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Mainstream, VOL LVIII No 47, New Delhi, November 7, 2020

Contours of ‘Freedom of Expression’ | Chittarvu Raghu

Sunday 8 November 2020

by Chittarvu Raghu *

The French Constitution discourages religious involvement in government affairs and policies of the State. The government is barred from involving in religious affairs. 1905 French law separates churches and the State. The form of secularism emphasises respect for freedom of thought and freedom of religion. An individual is at liberty to express his thought on a religion without any reasonable restriction.

This concept of secularism propelled several violent acts such as attacks on satirical weekly ‘Charlie Hebdo’ in the year January 2015, and the recent horrific murder of history teacher ‘Samuel Patty’. There is no ‘blasphemy law’ in France. In the year 2016 the then ‘blasphemy law’ existing only in two regions of Alsace – Moselle which were the erstwhile parts of Germany was also repealed and now entire France does not have any ‘blasphemy law’ which means that any person would be free to express his thought on a particular religion irrespective as to whether it would hurt the sentiments of a particular class or not.

The French President Mr Emmanuel Macron has stated that ‘blasphemy’ is no crime. The law in France as on today is that it is possible to insult a religion, its figures and symbols but it is prohibited to insult members of a religion. The question is as to whether the human right to freedom of expression can be overstretched without any reasonable restrictions. France and other European countries have adopted a different meaning to freedom of expression on a premise that the right to speak freely is a basic moral right which States should uphold and protect.

India extended support to France condemning personal attacks on President Mr Emmanuel Macron. The Ministry of External Affairs had released an official statement deploring the personal attacks in un-acceptable language on President Mr Emmanuel Macron in violation of the basic standards of International discourse and also condemned the brutal terrorist attack that took the life of French teacher in a gruesome manner that has shocked the world.

The external affairs ministry was careful enough to confine its statement only to the personal attacks made on the President and the brutal terrorist attack. The ministry is silent with regard to the cause which had led for such an attack. France has openly stated that ‘blasphemy’ is no crime. But in India we have ‘blasphemy law’ and the same is a crime.

Like the French constitution, the Indian constitution also does not provide for State religion. Freedom of expression is provided under Article 19(1) (a) of the Constitution. It states that all citizens shall have the right to freedom of speech and expression. The preamble of the constitution resolves to secure all its citizens liberty of thought and expression. Article 19(2) enables State to enact a law imposing reasonable restrictions on the exercise of the right conferred by Article 19(1) in the interest of pubic-order, decency and morality etc. Therefore there is no absolute constitutional right in relation to freedom of expression provided under the Indian constitution.

Various provisions of Indian Penal Code such as Sec.124A, Sec.153A, 153B or Sec.292 or Sec.293 or Sec.295A make certain expressions a crime. More particularly Sec.153A of Indian Penal Code contemplates that whoever by words either spoken or written or by signs or by visible representations or otherwise promotes or attempts to promote, on the 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 groups etc., or commits any acts which is prejudicial to the maintenance of harmony between different religious groups or others, shall be punished with imprisonment. This provision takes into its fold all the acts that may disturb the harmony and public tranquillity. It is a reasonable restriction imposed by law on the freedom of expression provided by the constitution.

Section 295A of Indian Penal Code which was enacted in 1927 also contemplates that whoever with the 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.

A reading of Sec.295A shows that if any person insults a religion or attempts to insult a religion is punishable. Whereas in France any act committed against religion which constitutes ‘blasphemy’ is not punishable but is punishable if he commits any act against a person of the said religion.

Sec.153A and 295A of the Indian Penal Code are the form of reasonable restrictions imposed upon the citizen vis-vis the freedom of expression guaranteed by the constitution.

The concept of freedom of expression under the shelter of secularism in France is without any reasonable restrictions. The argument is that freedom of expression is one of the fundamental freedoms in France. The constitution of France confers powers upon the legislature to prescribe limitations in relation to freedom of expression. However no specific ‘blasphemy law’ is made, unlike India. In this context, President Mr Emmanuel Macron has made a statement that ‘blasphemy’ is no crime.

In the United States of America, there is no federal law which forbids religious vilification or religious insult or hate speech. However, some states have ‘blasphemy’ statutes and the same are challenged on the ground that they are un-constitutional and violative of first amendment to the United States Constitution.

Any caricatures pertaining to religion constitute an offence in India if such caricatures tend to disturb the public order and tranquillity. But in France the same is not an offence. Violence as such is condemnable and to that extent none of the peace loving countries would countenance such incidents. But in so far as the freedom of speech is concerned, it has to be controlled by imposing reasonable restrictions. It is more important in countries wherein society is more complex and diversified. Ultimately the objective of any law would be to protect the public order and tranquillity. The constitutional mandate of freedom of expression should be understood in contemporaneous conditions. The society is always dynamic and not static to have rigid principles. The States have to make laws with an objective to maintain public order and tranquillity but not otherwise. Though there is an argument that the ‘blasphemy’ law is the antithesis to freedom of expression, it may not be so.

(Author: Chittarvu Raghu, is Advocate, High Court’s of A.P. & T.S. Email: craghuadvocate[at]gmail.com )

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