Over the top (OTT) platforms, such as Netflix, Amazon Prime, Disney+Hotstar, ALT Balaji, ALT, Voot etc. are already facing the prospect of greater scrutiny since November 9, 2020 when the Cabinet Secretariat notified that films and audio-visual programs made available by online content providers and news and current affairs content on digital media will henceforth fall under the purview of the Information and Broadcasting Ministry with immediate effect.

The genealogy of section 295A IPC can be traced back to 1927, when a book ‘Rangila Rasul’ was published. This book was objected to by a minority community of then undivided India on the ground that it allegedly contained certain objectionable passages about the founder of their faith. The publisher, Mahashe Rajpal, was arrested initially, but was later acquitted. This gave rise to demands for a specific law against causing insult to religious feelings and the British Government duly obliged by enacting Section 295A IPC.

Interestingly, according to A.G. Noorani^[4], the proposed introduction of this provision prompted Mohammad Ali Jinnah, then perceived as a champion of civil liberties, to caution against its indiscriminate use in the Central Legislative Assembly on September 5, 1927. Jinnah stated, “I thoroughly endorse the principle, that while the measure should aim at those undesirable persons who indulge in wanton vilification or attack upon the religion of any particular class or upon the founders and prophets of a religion, we must also secure this very important and 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 criticism of a religion shall be protected.”

In 1957, a Constitution Bench of the Supreme Court upheld the constitutionality of the said section in Ramji Lal Modi vs. State of U.P.^[5] The Court held that Section 295A IPC does not penalise any and every act of insult to or attempts to insult any religion or the religious beliefs of a class of citizens. The Court cautioned that only those acts of insults or attempts to so insult can be penalised under this provision which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The Court further clarified that the provision would only apply to such aggravated forms of insult to religion, that is calculated to disrupt the public order. Further, the intention to offend the Indians citizens of a certain faith must both be deliberate and malicious and must be meant for the Indian citizens of that class^[6]. More recently, in 2017, the Supreme Court provided succour to acclaimed Indian cricketer M.S. Dhoni when he was charged under the said provision for a painting carried on the main page of a business magazine along with his photo with a caption “God of Big Deals”^[7].

In Secy. Ministry of Information and Broadcasting, Govt. of India vs. Cricket Assn. of Bengal^[8], the Court widened the scope of the fundamental right of speech and expression to include the right to educate, inform and entertain and to the right to be educated, informed and entertained. The Court opined that the former is the right of the telecaster and the latter that of the viewers.

In Kartar Singh vs. State of Punjab^[9] (cases dealing with constitutional challenge to the TADA laws), the Supreme Court warned that vague laws not only trap the innocent by not providing fair warning, but also impermissibly delegate basic policy matters to policemen and judges for resolution on an ad hoc and subjective basis, with attendant dangers of arbitrary and discriminatory application. More recently, in Shreya Singhal vs. Union of India^[10], the Apex Court observed that expressions which are vague, in the sense that there is no manageable standard by which a person can be said to have committed an offence, present difficulties as even judicially trained minds may come to diametrically opposite conclusions on the same set of facts.

Therefore, the outrage of an individual citizen with respect to certain online content which is, in his/her subjective judgment, objectionable and punishable under Section 295A IPC will have to be judiciously balanced by the authorities with the rights of not only the accused persons, but also that of viewers entitled to access such content by choice. Presently, under Section 196(1) Cr.P.C., such judicial scrutiny is deferred until the stage when a Court is required to take cognizance of such an offence under Section 196(1) Cr.P.C.^[11]

In actuality, the constitutional principles handed down by the Apex Court have failed to check the indiscriminate invocation of this provision by the law enforcement machinery. The sobering reality is that a large number of persons in various fields, including actors (Salman Khan, Shah Rukh Khan, Akshay Kumar, Aamir Khan, television actor Kiku Sharda), writers (Taslima Nasreen, Salman Rushdie, Wendy Doniger) and artists (M.F. Hussain), have born the brunt of this draconian provision irrespective of the political ideologies professed by the concerned State Governments.

In the short term, it is imperative that the judiciary not brook any misuse of this law, particularly in cases initiated or driven by or at the instance of self-righteous or political busybodies and where the ingredients of the offence are not strictly satisfied. Further, the law should be amended to provide for (i) prior judicial consideration of any complaint to be lodged under this provision, and (ii) limiting prosecution to only aggravated acts of insults or attempts to insult which are deliberate and malicious and are made with the intent of outraging the religious feelings of any class of citizens of India and calculated to disrupt the public order.

Pending such amendments, if the Courts fail to exercise proactive and discerning judicial oversight over such cases, it is quite likely that instances of similar targeted attacks at online content on web based channels will see an upturn. This will likely provide an excuse and impetus to the Government to evolve more restrictive ways and means of regulating online content and perhaps even pre-censoring it.

Footnote

[1] https://www.thehindu.com/news/national/other-states/mp-police-register-fir-against-2-netflix-officials/article33164921.ece

[2] 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 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.

[3] “41. When police may arrest without warrant.

(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or

[4] Forbidden Pages, at https://epaper.dawn.com/DetailImage.php?StoryImage=12_07_2014_009_004

[5] AIR 1957 SC 620

[6] Sujata Bhadra vs. State of West Bengal 2005 SCC Online Cal 516

[7] Mahendra Singh Dhoni vs. Yerraguntla Shyamsundar and another (2017) 7 SCC 760

[8] (1995) 2 SCC 161 (para 75)

[9] (1994) 3 SCC 569

[10] (2015) 5 SCC 1

[11] “196. Prosecution for offences against the State and for criminal conspiracy to commit such offence.

(1) No Court shall take cognizance of-

(a) any offence punishable under Chapter VI or under section 153A, of Indian Penal Code, or Section 295 A or sub section (1) of section 505] of the Indian Penal Code (45 of 1860 ) or

(b) a criminal conspiracy to commit such offence, or

(c) any such abetment, as is described in section 108A of the Indian Penal Code (45 of 1860 ), except with the previous sanction of the Central Government or of the State Government.

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