The Punjab cabinet meets on August 21, 2018. (Photograph: @capt_amarinder/Twitter)

#BQDebates: Punjab’s New Sacrilege Bill – ‘A Society Governed By Criminal Law’

BloombergQuintOpinion

The Punjab government wants to introduce a blasphemy law in the state.

On Aug. 21, the Punjab cabinet led by Chief Minister Amarinder Singh approved a draft bill to introduce Section 295AA in the Indian Penal Code, making the desecration of religious texts in the state punishable with life imprisonment.

Currently, under the Section 295A of the Indian Penal Code, “deliberate and malicious acts, intended to outrage reli­gious feelings” attract a punishment of three years imprisonment and/or a fine.

In 2016, the Shiromani Akali Dal-Bharatiya Janata Party government in the state made a similar move by introducing two bills that sought life imprisonment for desecration of the Guru Granth Sahib – the holy book of the Sikh religion – after a spurt in such incidents in late 2015 led to protests and police firing.

However, the Narendra Modi government at the centre reportedly rejected the proposed amendments on the grounds that changes made for the protection of sentiments of one religion would run afoul of the ‘equality before law’ statute laid down in Article 14 of the Constitution of India.

It advised that the amendment cover all religions.

And that’s what the state’s Congress-led government has now done. But the move has come in for sharp criticism from lawyers and human rights activists.

Three leading lawyers told BloombergQuint that there is no rationale for the Punjab government’s move, and could be challenged in court.

This Will Be Challenged

Mohan Parasaran – Former Solicitor General of India

If the same offence is covered under the Indian Penal Code, it is actually a repetition for Punjab to introduce a new law based on ‘sacrilege of religious texts’. Whether it is sacrilege or religious feelings, it’s the same thing. Both will coincide at some point in time.

I think that in light of the existing position in law, the Punjab government will face challenges in court.
Mohan Parasaran, Former Solicitor General

When the parliamentary enactment has already covered the field, a state that is bringing in another set of law virtually on the same subject matter providing greater penalty will make the law susceptible to challenge.

The penalty of life imprisonment is, of course, excessive. It is defined to be three years under Section 295A of the Indian Penal Code. Sacrilege and religious feelings, in dictionary terms, also mean the same. Then, a penalty of life imprisonment for the same offence is discriminatory.

Blasphemy Shouldn’t Be A Crime

Indira Jaising – Former Additional Solicitor General of India

In my opinion, the existing Section 295A of the Indian Penal Code is itself liable to be declared unconstitutional. It is, in any event, capable of great misuse.

All civilised countries have abolished the offence of blasphemy, including the U.K. Hence, I fail to understand the purpose of this amendment except to play the communal card in politics.

Since I cannot agree with the very concept of blasphemy being a crime, I do not wish to comment on the quantum of punishment proposed.

We are becoming, more and more, a society governed by criminal law – what to eat, when to speak, and what to speak is all being defined by criminal law rather than by a rights framework.
Indira Jaising, Former Additional Solicitor General

Soon, the substance of our fundamental rights will be taken away by criminal laws with draconian punishments. Take the case of rape, instead of priding ourselves on preventing rape, we pride ourselves on having introduced the death penalty for rape.

Something similar is being attempted by Punjab here, grandstanding in the field of criminal legislation rather than building a society based on communal harmony.

No Rationale For Change In Law

Sidharth Luthra – Former Additional Solicitor General of India

What the Punjab government has done is only political expediency. There is no rationale for a change in law or for the addition of any special provision. Sacrilege is not defined in Indian law or jurisprudence that I am aware of. We may look at nations whose polity is based on religion, or who have an official religion.

A government can always seek to justify a new law as a matter of legislative policy, but the question will be – have they even applied the existing provisions over the past few years or decades? What, if any, deficiencies did they find?

Does the government have any statistics to justify this change?
Sidharth Luthra, Former Additional Solicitor General

The move to enhance the punishment to life imprisonment is, in my view, excessive and retrograde.