Balancing Artistic Freedom And Religious Sentiments - Legal Perspectives And Challenges In India
Author: LawSphereX
Category: General Law
Published:
Updated:
BALANCING ARTISTIC FREEDOM AND RELIGIOUS
SENTIMENTS: LEGAL PERSPECTIVES AND
CHALLENGES
IN INDIA
Santhanu. S, Govt Law College, Thiruvananthapuram
ABSTRACT
Art can be defined as the intentional creation of works that evoke aesthetic, emotional, or intellectual responses through various forms such as visual arts, music, literature, and performance. The conflict between artistic freedom and religious sentiments has a long history. “MF Husain’s Paintings: The renowned Indian artist faced controversy and legal challenges over his paintings depicting Hindu deities, which were deemed offensive by some groups. Another instance is, Paanch” (2001): Anurag Kashyap’s film, which was not released due to its controversial content, faced significant opposition related to religious sensitivities. Artistic expression with the protection of religious sentiments is essential in India & the world.
This paper examines how Sections 299 and 302 of the Bharatiya Nyaya Sanhita (BNS), which address acts affecting religious feelings, are applied in cases involving artistic works in India. It also explores whether hurting religious sentiments falls as a ground for restriction under Section 5B(1) of the cinematograph Act, 1952, in light of judicial precedents. Further, it addresses whether Article 19(2) restricts artistic and religious expression. The paper will also discuss the Censor Board’s limitations in regulating content on social media platforms and when and where the line must be drawn when artistic works hurt religious feelings. Keywords: Artistic works, religious sentiments, sections 96,299 & 302 of BNS, section 5B(1),cinematograph act, censor board & social media
INTRODUCTION
The Constitution of India allows some Fundamental Rights to its citizens, outlined in Part III. Two major Fundamental Rights are relevant here. One is the right to freedom of speech and expression under Article 19(1)(a)1. It includes, expression of views through artistic works. But these rights are subject to the “reasonable restrictions” specified in Article 19(2)2. The second Fundamental Right is the freedom of conscience and religion under Article 25(1)3, which states: “Subject to public order, morality, and health, and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion,” subject to the restrictions outlined therein. The initial question is weather there is a fundamental right to not have ones religion insulted.
Sections 2994, and 3025 of the Bharatiya Nyaya Sanhita, 2023, provide protection against insulting of any religion. Section 299 addresses the act of Deliberate, malicious acts, that was made with an intention to outrage religious feelings of any class by insulting its religious beliefs or religion itself . Section 302 deals with the offense of intentionally hurting someone’s religious feelings by uttering words, making sounds, gestures, or placing objects in view. The second question is the extent to which these sections apply to artistic works alleged to insult a religious culture. Cinematograph films are artistic works regulated by the Cinematograph Act, 1952 in India. Section 2(c) of Cinematograph act, 19526 defines cinematograph as apparatus for representing moving pictures or a series of pictures. The Act establishes the Board of Film Certification.
For a film to be displayed, it must be certified by the Board. Section 5B(1)7 of the Act allows the Board to deny certification based on considerations including the sovereignty and integrity of India, national security, friendly relations with foreign States, public order, decency, morality, defamation or contempt of court, or the likelihood of inciting any offense. The final question
1 NDIA CONST. art. 19, § 1(a).
2 INDIA CONST. art 19, cl. 2
3 INDIA CONST. art 25, cl. 2
4 THE BHARATIYA NYAYA SANHITA, 2023 § 299,NO. 45, acts of parliament 2023(India)
5 THE BHARATIYA NYAYA SANHITA, 2023 § 302,NO. 45, acts of parliament 2023(India)
6 THE CINEMATOGRAPH ACT, 1952 § 2(c), NO.37,acts of parliament 1952(India)
7 THE CINEMATOGRAPH ACT, 1952 § 5B(1), NO.37,acts of parliament 1952(India)
is the applicability of Section 5B(1) in this context. The paper will also delve into limitations faced by the censor board in controlling social media contents.
1. Weather there is a fundamental right not to have ones religion insulted?
Firstly, the distinction between Article 25(1)8 and Article 15(1)9 has to be discussed to avoid any confusion. The difference is both nuanced and significant. Article 15(1)10of the Constitution prohibits discrimination by the State on the grounds of religion, race, caste, sex, or place of birth. This provision ensures that no individual shall suffer any disadvantage or denial of rights solely because of their religious identity. In contrast, the issue of insulting a religion relates to the broader concept of safeguarding the dignity of religious beliefs and practices from public scorn. Article 25(1)11 of the Indian Constitution explicitly allows every individual the fundamental right to “freely” profess, practice, and propagate their religion. The inclusion of the word “freely” is not incidental or arbitrary but a deliberate choice by the framers of the Constitution.
It carries substantial importance, as every word in Part III of the Constitution (Fundamental Rights) must be construed with precision to ensure the protection and enforcement of these rights without creating ambiguity or contradictions. For an individual to “freely” profess, practice, or propagate their religion, it is imperative that the religion is insulated from undue or unnecessary insults. Freedom of religion cannot be truly exercised if that religion or its followers are subject to constant ridicule, mockery, or defamation. Thus, the term “freely” can be interpreted expansively, suggesting that religious practice must be free not only from external interference but also from any form of derogatory or demeaning treatment that hinders the right of an individual to profess or practice their faith with dignity.
Consequently, if the right to freedom of religion is recognized as a fundamental right under the Constitution, then, by extension, the right to not have one’s religion insulted or disrespected should also be accorded some form of constitutional protection.
8 INDIA CONST. art 25, cl. 1
9 INDIA CONST. art 15. cl. 1
10 Id. At 9.
11INDIA CONST. art 25, cl. 1
Article 19(1)(a)12 of the Constitution guarantees the right to freedom of speech and expression, which includes the expression of ideas, opinions, even through artistic works. However, this freedom is not absolute and is subject to reasonable restrictions under Article 19(2)13, particularly when such expression is made with a malicious intent and it infringes upon the religious sentiments causing a public outrage. The right to freedom of expression may be curtailed if it is shown to incite hatred, defame, or intentionally hurt religious feelings, leading to disharmony or violence. Offenders who violate these restrictions may be prosecuted under penal provisions such as Sections 299 or 302 of the Bharathiya nyaya sanhitha, which specifically deal with offenses related to religious sentiments.
However, the courts in India have not considered the question as to weather there is a fundamental right to not to be insulted of ones religious belief. Such offences are prosecuted under the penal laws of India.
2 Artistic Expression and Religious Sentiments
The Scope and Limits Under Indian Penal Laws Under the Indian Penal Code (IPC), deliberate outraging of religious sentiments was classified as a criminal offence, specifically under Sections 295A14 and 29815. With the enactment of the Bharatiya Nyaya Sanhitha (BNS) in 2024, Sections 299 and 302 of the BNS now address these offences. Although the law has undergone revisions, the essential components of the offences remain consistent between both the IPC and BNS. A thorough analysis of each section, along with its essential ingredients and applicability, particularly in the context of artistic works, is essential for a deeper understanding. Section 299 of the Bharatiya Nyaya Sanhitha corresponds to Section 295A of the Indian Penal Code.
Section 295A of the IPC is as follows: “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, 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, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. ”
12 NDIA CONST. art. 19, § 1(a).
13INDIA CONST. art 19, cl. 2
14 THE INDIAN PENAL CODE § 295A,NO 45,acts of parliament,1860 (India)
15 THE INDIAN PENAL CODE § 299,NO 45,acts of parliament,1860 (India)
The wording of Section 299 of the Bharatiya Nyaya Sanhitha is nearly identical, except for the inclusion of electronic means: “Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by words, either spoken or written, or by signs or by visible representations or through electronic means or otherwise, 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 three years, or with fine, or with both. ” The core elements constituting the offence remain the same. The addition of “electronic means” in the BNS indicates an adaptation to cover the rising use of digital and online platforms for communication, acknowledging modern forms of insult or outrage directed at religious beliefs.
The essential ingredients of the offence under both laws include:
1 Deliberate and malicious intent
The person must have a clear and calculated intention to insult or outrage the religious feelings of a specific class of people.
2 Outraging or attempting to outrage religious feelings
The act must result in, or at least attempt to cause, an outrage to the religious sentiments of a particular class.
3 The religious class must be located within India
The group whose religious sentiments are targeted must be a part of the Indian citizen
4 The medium through which the offence is committed
The offence may occur through spoken or written words, signs, visible representations, electronic means, or any other medium of communication. Section 298 of the Indian Penal Code and its corresponding Section 30216 of the Bharatiya Nyaya Sanhitha similarly address the offence of wounding religious sentiments. Both sections are substantively the same. Section 298 of the IPC states: “Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that
16 THE BHARATIYA NYAYA SANHITA, 2023 § 302,NO. 45, acts of parliament 2023(India)
person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. ” This is mirrored in Section 302 of the BNS, with no significant changes in wording or content. The essential ingredients of this offence include: 1. Deliberate intention to wound religious feelings: The offender must have a clear and deliberate intention to hurt the religious feelings of another person. 2. The act must be carried out through specific means: The offence must be committed through the utterance of words, making sounds, gestures, or placing objects in the hearing or sight of the person whose religious feelings are targeted. It Is important to note two significant points regarding this offence. Firstly, it is not necessary for the religious feelings of the person to be actually hurt for the offence to be constituted.
The deliberate intention and attempt to wound religious feelings are sufficient. Secondly, written words are specifically excluded from the text of the offence. The use of the words “utters” and “makes any sound” makes it clear that the offence must be committed through speech or actions within the hearing or sight of the individual concerned, and not through written communication. The next matter that has to be considered is the applicability of these provisions in the context of artistic works. Art can be defined as the intentional creation of works that evoke aesthetic, emotional, or intellectual responses through various forms such as visual arts, music, literature, and performance17. A person can be prosecuted under Section 299 of the BNS if their artistic work insults a religious class.
Since art is often a visible representation or conveyed through words, written or spoken, or through signs, an artist can be held liable under this section if they insult religion with malicious intent. Section 302 may also apply to artistic works that insults a religion, except in cases involving poetry, literature, novels, or stories, as Section 302 excludes written forms
17 Wikipedia, https://en.m.wikipedia.org/wiki/Art (last visited sep 20,2024)
from its scope. Indian courts generally favour artistic freedom when it conflicts with claims of hurting religious sentiments. In many cases, prosecution cases have been quashed, reaffirming that freedom of speech and expression is a fundamental right under Article 19(1)(a) of the Constitution. On the other hand, the right not to be offended based on religious grounds is not recognized as a fundamental right. This reflects the Constitution’s deeper stance, prioritizing the protection of free expression as long as there is no deliberate intention to harm religious sentiments. In the case of Maqbool Fida Husain v. Raj Kumar Pandey18, Maqbool Fida Husain, a renowned painter, in 1990’s faced accusations of hurting religious sentiment through his paintings . The controversy stemmed from his nude depictions of Hindu goddesses.
The Delhi High Court examined the issue and ruled in favor of Husain’s freedom of speech and expression. The court emphasized that nudity alone does not constitute a violation of public decency or morality. Obscenity, the court explained, is determined by whether something goes against public standards, not merely by the depiction of nudity. So as the work cannot be considered obscene, the same act cannot be said as something which hurts religious sentiments. The court advocated for a higher level of tolerance toward differing viewpoints. It stressed that diversity in art, literature, and media should foster discussion rather than be shut down. The court stated, “A liberal tolerance of a different point of view causes no damage. It means only a greater self-restraint. Diversity in expression of views whether in writings, paintings or visual media encourages debate.
A debate should never be shut out. ‘I am right’ does not necessarily imply ‘You are wrong. ’ Our culture breeds tolerance — both in thought and in actions. I have penned down this judgment with this fervent hope that it is a prologue to a broader thinking and greater tolerance for the creative field. A painter at 90 deserves to be in his home painting his canvass19. ” The ruling also clarified the limits of freedom of expression under Article 19(1)(a) of the Constitution. This right is not available if an artwork involving religious figures violates public decency or morality. If an artwork is obscene (not to be confused with mere nudity) and hurts religious sentiments, it will not be protected under this right. Freedom of expression applies
18 Maqbool Fida Husain v. Raj Kumar Pandey(2008) 2 CCR 392
19 Maqbool Fida Husain v. Raj Kumar Pandey ¶ 130 (2008) 2 CCR 392
only as long as it does not contradict public standards of decency and morality. The court also held that “The test for judging a work should be that of an ordinary man of common sense and prudence and not an out of the ordinary or hypersensitive man. ” In the case of S. Rangarajan Etc vs P. Jagjivan20, S. Rangarajan, a film producer, created the Tamil film “Ore Oru Gramathile” and applied for a certificate to exhibit it. The examination committee initially refused the certificate. However, after a review by the 2nd Revising Committee, which recommended a ‘U’ certificate with certain scenes removed, the certificate was granted on December 7, 1987. This decision was challenged in the High Court, which heard claims that the film was irresponsibly made, biased against the reservation policy, and could incite unrest in Tamil Nadu.
The High Court dismissed the writ petitions but revoked the 'U' certificate on appeal21. Rangarajan then appealed to the Supreme Court of India. The Supreme Court held that “Freedom of expression which is legitimate and constitutionally protected, cannot be held to ransom by an intolerant group of people. The fundamental freedom under Article 19(1)(a) can be reasonably restricted only for the purposes mentioned in Article 19(2) and the restriction must be justified on the anvil of necessity and not the quicksand of convenience or expediency. Open criticism of government policies and operations is not a ground for restricting expression. We must practice tolerance to the views of others. Intolerance is as much dangerous to democracy as to the person himself. ” Censorship vs.
Creative Freedom: The Cinematograph Act, 1952 and Religious Insult in Artistic Works The Cinematograph Act, 1952 was passed by the Parliament with the objective of providing for the certification of cinematograph films for exhibition and for regulating exhibitions by means of cinematographs. The Central Government, deriving its powers from the Act, has constituted a board called the Central Board of Film Certification (CBFC). If a cinematograph film is to be screened in India, it is mandatory that the CBFC grants it a certificate to be exhibited. Section 5B(1) provides the board with the power to refuse certification of a film on various
20 Rangarajan v. P. Jagjivan Ram, 1989 SCR (2) 204
21 Sarvesh, Censorship Case
S. Rangarajan Vs. P. Jagjivan Ram,legal services India grounds. It states: “5B(1) A film shall not be certified for public exhibition if, in the opinion of the authority competent to grant the certificate, the film or any part of it is against the interests of [the sovereignty and integrity of India], the security of the State, friendly relations with foreign States, public order, decency or morality, or involves defamation or contempt of court, or is likely to incite the commission of any offence. ” CBFC has also formulated guidelines22 to be followed during the film certification. “Visuals or words contemptuous of racial, religious, or other groups are not presented” is one such principle to be followed. The next question arises as to whether section 5B(1) applies If a film includes a religious insult. The question has to be analysed in two parts.
One is by critically reading the section. The second is by analysing court precedents. CBFC, deriving its power from this section, can refuse to grant a certificate to a film if it is against public order, morality, or decency. It can be interpreted that a major religious insult can create public disorder. If that insult creates such disorder, then the said film cannot be granted a certificate. It can also be interpreted that a religious insult Is against the morality of the state. Indian morals and values include respect for every religion. This can also be a ground to not grant a certificate of exhibition. On a bare reading of this section, it is clear that these grounds can be applied in order to not grant a certificate of exhibition if a film includes religious insults. But courts in India have been champions of freedom of speech and expression.
Almost in all cases, high courts and the Supreme Court overturn the censor board’s decision to ban a film due to religious insults. In the case of Ajay Gautam vs Union of India & Ors23, a petition was filed before the Delhi High Court seeking to ban the movie titled PK as it was alleged that the film offends Hindu religious sentiments and their practices. According to petitioners, the film has a self-styled Godman preaching Hindu religion, in the garb thereof, fooling his followers. Such a character is hurting Hindu sentiments and needs to be curtailed from exhibition. But the court held that the said Godman depicted in this film, even if of Hindu religion, could not be confused with the Hindu religion. Making fun of or showing the said Godman in bad light could not be said to be making fun of the Hindu religion or showing the Hindu religion in bad light.
22 CBFC, https://cbfcindia.gov.in/cbfcAdmin/guidelines.php (last visited on sep 20,2024)
23 Ajay Gautam vs Union Of India & Ors (2015) 217 DLT 297
The Supreme Court, in K. A. Abbas Vs. Union of India24, stated that the standards that we set for the censors should make a substantial allowance in the favour of freedom. That means, when creating rules or criteria for censorship, those rules should strongly favour freedom of expression. This means that the default position should be to allow people to express themselves freely, and censorship should only occur in specific, justified situations. The emphasis is on protecting freedom as much as possible while still having some limits where absolutely necessary.
In conclusion, whenever an appeal has been made before any constitutional court in the country, the courts have given utmost importance to the fundamental right of freedom of speech and expression over the right not to be insulted about one’s religion, provided that, an intentional act to hurt religious sentiments through the medium of film is punishable under the law. Even though it is rare, there are instances when the court upheld the ban placed by the censor board on religious grounds. The CBFC has the power to certify only films that are meant for public exhibition. The term “public exhibition” refers to films presented in cinema halls or on television. It is possible to interpret the term “public exhibition” as any place where a film is exhibited publicly, including OTT platforms. However, at the time of enacting the Act in 1952, there were no OTT platforms in India.
Therefore, it is assumed that Parliament intended “public exhibition” to mean films presented in cinema halls or on television. In the amendment carried out in 2021, there was no clarification or update regarding the term “public exhibition”. The next question that arises is what if a religion, religious belief or its practice got insulted by a person in social media or in contents that are uploaded in OTT (over the top) platforms. Section 69A of information technology act, 200025 has given the decision making authority to the central government to block any content, if it disrupts the public order, that is uploaded in a social media or OTT platform.
When the Central Government is satisfied that it is expedient to do, in the interest of sovereignty and integrity Of India, defence of India, security of the State, friendly relations with foreign States or public order or for Preventing incitement to the commission of any cognizable offence relating to above, by order, direct any agency of the Government or
24 K. A. Abbas vs The Union Of India & Anr (1971) AIR 481
25 Information technology act, 2000, § 69A, No. 21, Acts of Parliament,2000 (India).
intermediary to block for access by the public any information generated, transmitted, received, stored or hosted in any computer resource. So if an insult towards a religion or religious practice is so intense that it can disrupt the public order, then those contents which contains such insults could be blocked by an order from the central government. OTT platforms and social medias are primarily regulated by the Information technology act, 2000. In 2021,central government formulated “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 202126” for the regulation of contents primarily uploaded in social media & OTT platforms. But, in the context of religious insults, the said rules have only minimal role. It is insufficient to stop religious insults happening in social medias.
CONCLUSION
The Indian constitution has given utmost importance to the freedom of speech and expression even though they are subjected to reasonable restrictions. The framers of our constitution intended to restrict the freedom of speech and expression only on legitimate grounds. While recogonizing the freedom of speech and expression as a fundamental right, the right not to be insulted of ones religion was not explicitly recogonized as fundemental right. However, upon the research and the use of the word “freely” in article 25(1) it is clear that the constitutional makers had the intention of making the same a fundamental right. But in conflict, it is clear that the framers of the constitution gave more importance to freedom of speech and expression. The courts in India have also given the importance to fundamental right of freedom of speech and freedom of expression.
However, if one feel that their religious belief is not respected and is being mocked, he can file an FIR under 299 or 302 of BNS. ‘Deliberate intention’ to hurt one religious sentiments is an essential to constitute both offences. However, conviction rate of both offences are also less . It shows how much courts in India are against arbitrary suppression of the right of speech and expression. Same trend is seen when films includes comments about religion. Only in exceptional cases courts have banned a film due to this particular reason. 26 Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, acts of Parliament (India)