Religion And Speech - Offensive Publication And The Law In India And Pakistan

Author: LawSphereX

Category: General Law

Published: 2026-08-23T20:55:13.545+00:00

Updated: 2026-08-30T07:08:49.897Z

RELIGION AND SPEECH: OFFENSIVE PUBLICATION AND

THE LAW IN INDIA AND PAKISTAN

Rishieka Ray, OP Jindal Global University

ABSTRACT

Blasphemy laws have always been the centre of attention and has been one of the most critical issues in both India and Pakistan. This paper seeks to examine the colonial setting and the evolution of laws related to offences against religion and its impact on religious communities. The Indian Penal Code was first framed during the British Raj and Chapter XV has witnessed gradual amendments since the independence of both these nations. The focus of this paper has been on the so-called balance between Offensive Publication and Free Speech and sheds light on the notion of secularity in these nations. This research of based on a range of legal, statutory, constitutional, and political issues that have been the centre of debate since time immemorial.

INTRODUCTION

Religion has had a pivotal influence within civilization in the annals of time. To say that the offence of blasphemy has garnered a fair amount of attention is an understatement. As an institution, religion requires the state to take up paternalism by guaranteeing freedom of religion as a fundamental right. International forums embrace this right and uphold the same. Article 18 of the United Nations Declaration of Human Rights (UDHR) recognises the freedom of religion of every individual and also that the same is an institution that forms a part of social structures. Thomas Jefferson once wrote, “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man. ”1 This paper seeks to study laws relating to offences against religion in colonial India and its implications in Independent India and Pakistan.

This paper will reveal that though both these countries claim to be secular and promise to provide protection to all religious communities, but in reality, Pakistan has become exclusively Islamic and India is gradually becoming a Hindu State. This paper will argue that legislations on blasphemy have forced the State to take up paternalism by failing to maintain a balance between protecting religious feelings and guaranteeing freedom of speech and expression. The legislation on offences relating to religion is one of the criminal codes of Pakistan and India which was adopted to prevent and control religiously motivated violence and has been successful in most cases. 2 In order to study the evolution of blasphemy laws, one has to study the pre and post-colonial period of India and contemporary Pakistan.

These laws date back to 1860 when the Indian sub-continent was under colonial rule by the British. The paternalistic colonial government decided that maintaining law and order was the responsibility of the British state as argued by Macaulay3 who depended on Bentham’s utilitarian approach. 4 In order to bring about harmony between religious communities, Chapter XV of “Offences Relating to Religion” of the Indian Penal Code had become an important

1 Michael J. Totten, Radical Islam’s Global Reaction

The Push for Blasphemy Laws, 175 WORLD AFF. 25 (2013). 2 F. A. Nazir, The Evolution of Legislation on Religious Offences: A Study of British India and the Implications for Contemporary Pakistan (Langham Monographs 2019). 3 T. B. Macaulay, The Works of Lord Macaulay, Complete: Critical and Historical Essays, Biographies, Indian Penal Code, Contributions to Knight’s Quarterly Magazine (Longman’s Green & Co. 1875). 4 The first law commission of India was constituted by General T. B Macaulay as its President and Macleod, Anderson and Millet as commissioners to prepare the Indian Penal Code in 1834. They derived assistance from the French Code. piece of legislation in British India. Chapter XV has been amended with varying intensity and has been criticised for much of its existence.

66 BLASPHEMY LAWS IN COLONIAL INDIA With regard to Colonial India, the legislature intended to ensure religious freedom and “to punish, in a country populated by persons of widely different religions, deliberate acts or offences perpetrated by persons of religious persuasion”. 5 However, being a foreign governing body, they failed to acknowledge or take into account conflicting religious traditions. This became a growing concern for the British Government and they included offences against religion (or blasphemy laws) in order to protect Christianity. 6 Chapter XV of the Indian Penal Code was much like the English law – blasphemous writing as a category had been developed by the British. Most of the religious statutes of English law were aimed at preventing disturbances in church, assaulting priests and breaking church windows etc. 7 This was also seen in the Indian statutes.

Blasphemy was a serious offence and once the laws were enacted it became even more difficult to implement them because of multifaith communities across the subcontinent. Religious rituals and practices continued to be a source of accusation. For example, Hindu-Muslim riots reached its peak when it was observed that slaughtering a cow is a sacred act of the Muslims and this was intolerable to Hindus who worship the cow. Places of worship had a potential threat to damage when a particular mosque or temple had violated the supposed “sacredness” of a certain religion. 8 The focus of this paper will be offensive writing and publication. One of the most important issues in the Indian subcontinent was offensive writing which threatened the sanctity of religious communities. This led to a colossal rise in political tension and violence especially between Hindus and Muslims.

The most commonly prosecuted crime under Chapter XV was offensive and controversial literature. 9 An example of this would be any form of literature on eating beef would lead to communal violence on a large scale and the offended party would

5 R.A. Nelson, The Indian Penal Code 1358 (12th ed. LexisNexis 2018).

6 F.A. Nazir, The Evolution of Legislation on Religious Offences

A Study of British India and the Implications for Contemporary Pakistan 35-37 (Langham Monographs 2019) (citing supra note 2). 7 F.A. Nazir, The Evolution of Legislation on Religious Offences: A Study of British India and the Implications for Contemporary Pakistan 33 (Langham Monographs 2019) (citing supra note 2).

8 See supra text accompanying note 7.

9 F.A. Nazir, The Evolution of Legislation on Religious Offences

A Study of British India and the Implications for Contemporary Pakistan 81-83 (Langham Monographs 2019) (citing supra note 2). publish literature that would affect the other party. This established a cycle of hurting communal sentiments and violence that continues even in the current epoch. The growing religious and political conflict led to a series of amendments to the Penal Code. Sections 124- A (sedition) and 153-A (promoting enmity on grounds of religion) under Act IV of 1898, added by the British government, allowed the judiciary to prosecute publishers and publications that were seditious in nature and those that promoted feelings of discontent. The period between

1920 and 1930 bore witness to heightened religious tension between the Hindus and the

Muslims because this was the decade of “offensive publication” written on Prophet Muhammad. Those books and publications that came under the ambit of section 153-A were fortified. 10 Section 295-A of the Penal Code was originally framed as “Whoever, by words, either spoken or written, or by signs, or by visible representation intentionally outrages or otherwise, intentionally outrages or attempts to outrage the feelings, of any class of His Majesty’s subjects, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both”11 was enforced in 1927. The Committee to which this Bill was referred to had disapproved of this provision and redrafted this section by explaining the word ‘intention’ with ‘deliberate and malicious’ and changed ‘religious feelings’ to ‘religious beliefs’.

12 They were under the impression that people might take advantage of the law because they were still allowed to publish religious books. With the adoption of the redrafted version, religious books could be published because not all such literature would fall under section 295-A but merely those which had a ‘deliberate or malicious’ motive to offend. 13 This section had one problem – the meaning of malicious was not explained in the Indian Penal Code and the government had to rely of the dictionary meaning of malicious. 14 Until 1927, the legislation under section 295-A came under section

298 which basically stated that “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

10 See supra text accompanying note 10.

11 Nand Lal, The Indian Penal Code 1328, 1330 (Krishna Lal & Co. 1929).

12 Nazir,supra note 2 at 91-93.

13 See supra text accompanying note 13.

14 The meaning of malice according to Stroud’s Judicial Dictionary, in R. A. Nelson, The Indian Penal Code 1358 (Lexis Nexis 12th ed. 2018); R. A. Nelson, The Pakistan Penal Code 1302 (Law Publishing Co. , Lahore 1975) and Stroud’s Judicial Dictionary (define the term "malice") in R. A. Nelson, The Indian Penal Code 1358 (Lexis Nexis 12th ed. 2018). person, or makes any gesture in the sight of that person, or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. ”15 The issue of relativity arises in both these scenarios. The word ‘outrage’ as used in section 295-A according to the committee report was thought of to be too wide.

‘Therefore, it was decided that section 295-A would only apply in cases where a religion is insulted with the deliberate intention of outraging the religious feelings of its followers. ’16 Religion played a noteworthy role in the independence movement and was the most important tool in the strive for independence and the division of the subcontinent into an exclusively Islamic State and a majoritarian Hindu State. Even though India and Pakistan gained independence in 1947 and the colonial rule ended in the subcontinent, the British left their legacy in the form of law and order. Both countries adopted the Penal Code – it remained as the Indian Penal Code in India and was altered to Pakistan Penal code in Pakistan. 17 Other than the title, the Code remained unaltered except for minor modifications.

18 Religious dynamics were horribly scarred because of the Partition and continue to remain unchanged. The law makers expected Chapter XV to bring harmony and toleration among all religious communities. Protecting religious communities through the penal code was not sufficient, which led to the birth of new fundamental rights and the rights of religious minorities was protected under these rights in both India and Pakistan. 19 Unfortunately, in the post-colonial period, religious interests gradually became prominent and as a result, limited the full freedom of religious expression in both countries. In studying the Constituent Assembly debates around the freedom of religion it is important to note that it was unanimously decided that secularism in India should mean a separation of religion and state but not the absence of spirituality.

“A secular state is neither a godless state nor an anti-religious state” according to Shri H V Kamat. 20 They recognised the need for all communities to have fair representation. The debates brought forth two important issues –

15 WILLIAM MORGAN & A.G. MACPHERSON, THE INDIAN PENAL CODE, ACT CLV OF 1860, at 220-22

(G.C. Hay & Co., Calcutta, 1861).

16 Nelson, supra note 5 at 1373-1374

17 Nazir, supra note 2 at 116.

18 See supra text accompanying note 18

19 India Const. (1950). Pak. Const. (1973).

20Constituent Assembly Debates on 6th December 1948, CONSTITUTIONOFINDIA. NET, https://www. constitutionofindia. net/constitution_assembly_debates/volume/7/1948-12-06 (last visited Jan. 30, 2019). whether the government should be allowed to “prevent” secular activity carried out in the name of religion and whether citizens should have a right to “propagate” their religion. 21 Those who argued the former were fearful of the fact that religion would become politicized and would be used for political propaganda and vote bank politics – the duality of an institutionalized or outward religion and a personal or inward religion was heavily debated upon. One of the members of the debates, Shri Lokanath Misra claims that a “Secular State is a slipper phase”. 22 He believed that adding Religion as a fundamental right would be absurd since Religion can never be divorced from life.

He believed that it religion would take care of itself and adding it to the constitution would create bad blood since fundamental rights are inalienable. The debate centred around the definition of secularism- while some thought it was the negation of all religion and others thought it was an absolute separation of religion and state. In the end, India was meant to be a secular state but the word “secular” had been intentionally omitted from the state. 23 Both Nehru and Ambedkar were against the inclusion of the term “secular” while being strongly committed to the idea of secularism. They were afraid that in order to imbibe organised secularism in the truest sense, the State would be disallowed from making any kind of religious intervention which included the reservation policy, protecting Islamic personal law and the directive principles to protect cows.

24 However, the term secularism was formally added by way of the 42nd Amendment in 1976 by Indira Gandhi’s government. India has always been splattered by a wide range of religions. The fore-runners of this were Islam and Hinduism. Post-colonial India thereafter saw partition and India became a country with majority Hindu residents25. Pakistan has a majority of Muslim residents26. Majority means that there is a minority too. Protection of all communities is important and especially the ones that have been oppressed through time in memorial. The minorities of both India and Pakistan

21 Id

22See supra text accompanying note 20

23 See supra text accompanying note 20

24 Adrija Roychowdhury, Secularism

Why Nehru Dropped and Indira Inserted the S-Word in the Constitution, THE INDIAN EXPRESS (June 4, 2020), https://indianexpress.com/article/india/secularism-constitution-indiabjp-jawaharlal-nehru-indira-gandhi-5001085/. 25 India Population 2019, WORLD POPULATION REVIEW, http://worldpopulationreview.com/countries/indiapopulation/ (last visited Nov. 15, 2024).

26 Pakistan Population 2019, WORLD POPULATION REVIEW,

http://worldpopulationreview. com/countries/india-population/ (last visited Nov. 15, 2024). afford this protection – from their pronouncement after partition27 to world leaders tweeting28 today. This research paper aims to explore the evolution of Blasphemy laws in post-colonial India and Pakistan. Both these independent countries emerge from a common origin with a pre-defined set of legislation related to offences against religion which has largely remained unaltered. However, Pakistan adopts theocracy and is predominantly Islam while India claims to be secular and is dominated by the Hindus. A comparative study of cases will shed light on how the idea of balancing religious sensibility and freedom of speech and expression has tragically failed. OFFENSIVE PUBLICATION IN COLONIAL INDIA The case of Rangeela Rasul29 or Rajpal v.

Emperor (AIR 1927 Lahore 590) takes an interesting turn while studying the evolution of legislations relating to offences against religion. Rangeela Rasul or “The colourful prophet” was a controversial book about the marriages of Prophet Muhammad. Mahesh Rajpal, the publisher was prosecuted and convicted under section 153-A of the IPC for creating feelings of hatred between the Hindus and the Muslims. The Lahore High Court overturned his conviction on appeal on the grounds that the publication did not constitute an offense under this section and an attack on the Prophet could not breed class hostility. 30 Section 153-A was designed to prevent an attack on the community and not to prevent discussion against religious leaders. This judgement led to mass protests by the Muslim community across the subcontinent.

It took a violent turn when approximately 450 Hindus were forced to evacuate Lahore. Rajpal was murdered as a result of the growing hostility. Consequently, section 295-A came into effect. 31 The revision of the law made it clear that the 27 Tayyah Mahmud, Freedom of Religion & (and) Religious Minorities in Pakistan: A Study of Judicial Practice,

40 FORDHAM INT'L L.J. 19 (1995).

28 Indo-Asian News Service, Pakistan Will Treat Minorities as Equals

Imran Khan’s Latest Jibe at India, HINDUSTAN TIMES, Dec. 25, 2018, https://www.hindustantimes.com/world-news/pakistan-will-treatminorities-as-equals-imran-khan-s-latest-jibe-at-india/story-aFpM174f12zFJaUyN9bKbM.html.

29 Rajpal v. Emperor, AIR 1927 Lahore 590

30 Id.

31 With the adoption of the Bharatiya Nyaya Sanhita, 2023 (BNS) on 1st July 2024, Section 295A of the IPC has now been replaced with Section 299 of the BNS. The section now reads – “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. ” demands made by the Muslim community had been accepted and the problem of offensive publication was mainly directed at Muslims. 32 In the postcolonial era, it was important to establish socio-economic and political dichotomies in the now divided subcontinent.

33 It was undeniable that religious hatred had persisted as a significant factor. It had been recognised that there was “a very serious danger of disorder, for an attack on the Prophet was a concrete offence against Islam that stung them to the quick, and they could not bear the thought that Hindus could repeat it with impunity. ” In 1927, Kali Charan Sharma was convicted under Section 153-A for an offense of writing a Hindi book ‘Vichitra Jiwan’ which contained an offensive attack on the life of Prophet Muhammad. It was held that the book contained offensive statements that had affected Hindu-Muslim relations and resulted in the forfeiture of all copies. 34 The focus of attention at the judicial and communal level was the case of Rangila Rasul which led to extensive debate on how to control offensive writing.

This debate finally reached a concluding point in the case of Devi Sharan Sharma v. Emperor (AIR 1927 Lah 594)35 when the judge rejected the defence accepted in the case of Rangila Rasul and stated that ‘an offence against the founder of a religion must be regarded a crime against the religion itself. ’ The controversial ban of the book “Angare” raised several questions about the ‘onesided’ decision against publishers and authors of the book. The British authorities axiomatically followed Muslim clerics to ban the book under section 295-A claiming that the short stories published in the book offended the Muslim community because it posed a challenge to the established norms of the Urdu language. Why were these changed forms of the language considered offensive?

36 The judiciary failed to acknowledge that the offensive style of writing (especially in Angare) was a direct result of the tremendous influence of the West given that English was the official language and had been imposed by the foreign government. Although the Muslim community was morbidly offended by the

32 Nazir, supra note 2 at 114-115

33 See supra text accompanying note 32

34 Kali Charan Sharma v. King Emperor, AIR 1927 All. 654.

35 The case Devi Sharan Sharma v. Emperor (AIR 1927 Lah 594) involved the author of "Sair-i-Dozakh," a publication accused of inciting hatred between religious communities. The Lahore High Court, presided over by Justice F.W. Skemp, convicted Sharma for promoting enmity between Hindus and Muslims. He was sentenced to six months of rigorous imprisonment and fined. This case played a role in the broader legal discourse on religious offenses, contributing to the introduction of Section 295-A of the Indian Penal Code in 1927 to address hate speech issues.

36 Nazir, supra note 2 at 105-106

introduction

of Western literature in an Urdu book, the authors of the said book stood for the protection of free speech and expression. Not only did the book condemn patriarchal practices of the Islamic community but it also showed the colonial rule in a negative light. This was a clear case on how political influence on the law makers resulted in the use of religion to strengthen their own position. Spiritually, Religion has always been in the centre of human attention because it has given hope and solidarity to people. However, as an institution, it has played an eminent role in the independence movement by dividing the subcontinent into two countries dominated by two distinct religions. In the Two Nation Theory it was declared that ‘the Hindus and the Muslims are not religious in the truest sense of the word but are quite different with distinct social orders.

To yoke together two such nations under a single State, one as a numerical minority and the other as a majority would lead to growing discontent and final destruction of any fabric that may be so built up for the government of such a state’. 37 Even though the colonial rule ended in 1947, the legacy of British legislation continues till date as a result of post-colonialization. This paper explores the jurisprudence in determining a balance between protecting religious sentiments and guaranteeing the freedom of speech and expression in the Constitutions of India and Pakistan and analyses the current practices thereafter. Religious freedom and its varied repercussions and interpretative structures within judicial practice in both the countries has major setbacks for minorities.

Civil society and its varied efforts thereby have a huge impact upon the treatment and lessening the deepening gap between the law and the practice. SECULARISM IN INDEPENDENT INDIA Article 25 of the Constitution of India guarantees the freedom of religion upon all individuals. Textually Article 25 can determine the political safeguards given to minorities while also determining fate of secularism. The Hate Crime Watch38 collects data that indicates that cow protection and inter-faith relationships have been responsible for hate crimes that have had a much larger impact on the Muslims. The Sachar Committee Report shows the rapid decline of the socio-economic conditions of the Muslims. 39 Thus, the freedom of religion as the way it 37Quad-i-Azam Mohammad Ali Jinnah, Presidential address by Muhammad Ali Jinnah to the Muslim League, (Mar. 1940), http://www. columbia.

edu/itc/mealac/pritchett/00islamlinks/txt_jinnah_lahore_1940. html 38Hate-Crime Database, Factchecker. in https://lynch. factchecker. in/ (last visited on January 5, 2019) 39Rakesh Basant, Social, economic and educational conditions of Indian Muslims. 42. 10 EPW 828-832. (2007) exists in India has endangered the minorities. There is no gainsaying the fact that politicisation of religion in India takes place in the guise of secularism. Secularism in India was textually recognised in the year 1976 as a result of its addition in the Preamble of the Constitution. The addition took place during the Emergency and thereafter was regarded as a part of the basic structure of the constitution which could not be amended40. In order to study the evolution of laws related to offenses against religion, understanding the Indian Constitution in light of it being secular is important.

41 Secularism needs to be understood in terms of the majority and the minority. Constitutionally, religion is said to be devoid of any practices that are in contravention of human rights. However, the difference is in the fact that the meaning of minority rights changes with the socio-political relations of the country42 and the judiciary’s interpretation doesn’t find any sonority with the rest of the country. The Constituent Assembly debates on Secularism have been successful in showing the meaning of secularism as one where all the religious communities are given autonomy with political safeguards for minorities43 but does this really benefit the minorities? This opens doors to the vulnerabilities of the way in which minorities are viewed in the country as political safeguards could cause damage.

The politicisation of religion takes place in surreptitious ways in which religion affects the political decision of individuals and incites intolerance. A prime example of understanding this phenomenon is through the Hindutva Cases44, where obtaining votes in the name of Hinduism and in condemnation of other religions was legally condoned and it was held not to be a ‘corrupt practice’ as per the Representation of People Act. In 1995, the judiciary had defined Hindutva as a ‘way of life’ which gave the BJP and the Shiv Sena sufficient legal ground to justify their nationalist politics. This widened the scope of politics to being influenced by religion despite the claims of secularity. In 2016, the Supreme Court was afforded an opportunity to change its decision, but it chose not to45. This shows that the meaning of secularism is fading and the

40 The correct Bluebook 20th edition citation for S. R. Bommai v. Union of India would be:

S. R. Bommai v. Union of India, (1994) 2 S.C.R. 644.

41 GARY J. JACOBSOHN, THE WHEEL OF LAW

INDIA'S SECULARISM IN COMPARATIVE CONSTITUTIONAL CONTEXT (Princeton University Press 2009).

42 Rochana Bajpai, Constituent Assembly debates and minority rights. 35.21/22 EPW 1837-1845 (2000)

43 Shefali Jha, Secularism in the Constituent Assembly Debates, 1946-1950, 37.30 EPW 3175-3180.(2002)

44 Manohar Joshi vs Nitin Bhaurao Patil (1996) 1 SCC 169

45 Live Law News Network, Not Relooking 1995 ‘Hindutva Is A Way of Life’ Verdict

SC, LIVELAW, Oct. 25, 2016, https://www. livelaw. in/not-relooking-1995-hindutva-way-life-verdict-sc/. space has opened up to create new meanings that are oppressive in nature. OFFENSIVE PUBLICATION IN INDEPENDENT INDIA India is a country that proudly claims to be secular with no state religion. It has been argued that laws that are created for the protection of religion essentially disclose the secular values on which India has based its Constitution. The most common religious offence has been ‘writing and speaking outrageously and maliciously on a religious matter’46 which could be prosecuted under section 295-A of the Indian Penal Code, 1860, however with the introduction of the Bharatiya Nyaya Sanhita, 2023 (BNS) which came into effect on 1st July 2024, section 295-A of the Indian Penal Code, 1860 has now been replaced with Section 299 of the BNS.

The section now reads – “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. ” What is interesting is that the continuation in post-colonial publications that majorly targeted the sacred personages of the Muslim community continued in Independent India. 47 In the case of Baba Khalil Ahmad v. State (AIR 1960 All 715)48, the Muslim community had protested against the publication of six books.

The defendant was a Sunni Muslim who published those books in response to a pamphlet that, according to him, had misrepresented Islamic history. The defendant wrote six books with the objective of providing unambiguity. The protection for religious sentiments was not unchallenged. It was apparent that the new independent country was unable to protect the fundamental right of free speech and expression guaranteed under Article 19 of Part III of the Constitution. In Sant Das Maheswari v. Babu Ram Jodoun is (AIR 1969 Allahabad 436) 49, the court laid down the following – “The right of freedom of speech and expression guaranteed under Article 19 (1) (a) of the Constitution will

46 Nazir, supra note 2 at 120-121

47 See supra text accompanying note 45

48 The case Baba Khalil Ahmad v. State (AIR 1960 All 715) addressed the application of Section 295A of the Indian Penal Code. In this judgment, the court examined the nature of "malicious intention" under the section. It held that to establish malice as required by this section, it is not necessary to show personal ill will or enmity against specific individuals. If the act in question was done voluntarily and without lawful excuse, malice can be presumed. The court also clarified that provocation or external factors cannot be used as a defense for malicious acts under this provision.

49 Sant Das Maheswaru vs Babu Ram Jodoun AIR 1969 All 436

no doubt enable a citizen to criticise the religion and the religious beliefs of a class of persons. Article 25 of the Constitution confers a right on all persons to freedom of conscience and a right freely to profess, practice, propagate religion subject to certain conditions and a person is entitled to express and propagate his views so long as he does not affect the public order, morality and health or offend any of the provisions of the Constitution or laws of the land. ”50 What this statement does is that it curbs free speech and expression by making it abundantly clear that though religious communities have religious freedom, the expression of such freedom cannot disturb the public peace. India is and has always been in a state of “cultural emergency” according to Salman Rushdie. Freedom of Speech and Expression is either entirely supressed or restricted by the government.

In a landmark case in Ramji Lal Modi v. State of Uttar Pradesh is (AIR 1957 SC 620),51 the constitutionality of Section 295 A was challenged by the editor of a “cow-protection” magazine. It was argued that Article 19 (2) of the Constitution allowed for reasonable restrictions upon the freedom of speech in the interests of public order and morality. Section 295 A widened the ambit by criminalizing all speech and publications that intended to outrage religious feelings. While it was accepted that religious feelings when outraged could cause public disorder, it would be unfair to overlook the exceptions. Section 295 A was criticised on grounds of being so wide that the government had the power to constitutionally regulate speech. Any speech that could have a possibility of public disorder was punishable under the constitution.

The court clarified that this section only looked at intentional insults and it was the “calculated tendency” of intentional insults that could disrupt public order. 52 Hence, this section was deemed to be constitutional. Should the constitutional right to free speech have restrictions on the basis of unproven assumptions? Taking a closer look at the case, the assumption that an intentional insult against a religious community would indefinitely cause public disorder is ludicrous. The British author, Salman Rushdie’s novel “The Satanic Verses” was banned in India in 1988 because many Muslims considered the book to be blasphemous without any semblance of judicial proceedings. The Booker Prize winner received death threats if he made an appearance in any Literature festival in India. The question that the predicament of protecting religious

50 Nazir, supra note 2

51 This landmark judgment upheld the constitutional validity of Section 295A of the Indian Penal Code, concluding that it imposed reasonable restrictions on the right to freedom of speech under Article 19(1)(a) of the Constitution, as permitted by Article 19(2)

52 Suketu Mehta, India’s Speech Impediments, N.Y. TIMES, Feb. 5, 2013,

https://www. nytimes. com/2013/02/06/opinion/indias-limited-freedom-of-speech. html. sentiments leaves us with is that of the futility of having laws and the ground realities to be in discord with the varied interpretations. Freedom of speech and expression is quintessential for maintaining democracy not only because it facilitates the exchange of different views but also allows proper political functioning. Taking a closer look at the evolution of blasphemy laws in India, the problem of protecting religious sentiments has largely favoured the majority. The State has miserably failed in maintaining a balance between protecting religious feelings and protecting free speech and expression in India. Much like India, the post-colonial period in Pakistan has limited full freedom of religious expression either in writing or speaking.

SECULARISM IN INDEPENDENT PAKISTAN The second half of the Partition created Pakistan. The journey of Pakistan’s constitution started with the eighth Amendment of 1985. The system of governance in Pakistan has been a dyarchy. 53 This dyarchy as explained by Mohammad Waseem refers to different power-houses forming consciousness, governing and implementing laws which includes a constant tussle between various political institutions. The identity of the Pakistan within the 1973 constitution is Islamic. Islam is recognised as the state religion and has taken over the idea of establishing a dominant community – in rhetoric and in reality. The vision of Pakistan as expressed by Jinnah was that of equality between Muslims and minorities.

As Ayesha Jalal suggests that “neither speech nor the legacy of which it is a part has succeeded in filling the deep crevices that constitute that contested narratives of Pakistani history. ”54 Religion and culture have always been important factors in determining the identity of the Muslim community but there was no formal agreement on religion as a political ideology. 55 Pakistan’s initial steps to change its constitution posed a threat to the unity of the entire country and brought major changes in terms of constitution and religion. The government did not majorly change Chapter XV of 1860 after gaining independence. Minor alterations included ‘citizens of Pakistan’ in section 295 A of the Pakistan Penal Code and the removal of ‘His Majesty’s subjects’ took place.

56 Both East and West Pakistan implemented the Penal Code 53 Mohammad Waseem, Constitutionalism in Pakistan: The Changing Patterns of Dyarchy, 53 DIOGENES 102, 102-15 (2006). 54Ayesha Jalal, Conjuring Pakistan: History as Official Imaging, 27 INT. J. MIDDLE EAST STUD. 76 (1995). 55SUGATA BOSE & AYESHA JALAL, MODERN SOUTH ASIA 192-94 (Psychology Press 2004); AYESHA JALAL, THE SOLE SPOKESMAN: JINNAH, MUSLIM LEAGUE AND THE DEMAND FOR PAKISTAN (Cambridge University Press 1985).

56 Nazir, supra note 2 at 130-140

without a major change. However, East and West Pakistan were at logger heads with each other over the religious (secular) climate of the State. It became an issue of ‘ethnic pluralism and its lack of recognition posed a serious threat to Pakistan’s centralized system. ’57 Apart from ethic, cultural and linguistic differences between East and West Pakistan, East Pakistan objected to the supremacy of West Pakistan. This led to the demand of reviving the promise that the country would not become theocratic58 and resulted in the eventual birth of a new country - Bangladesh (East Pakistan). Although, Pakistan did not declare a full Sharia in the country, it adopted the principle of secularism which brought major changes to the constitution. The implication of ‘Religious Offences’ from 1947 to 1979 and the period post-1979 is crucial.

Many politicians tried to hold on to Jinnah’s ideal Pakistan wherein it would not turn into a theocratic state59 but failed. Ayub Khan, the president of Pakistan from 1958 to 1969 claimed that Pakistan had a democratic constitution that would be influenced by Islamic principles but all other non-Muslim communities would be free to adopt their religious principles and that the Pakistan would no longer be an Islamic Republic but just the Republic of Pakistan. 60 However, Ayub Khan promoted Islam during the presidential campaign of 1964 and promised an ‘Islamic way of life’ if elected. 61 The constant tussle between wanting to keep the country secular and other Islamic parties like Jamaat-e-Islami that championed theocracy by implementing Sharia in the country became an eye-opener.

Both East and West Wings of Pakistan brought about changes that became important in the legal history of Pakistan. 62 The imbalance between the religious and the secular in Pakistan’s constitution threatened the existence of religious minorities in Pakistan. Although, the nature of religious identity is changing, and the change is shifting towards that of national identity63. This change takes into account that the quest for religion in Pakistan is inclusive and it seeks to bring together the all communities. Hence, Pakistan’s comprehension

57 Nazir, supra note 2 at 120-121

58 See supra text accompanying note 57

59 Nazir, supra note 2 at 142

60 Nazir, supra note 2 at 142-143

61Nazir, supra note 2 at 120-121

62 See supra text accompanying note 61

63 Tasneem Kausar, Integration and Disintegration of Religious and Political Identities in Pakistan, 3 PLR 125 (2007). of religious liberties has been conducive to constitutionalists and fundamentalists64. The various judicial institutions within the state have sought to create a framework of religious liberties through the treatment of minorities and other communities that make the State itself have a distinct sense of right and wrong. The balance of representation is hard to achieve as is the balance between constitution and religion. In 2002, the Minority Groups International65 declared that Ahmadi, Christians and Hindus were the most vulnerable socio-economic groups in the country. Religious intolerance in Pakistan is increasing on a daily basis and it appears to be one of the countries where the restrictions based on religion and free speech are highest.

66 Upon evaluation of the order of political institutions in the country, one can argue that it has been within political compromise and constitutional guarantees. 67 The treatment of minorities has been affected tremendously by the constitutional standing and approach taken by the judiciary. Adjudging by the constitutional framework – Article 2A of the Constitution of Pakistan clearly shows that law and order of the State is assessed by Islam and religious liberties are seen through the eyes of Article 19 where the freedom of speech and expression is highly restricted by Islam. The religious liberties under Articles 20-27 of the Constitution of Pakistan are multitudinous with the intention of putting Islam on the frontline with an equal representation of other religious communities.

The institutional frameworks and implementation of the same have attempted to protect the religious identity of Pakistan more than its national identity. As a result of which the treatment towards minorities has been detrimental. The freedom of speech is a special right that is criticised on grounds for being in contravention of the international codes of conduct. After taking a closer look at the situation of minorities in the country- it is evident that the judiciary has withdrawn from understanding basic human rights. The case of the Ahmadis where the Pakistan Penal Code prohibits the public practice of their religion was held to be in congruence with the freedom of religion68. The Ahmadis are a small sect of Islam in Pakistan – the sect that the judiciary does not recognise as Muslim.

64 Farooq Hassan, Religious Liberty in Pakistan: Law, Reality, and Perception (A Brief Synopsis), 2002 BYU L. REV. 283.

65 Iftikhar H. Malik, Religious minorities in Pakistan (Minority Rights Group International, 2002)

66 Forum on Religion & Public Life, Rising Restrictions on Religion

One-third of the World’s Population Experiences an Increase, PEW FORUM, Aug. 9, 2011, https://www.pewforum.org/2011/08/09/risingrestrictions-on-religion2/.

67 Mahmud, supra note 27

68 Zaheeruddin v. The State (1993) SCMR 1718

The Hindu minorities in Pakistan are persecuted on the basis of the basic tenet that formed the country. Lately it is the predicament of Hindu women who are being forcefully converted to Islam that comes to the forefront. 69 On assessing this incident, it may be noted that the conversion of these women is not only detrimental to the community on religious grounds but has created patriarchal structures which controls a woman’s body and mind in order to assert the majoritarian consciousness. OFFENSIVE PUBLICATION IN INDEPENDENT PAKISTAN The State had ultimate power and control to deal with matters related to religion. According to the Inquiry Report of the Lahore High Court, religious publications and speeches became a threat to “the stability of the state” and such “aggressive sectarianism should, in the opinion of the Central Government, be suppressed with heavy hand.

” Numerous prosecutions under section 153 A and section 295 A of the Pakistan Penal Code were recommended for publishing material against Ahmadis but “no prosecution was ever ordered or launch under these sections. ” Why was section 295 A not used and could its application could have controlled the issue of offensive writing? Judging by the historical application of section 295 A, this section was applied in 1927 through the demand of judicial and religious reforms to protect the Prophet Muhammad from the offensive publications and speeches written by the Arya Samaj to offend Muslims. Religion, thus, required the government to take up paternalism and gave the state complete authority to determine who would benefit from their constitutional framework. The laws within the Pakistan Penal Code in the nature of blasphemy is used as a tool of exploitation for the minorities.

70 According to Pakistan Legal Decisions in the Punjab Religious book Society v. The State, in 1959, the book ‘Mizan ul-Haq’ (Balance of Truth) was considered offensive under the section

295 A. This book was written a century ago by a German Christian missionary, C.G. Pfander

(1803-1865).71 Pfander was criticised for writing apologetic literature for Muslims.72 The book was regarded as offensive because it was written to defend biblical structure which was viewed 69 Jürgen Schaflechner, The “Forced Conversions” of Pakistan’s Hindu Women Hide a Much Bigger Problem, QUARTZ.COM (Sept. 20, 2018), https://qz.com/india/1395029/why-pakistans-hindu-women-covert-to-islam/. 70A.K. Raina, Minorities and Representation in a Plural Society: The Case of the Christians of Pakistan, 37 SOUTH ASIA: J. OF SOUTH ASIAN STUDIES 684, 684-99 (2014).

71 CARL GOTTLIEB PFANDER, MIZAN-UL HAQ OR THE BALANCE OF TRUTH (Church Missionary

House, Salisbury Square 1866).

72 Nazir, supra note 2 at 170.

as corrupt according to Muslims. In Pakistan, the Punjab Religious Book Society (PRBS), Lahore, had published the Urdu translation of the aforementioned book which outraged the religious the religious sentiments of the Muslims of Pakistan which is punishable under section

295 A of the Pakistan Penal Code.73 Based on this complaint, the Government of West Pakitsan

exercised its power conferred by section 99-A of the Code of Criminal Procedure, 1898, to ‘declare forfeit every copy of the book wherever found of the book or its Urdu translation. ’74 It was argued that the book in question had been published earlier and the appellant believed that the book did not contain offensive matter. While the Lahore High Court realised that the book had a tendency to outrage the religious feelings of the Muslims of Pakistan, the Court agreed that the publisher of the book did not violate section 295-A of the Pakistan Penal Code because the requirement of ‘intention’ under this section had not been satisfied. Since the requirement of ‘intention’ had not been satisfied, the order of forfeit was set aside on the counsel’s assurance that offensive pages would be deleted from the next edition and the current edition would not be circulated.

75 In reviewing this case, the Pakistan judiciary considered religious disputes from an objective perspective and not from an overly sensitive point of view. However, despite holding to a “secular system” of neutral judgement, the court did not feel free to leave the controversial texts in their original form. Even though most of the text in question was declared inoffensive, the entire text was ordered to be edited. 76 The freedom of speech and expression is restricted on many levels in Pakistan by a government that whose new modus operandi seems to embody an authoritarian regime. The Pakistani government had confiscated all copies of the book entitled “The truth about Muhammad” written by Robert Spencer, and had banned the book because it contained “objectionable material” about Prophet Muhammad. The book was criticised for being a “threat to the religion of peace”.

The government must be transparent with regard to its policy on censorship which needs to be in congruence with Fundamental Rights guaranteed constitutionally and by International forums such as the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR).

73 he Punjab Religious Book Society v. The State, PLD Lahore 629 (1960).

74 Nazir, supra note 2 at 172

75 Nazir, supra note 2 at 174.

76 Nazir, supra note 2 at 174-175.

CONCLUSION

Religion is connected to every part of life and this cannot be ignored especially in the area of human rights. It cannot be denied that though both these countries claim to be secular and promise to provide protection to all religious communities, Pakistan has become exclusively Islamic and India is gradually becoming a Hindu State. Blasphemy laws were originally placed to control religious violence. Upon the assessment of various case-laws, one can conclude that these laws are grossly misused in Pakistan. While the Indian judiciary is fairly independent, the same cannot be said about Pakistan. Laws on blasphemy have forced the State to take up paternalism by failing to maintain a balance between protecting religious feelings and guaranteeing freedom of speech and expression.

There is no contradicting the fact that the somewhat unclear balance between protecting religious sentiments and free speech and expression has affected judicial approaches to matters regarding offensive publication. The issue of blasphemy is complicated and there seem to be no simple solutions. The most important question is who will protect religious feelings and to what extent? In order to assess this question, it is important to remember that political authorities have claimed to protect the communities from religiously motivated violence through the application of Chapter XV “Offences Relating to Religion” from 1860 till 2024. 77 The historical evolution of the legislation on blasphemy laws shows how they were protected during the British rule even though they were threatened by Hindu-Muslim communalism.

78 Religious offences have always been an area of significant legislation and an extremely sensitive matter. Although these laws have hardly been amended, the outcome of these changes have become extremely controversial in Pakistan. 79 One of the biggest issues with respect to blasphemy is offensive publication as it has already been mentioned. Keeping that in mind, one of the most powerful demands is protecting freedom of speech and expression without changing laws on blasphemy. The issue of striking a balance between guarding religious feelings and protecting freedom of speech and expression has created a divide among religious and political leaders, the judiciary and religious communities.

77 Nazir, supra note 2 at 285-295.

78 See supra text accompanying note 75-77

79 See supra text accompanying note 75-77