SECTION 295-A IPC CONTINUES TO HAUNT THE ENTERTAINMENT INDUSTRY- SINGER RANJIT BAHWA THE LATEST TARGET FOR HIS SONG ‘MERA KI KASOOR’

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Punjabi singer Ranjit Bahwa’s latest track ‘Mera Ki Kasoor’ has got him into trouble. The lyrics of the song are available here. Reports suggest that the track has been pulled down from his official channel however, the song has gone viral and is available online.

I took the help from my Punjabi friends to understand the lyrics-

The song primarily deals with caste discrimination and the plight of poverty. In the song, the singer says (translated):

What’s my fault if I was born in a ‘low’ household?

People who starve are beaten but milk is offered to stones.

If I tell the truth, it will lead to a war.

A poor’s touch is impure, but a cow’s urine is pure.

The song also targets casteism among Sikhs through the lines: You have built Gurdwaras along caste lines. First deny the teachings of Ravidas

It further goes on to criticize the symbolisms of various religions by saying that people wear symbols like Gatre, Jenau, Cross on their bodies but the principles of these religions are not adopted.

The song is thus a critique of casteism / caste discrimination. The song also targets caste discrimination amongst Sikhs.

The song has apparently hurt the religious sentiments of certain religious groups. As per reports, BJYM District General Secretary Ashok Sareen Hikky lodged a complaint under Section 295-A of the Indian Penal Code, 1860 against Ranjit Bawa in Jalandhar and a copy was sent to Captain Amarinder Singh, DGP Dinkar Gupta, Amit Shah, and Jalandhar Police Commissioner. As per reports, few BJP leaders have also filed cases in other parts of Punjab. Ranjit Bawa has been accused of attacking Hindu beliefs by derogating the belief of cow urine and manners of Hindu Pooja. The complainant has urged the authorities to take strict action against the singer in this matter and requested the removal of the song from YouTube at the earliest. Other names included in the complaint are lyricist Bir Singh, Music Director Gurmoh, Video Director Dhiman Productions and Bull18.

Well this is not the first time, nor will it be the last time that Section 295-A has been used as a harassment tool against the media and entertainment industry. I think we need to pause and just introspect for a second on where is our democracy heading. The touchstone and foundation of our democracy is the fundamental right of free speech. Yes, there are reasonable restrictions under Article 19(2), but that does not imply that every content which touches upon ‘religion’ needs to be tested in the courts. If that be the case, then we are heading towards the need to have religious censor boards for every content which talks/ touches upon any religious subject.

In Ajay Gautam vs Union of India, which dealt with the film ‘PK’, the Delhi High Court while placing reliance on the Supreme Court’s decision in S. Rangarajan V/s. P. Jagjivan Ram held that the Constitution protects the right of the artist to portray social reality in all its forms. Some of that portrayal may take the form of questioning values and mores that are prevalent in society. Films are the legitimate and important medium for the treatment of issues of general concern and it is open to a producer to project his own message even if it is not approved of by others and that the State cannot prevent open discussion and open expression, even if hateful to its policies. The court had further warned that the such petition is an instance of a growing tendency in the country of intolerance and which tendency has to be nipped in the bud and unless done so, is likely to spread like wild fire and which the country can ill-afford. 

Hate Speech provisions under the Indian Penal Code:

Section Classification
Section 153-A- Promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony

“(1) Whoever-

(a) by words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or

(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity, or

(c) organizes any exercise, movement, drill or other similar activity intending that the participants in such activity shall use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be trained to use criminal force or violence, against any religious, racial, language or regional group or caste or community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of insecurity amongst members of such religious, racial, language or regional group or caste or community, shall be punished with imprisonment which may extend to three years, or with fine, or with both.

(2) Offence committed in place of worship, etc.–Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine.”

 

  • Cognizable
  • Non bailable
  • Triable by any magistrate of first class
  • Non compoundable

 

Section 295-A

Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs:

“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.”

 

  • Cognizable
  • Non bailable
  • Triable by any magistrate of first class
  • Non compoundable

 

 

Since Section 153-A deals with promoting enmity between different religions, etc, the section most widely used to target the entertainment industry in terms of religious sentiments is Section 295-A.

The offence committed under Section 295A is cognizable, non-bailable and non-compoundable.

Cognizable- which means that a competent Police officer can arrest the accused without any warrant and then he has to be produced before the Magistrate and only if the Magistrate feels and is satisfied that a case is made out against him that he would be detained otherwise would be released.

Non-bailable offence- means that a person arrested would not have right to be released on bail soon after arrest. In this case it is the discretion of the Court to grant or refuse to grant bail.

Non-compoundable offence means an offence which cannot be settled or pardoned by the affected party or the victim.

History of Section 295-A

A scurrilous pamphlet ‘Rangila Rasool’, was originally published in 1924 by a man named Mahashe Rajpal in which there were scandalous references to Prophet Mohammed’s personal life. The Lahore High Court ruled that although the writing was certainly offensive to the Muslim community, the prosecution was not legally sustainable because the writing could not cause enmity or hatred between different religious communities, which is the gist of the offence under Section 153(A) of the IPC. There was an outcry from the Muslim community and a demand for change in the law. Section 295-A found its home in Chapter XV of the Indian Penal Code, which covers offences relating to religion.

I found the following reference useful in an article authored by Mr. Soli Sorabjee “The report of the Select Committee preceding the enactment of Section 295(A) is significant. It stated that the purpose of the Section was to punish persons who indulge in wanton vilification or attacks upon the religion of any particular group or class or upon the founders and prophets of a religion. It however emphasised that ”an insult to a religion or to the religious beliefs of the followers of a religion might be inflicted in good faith by a writer with the object of facilitating some measure of social reform by administering such a shock to the followers of the religion as would ensure notice being taken of any criticism so made”. Therefore the Committee recommended that the words ”with deliberate and malicious intention” be inserted in the Section.

Jinnah, who was a member of the Committee, wisely stressed the necessity of securing ”the fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected’”

 Few Judicial precedents pertaining to M&E industry:

Case details Facts Ruling
Mahendra Singh Dhoni vs

Yerraguntla Shyamsundar

Citation: AIR2017SC 2392

Supreme Court

 

Complaint was filed against M.S. Dhoni in relation to the cover page of a magazine which carried a painting painted with the photo of Dhoni with a caption “God of Big Deals”.

The seminal issue of consideration before the Supreme Court  was whether the allegations made in the complaint constitute an offence Under Section 295A of the Indian Penal Code and whether the Court, in the obtaining factual matrix, relegate the trial at some other place or grant him liberty to file an application under Section 482 Code of Criminal Procedure for quashing.

 

On a perusal of the aforesaid passages, it is clear as crystal that Section 295A does not stipulate everything to be penalised and any and every act would tantamount to insult or attempt to insult the religion or the religious beliefs of class of citizens. It penalises only those acts of insults to or those varieties of attempts to insult the religion or religious belief of a class of citizens which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class of citizens. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the Section. The Constitution Bench has further clarified that the said provision only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Emphasis has been laid on the calculated tendency of the said aggravated form of insult and also to disrupt the public order to invite the penalty.

[Reliance placed on Ramji Lal Modi v. State of U.P. A.I.R. 1987 SC 620]

Priya Prakash Varrier and Ors vs State of Telangana and Ors.

AIR2018SC 4658

Supreme Court

The F.I.R. was lodged by M.A. Muqeeth Khan, son of Jawad Khan. The allegation in the F.I.R. was that the song the song

“Manikya Malaraya Poovi”  in the film, namely, “Oru Adaar

Love” offends the

sentiments of a particular community. The F.I.R. was lodged for an offence

under Section 295A of the Indian Penal Code.

The pivotal issue before the SC was whether Section 295A of the

Indian Penal Code would get attracted to the obtaining fact situation.

On a keen scrutiny of Section 295A and the view expressed by the Constitution Bench in Ramji Lal Modi (supra), we do not find that the said provision would be attracted in the present case. We are inclined to think so, for the picturization of the said song solely because of the ‘wink’ would not tantamount to an insult or attempt to insult the religion or the religious beliefs of a class of citizens. The said song has been on Youtube since February, 2018. We do not perceive that any calculated tendency is adopted by the Petitioners to insult or to disturb public order to invite the wrath of Section 295A of the Indian Penal Code.

If the ratio of the Constitution Bench is appropriately appreciated, the said provision was saved with certain riders, inasmuch as the larger Bench had observed that the language employed in the Section is not wide enough to cover restrictions, both within and without the limits of constitutionally permissible legislative action affecting the fundamental right guaranteed by Article 19(1)(a) of the Constitution.

The emphasis was laid on the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.

Sanjay Leela Bhansali and Ors vs State of Rajasthan and Ors.

2018(1)RLW513(Raj.), 2018

Rajasthan High Court

FIR was registered on the basis of a complaint in relation to the film ‘Padmavat’ where the complainant alleged that the distortion of historical facts in the film had hurt his religious sentiments. The offence under Section 295A IPC falls within Chapter XV IPC which deals with offences relating to religion. On a pertinent query being made from Shri Rathore, he candidly conceded that ‘Maharani Padmavati’ was a historical icon and was never considered to be a religious figure by either Rajput or any other community. This historical icon is quoted with reverence when the valor and courage of women folk in the country is being referred to. Section 295A IPC deals with deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs. Since admittedly ‘Maharani Padmavati’ was never considered to be a religious figure, manifestly, the offence under Section 295A IPC cannot be invoked by any stretch of imagination so as to apply to the admitted facts as set out in the impugned FIR.

Ex-facie, the issue of hurting the feelings of any person or community; either religious or communal would arise when, the offending depiction is published or brought in public domain. Admittedly, the movie in question had not been completed by the time the FIR came to be lodged. It was in the process of being produced. The Cinematograph Act, 1952 provides a specific mode for certification of movies with a complete and fool-proof mechanism to ensure that the depictions made therein are not found offending feelings of anyone and in reference to the freedom of expression guaranteed by Article 19(1)(a) of the Constitution of India.

Having objectively considered the movie in its entirety, this Court is of the firm opinion that there is not even a single scene therein which can be considered as amounting to one which can hurt the feelings of any one the count of race, caste, creed or religion. No character in the movie has been picturised in any manner which can cause disruption of public order or create enmity or hatred between any two communities. On the contrary, the grace and poise with which, the character of ‘Maharani Padmavati’ has been picturised and the respect which has been duly offered to the historical icon is nothing short of a glorious tribute and adulation.

Star India Private Limited vs State of Punjab & Ors

2010(3)RC R(Criminal)207

Punjab and Haryana High Court

Complaint was filed under Section 295-A of the IPC in relation to a television serial on Star Plus ‘Bidai’ In which a character  allegedly

used derogatory words to describe Lord Valmiki.

The police registered an FIR and

commenced investigation.

The High Court while refusing to interfere with the investigation of the investigating officer held:

The power to quash an FIR though wide in its amplitude cannot be invoked to stifle a bonafide prosecution. While exercising inherent power, a High Court cannot weigh probabilities and possibilities, as an FIR is but a skeletal narrative of preliminary facts, upon which investigation commences. To quash a nascent investigation, particularly when the petitioner tendered an apology for an earlier similar remarks would, in my considered opinion, be a travesty of justice…

This being a settled position in law, it would not be appropriate for this court, to express any opinion as to the nature of the offence or the nature of the investigation leaving it open to the police to examine the script and form a considered opinion, whether any offence is made out.

Another factor that dissuades me from holding in favour of the petitioner is its earlier conduct. For similar remarks in another serial, the petitioner admittedly tendered an unqualified apology. The petitioner was, therefore, aware that this remark, if telecast again, would hurt the complainant’s sentiments. The petitioner was, therefore, required to exercise a degree of care and caution while telecasting those remarks.

Before parting with the judgement, it would be appropriate to make a reference to the petitioner’s argument based upon Article 19(1)(a) of the Constitution. The freedom to speak one’s mind is inherent in any democracy and is, therefore, protected by the Constitution. The freedom is not absolute and is subject to provisions like of the Indian Penal Code. Freedom of speech must therefore, take into consideration the sentiments of communities, likely to be affected. Television channels, like the print media should be careful in the choice of words and expressions and should show a degree of sensitivity to religious sentiments of their audience. The electronic media with its immense power and reach must pause, reflect and exercise a greater degree of restraint and responsibility, particularly when it seeks to disseminate religious information likely to affect the sensibility of its audience.

 

These are only few of the judicial precedents on Section 295-A. There have been several other cases which have been filed against media and entertainment content hurting religious sentiments. Some other examples include:

  • Loveyatri- issue pertaining to the title- The Supreme Court on November 29 said that no coercive action, in the nature of a FIR or criminal prosecution, will be taken against actor Salman Khan for his production ‘Loveyatri’. This direction was given in response to several criminal complaints filed in Bihar and Gujarat against the movie alleging that its name has hurt the religious sentiment of Hindus.
  • Zero- Kirpan Scene- Bombay HC dismissed the petition filed by Delhi Sikh Gurudwara General Secretary Manjinder Singh Sirsa against actor Shah Rukh Khan for allegedly hurting the sentiments of the Sikh community due to a scene in his movie ‘Zero’ where he was seen carrying ‘Gatra Kirpan’. The petitioner had sought to initiate action against Shah Rukh Khan for violating S. 295A of the Indian Penal Code pertaining to deliberate and malicious acts intended to outrage religious feelings or beliefs as an offence. The petition was dismissed as the petitioner admitted in the Court that his grievances were addressed by the makers of the film ‘Zero’ as they had made amendments to the scene in question.
  • FIR lodged against Raveena, Farah And Bharti for ‘Trivialising Hallelujah’- Punjab police booked Bollywood actress Raveena Tandon, director Farah Khan and comedian Bharti Singh under Section 295-A of the IPC for allegedly hurting religious sentiments of Christians during a show webcast on the internet. The trio is believed to have said something questionable during Farah’s YouTube comedy show, The Backbenchers, that did not go down well with certain members of the Christian community.
  • Sacred Games– Two criminal complaints were filed against Anurag Kashyap (by BJP legislator, Manjinder Singh Sirsa and BJP spokesperson Tajinder Pal Singh Bagga) accusing him of disrespecting the religious sentiments of the Sikh community through a scene in his show Sacred Games. In the impugned scene, a Sikh character (played by Saif Ali Khan) threw his ‘Kada’, which is one of the five Kakaars revered by the Sikhs. The complainants asked for FIRs to be filed against Kashyap under various sections of the IPC (such as S. 295-A and S. 153-A) and IT Act.
  • Vaani Kapoor-A complaint was filed against actress Vani Kapoor by a Mumbai resident, Rama Sawant, for posting pictures on social media wearing a top with a plunging neckline that has the word ‘Ram’ written on it. The complaint, filed with Mumbai’s NM Joshi Marg Police Station, alleged that Vaani has hurt religious sentiments and should be booked under S. 295A of the Indian Penal Code.
  • FIR lodged against Diljit Dosanjh for hurting religious sentiments of Sikhs by his song ‘Pant Mein Gun’– A Sikh petitioner Jasjeet Singh has registered an FIR against actor-singer Diljit Dosanjh alleging that his religious sentiments were hurt by the lyrics of the song ‘Pant Mein Gun’ of the film ‘Welcome to New York’ as it goes against the principles of Sikhism.
  • Arrest warrant issued against Rakhi Sawant for allegedly making objectionable remarks against sage Valmiki. The actress eventually was granted an anticipatory bail.
  • ‘Behen Hogi Teri’ makers, arrested for ‘hurting religious sentiments’, finally released on bail: The director and producer of the film ‘Behen Hogi Teri’, who were arrested for ‘hurting religious sentiments’ for showingRajkummar Rao dressed as Shiva sitting on a bike, were finally released on bail.
  • Mumbai court summons Ram Gopal Varma for poking fun at Lord Ganesha: The Metropolitan Magistrate’s Court in Andheri has issued summons to filmmaker Ram Gopal Varma (RGV) to appear before the court on August 8, 2017 for poking fun at Lord Ganesha on his Twitter account.
  • A Varanasi court ordered an FIR to be filed against Kamal Haasan for his write-up on ‘Hindu terror’, a day after a Varanasi-based lawyer Kamlesh Tripathi filed a complaint accusing the actor of ‘hurting religious’ sentiments. Further, members of Shiv Sena also filed a complaint against Kamal Hassan for the said remark.
  • Kiku Sharda arrested for mimicking Dera chief Gurmeet Ram Rahim

The problem with insult laws/ hate speech laws:

The inherent problem with these hate speech/ insult laws are that they are extremely subjective. Take this song for instance, while one section has found it objectionable, there are many others who have lauded Ranjit Bahwa for highlighting the plight of the Dalits. What may hurt the sentiments of one may seem reasonable to another, thereby making these provisions subject to gross misuse and abuse. There is a dire need to revamp these provisions and have some stringent safeguards in place to ensure that these provisions are not abused and misused.

The Supreme Court had the opportunity in 1957 in the case of Ramji Lal Modi vs The State Of U.P to hold Section 295-A as unconstitutional and being violative of Article 19(1)(a). Unfortunately the SC back then held, that  S.  295A of IPCS was well within the  protection of  Article 19(2) and its validity was beyond question. This decision has been followed by all courts thereafter. It’s time to rethink if the the mischief (public order/ violence) that section 295-A was supposed to prevent is in fact further aggravated by the provision itself? 

Image source: here

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