The perils of sacrilege and blasphemy laws

The ruling AAP in Punjab is proving to be as regressive as its predecessors. A government must focus on governance rather than projecting itself as a protector of religious interests. The Punjab Prevention of Offences Against Holy Scripture(s) Bill, 2025, now referred to a select committee, prescribes punishment of 10 years to life imprisonment for sacrilege. In 2016, the SAD-BJP government came up with a Bill that confined itself to sacrilege of Guru Granth Sahib. Later, the Congress extended it to other holy books such as the Quran and the Bible.

The new Bill is another reminder to those who believe in ‘one nation, one law’ that even criminal laws cannot be uniform as states can bring about amendments. Any blasphemy law has a ‘chilling effect’ on free speech.

Lok Sabha MP Shashi Tharoor’s statement that India would become a Hindu Pakistan if the BJP won in 2029 was rightly opposed by one and all. There are worrisome signs that must be given immediate attention. The rise of religiosity is deeply disturbing. The increasing use of religion and religious symbols by politicians to garner votes is problematic. The state and religion ‘invented’ the crime of blasphemy but subsequently the state withdrew. Making the blasphemy law stringent means taking a step backwards. Religious beliefs should not be enforced by the state as societal norms.

I have been opposing the continuance of blasphemy laws in India and have strongly argued against their retention in the Bharatiya Nyaya Sanhita (BNS) because progressive liberal democracies do not have such laws. The 145th Law Commission report (1985) recommended abolition of the blasphemy law. It was finally done away with in 2008.

It was in 1838 that the last person was sent to jail for blasphemy in the US. In 1952, the US Supreme Court, in Joseph Burstyn vs Wilson, declared blasphemy as unconstitutional. The court said it was not the government’s business to suppress real or imagined attacks upon religions. Australia abolished it as a federal crime in 1995. Only 25 per cent of the countries today punish blasphemy.

Such laws lead to vigilantism and mob lynching becomes routine. India abstained at the UN’s Human Rights Council vote on the defamation of religions in 2009. The resolution sponsored by Pakistan was supported by 23 of the council’s 47 member countries. Eleven Western nations voted against it.

The original Indian Penal Code (IPC) did not have blasphemy as an offence. It was inserted in 1927 and punished deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.

The punishment of two years’ imprisonment was enhanced to three years in 1961. Macaulay’s replacement of the common law of blasphemy recognised cultural plurality and anticipated modern measures against cultural denigration. He wanted maximum latitude to religious freedom and at the same time was keen to prevent proselytisers from exploiting religious tolerance to insult what others held sacred.

In ancient Greece, blasphemy comprised speaking ill of the Gods, disturbing peace and dishonouring the government. The arrival of monotheism gave a new impetus to blasphemy since the biblical state of Israel adopted blasphemy as a cornerstone of Jewish identity.

The origin of Western blasphemy lies in the 13th century, when it evolved as a crime separate from heresy. Almost immediately, challenges to the supremacy of God were considered as damaging the secular authority of the state. At its very inception, in the biblical world, the state was the major stakeholder in blasphemy’s evolution as an offence punishable by law. In passing sentence upon John Taylor in 1675, English Lord Chief Justice Sir Matthew Hale argued that attacks upon religion were attacks upon the law itself. In subsequent centuries, the crime of ‘heresy’ in Western countries converted European society into a ‘persecuting society’.

Thus, initially blasphemy was in the ‘passive’ mould and was used by the state and religion. After Enlightenment and individualism, the state retreated. This can be attributed to the recognition of individual rights and acceptance of religious tolerance. Why is the modern Indian state turning the clock back? Why is it portraying itself as a great defender of faith?

Sections 295 and 295-A of the Pakistan Penal Code (PPC) are legacies of the British rule and are similar to provisions of the BNS. From 1980 to 1986, the penal code was amended to include punishment for blasphemy or insulting the feelings of Muslims. Section 295-B made wilful defiling or damaging of a copy of the Quran punishable with imprisonment for life. The most serious provision, Section 295-C, was added in 1986. It laid down that “whoever by words, either or written, or by visible representation, or by an imputation, innuendo or insinuation directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (Peace be upon him) shall be punished with death or imprisonment for life, and shall also be liable to fine.”

In October 1990, the Federal Shariat Court ruled that for the offence described in this section, the punishment prescribed in Islam was death. Anyone charged under Section 295-C may be arrested without a warrant. The offence is non-bailable and non-compoundable, and the trial is before a court presided over by a Muslim.

The extremely wide definition of the crime violates principles of legality, which require that crimes be defined in the narrowest possible terms. Mere allegations under the proposed Punjab law will lead to death threats to the accused, and public protests may make it difficult for judges to even grant bail.

Views are personal

Faizan Mustafa is Vice-Chancellor, Chanakya National Law University, Patna.

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