allowed to profess, propagate and practice any religion of their choice. The
Supreme Court of India safeguards the Fundamental Rights of its citizens where
one such right includes the Right to Freedom of Speech and Expression. In such
a case, there is no need for the existence of Blasphemy law in India because it
curtails the Fundamental Rights of its citizens. Rationalists, minorities,
atheists have an opinion of their own. Being the largest democratic country in
the world, every citizen of the country has a right to speak freely without the
fear of being charged for an offence. Furthermore, if the country from which we
adopted such laws have done away with it then there is no point for India to
still continue with such laws because such laws are not made for a secular
country like ours. Instead, the government shall work towards sensitizing
people and making them tolerant as tolerance is biggest weapon for diversity.
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Article Information
COMPARING BLASPHEMY LAW: A STUDY OF THE LEGAL SYSTEMS OF INDIA, PAKISTAN AND UK
Authors: DIMPLE PAREEK
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/12/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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