Pursuing Unity Through Lathis: The Pitfalls Of Arming The State To Secure Social Harmony

ABHINAV SEKHRI
 
16 Jun 2022 13 min read  Share

Two sections of the colonial-era Indian Penal Code—153-A (whipping up tensions between groups) and 295-A (to curb offensive speech relating to religious feelings)—were used to preserve public order during the days of Empire. In the 1960s, during a fractious time, they were widened to secure India’s unity. Today, it is clear that this gambit has failed, with these provisions being used to quell discordant speech to secure order rather than unity.

Campus front clash with police./SIDHEEQ, WIKIMEDIA COMMONS

New Delhi: Sections 153-A and 295-A of the Indian Penal Code, 1860 (IPC) have persistently played an integral part in political and legal discourse, forming part of the State response to everything from tweets to riots. 


Over the past eight years, there has been a near six-fold increase in the number of cases registered under section 153-A. 


The more infamous recent examples include: 


– a case registered in May 2022 against Ratan Lal, a Delhi University professor, for comments he made about the Gyanvapi mosque in Varanasi, Uttar Pradesh (UP)


– a first information report (FIR) in 2021 by the Ghaziabad police, also in UP, against journalists Rana Ayyub, Saba Naqvi, Mohammad Zubair and others over tweets about an elderly Muslim man being beaten


– a June 2022 case registered against 30 people, including now-suspended Bharatiya Janata Party (BJP) spokesperson Nupur Sharma, by the Delhi police, in connection with the controversial comments about the Prophet, which led to violent clashes in many parts of the country. 


In this climate of communally-charged violence and the state’s uneven response to it, the relevance of understanding and engaging with these legal provisions cannot be understated. 


Most commonly understood as part of the legal tools to combat hate speech in India, sections 153-A and 295-A of the IPC are directed towards curbing offensive speech per se, even when not accompanied by violent conduct. 


Section 153-A is primarily invoked in contexts where offensive speech is used to whip up tensions between groups on various grounds or disturb public tranquillity, and section 295-A is invoked in cases of offensive speech targeting religious feelings of certain persons. 


Both these clauses (as well as others associated with curbing ‘hate speech’) are derided by commentators for being used more often to combat merely inconvenient speech rather than problematic speech, and are flagged by lawyers as being overbroad in their restriction of legally permissible speech. 


Here, I hope to take the existing conversations on these clauses forward. To be clear, this is not a critique about hate speech laws. Instead, my focus is the evolution of these two specific provisions, as I think that this legal history has some useful lessons to offer.


On The Separatist Sixties (And Early Seventies) 

The text of section 153-A shows that this provision was last amended in 1972 and before that 1969. What copies of the statute often do not reflect, though, is that the entire clause was overhauled in 1961 by the Indian Penal Code (Amendment) Act of 1961 [Page 242 of the PDF File]. 


Originally drafted to be part of the sedition offence, [Page 476 of the PDF], section 153-A as introduced in 1898 curbed conduct promoting enmity between ‘classes’ without specifying grounds as such, and carried an exception safeguarding fair comment made without any malicious intention. 


It was the Penal Code (Amendment) Act of 1961 that inserted the present scheme of separate, defined, kinds of problematic conduct being covered by the provision: Clause (a) concerning speech promoting or likely to promote hatred or enmity on various grounds between groups, and Clause (b) concerning acts prejudicial to maintenance of harmony between groups or likely to disturb public tranquillity [Clause (c) was added in 1972, along with Section 153-B, IPC]. 


The 1961 amendment also hiked the maximum punishment possible for both Sections 153-A and 295-A, to three years. The Criminal and Election Laws Amendment Act of 1969 [Page 213 of the PDF] further expanded the grounds on promoting enmity, giving us the present configuration of the Act, besides putting in place a structure for stricter regulation of the press.


Owing to digitisation of Lok Sabha Debates, today we can go back and read about the circumstances leading to these amendments [see, here and here for 1961, and here for 1969]. The nature of parliamentary discussion and debate around both these pieces of legislation which bookended the 1960s, are strikingly similar.


Both amendments were heralded by meetings of the National Integration Council (initially a creature of the Congress Party that came to be formally recognised later), which recommended these changes to the Penal Code as a response to riots and conflagrations that had occurred in various parts of the country for multifarious reasons. 


The severe threat to national unity posed by these recurring events, the Government reasoned, warranted greater stringency in penal law to send a clear message to persons fanning such fissiparous tendencies. This is succinctly demonstrated in the opening speech of the junior minister for home affairs, B N Datar, while introducing the 1961 Bill: 


“The object of this bill has been clearly mentioned … Those who are aware of the unfortunate happenings during last year or so are aware that in India there are certain forces which are not only antinational (sic), but also which provoke certain feelings of hatred. They go to the extent of creating want of harmony between people … The country has suffered to a large extent on such writings, speeches and actions as well. It is, therefore, necessary that some steps should be taken—positive and constructive steps—for achieving what is known as national integration … [This Bill] is one of the various steps which with the concurrence of the Hon’ble Members, the Government here and the Governments in the states have to undertake for the purpose of achieving this greatest objective that we have at present, namely, national integration.”


The 1961 changes sought to send this message not only by widening section 153-A  by way of clause (b), but also by removing the existing explanation altogether and diluting the intent requirement in the law. In 1969, the threats remained as severe as before, and justified further expanding the grounds of the clause to send this deterrent message (and justify more restriction of the press). 


Thus, public order was not the primary objective served by sections 153-A and 295-A, as it might have been at the time of colonial rule; now, it was being seen as integral to secure the unity of a country being torn apart from within. 


How Restriction On Free Speech Evolved

The criticism from the opposition benches was louder in 1961 than in 1969 arguably, as the earlier changes to section 153-A were more substantial in nature (and also  because the 1961 amendments came six months prior to the elections.) 


The problem lay not in the law itself but in its improper implementation, it was argued, and widening the offence in this fashion made it “much too omnibus a provision” and ensured that a subsequent court would strike it down for being contrary to Article 19(1)(a). Securing ‘harmony’ was not a ground to limit free speech. It would actively prevent expressions of opinion on “live social problems”.


Moreover, national integration and feelings of unity could never be forced down the throat but had to emerge organically and be inculcated through more substantial changes in society. As H N Mukherjee and A B Vajpayee said, “you cannot fight fissiparous tendencies and destructive tendencies merely by flourishing the ‘danda’”. That changes to section 153-A were mooted again in 1969 only buttressed these claims further. 


On both occasions, the Government position was clear—criminal law was one amongst the many tools, and a very important tool, available to it to secure unity and harmony between different groups. 


It made vague promises of better enforcement, and also acknowledged that widening section 153-A entailed curbing much legitimate speech. The home minister in 1961, Lal Bahadur Shastri, agreed that removing the Explanation  from 153-A without providing for a clear intent requirement in the offence brought with it a risk of innocent people being ensnared by law for making fair comment. 


However, these risks were acceptable, and the restrictions on speech argued as being eminently reasonable, considering the larger public interest at stake.


From an enforcement perspective, the changes in 1969 (and then 1974, in respect of section 295-A), were very significant and barely considered. Before 1961, while both sections 153-A and 295-A were non-bailable offences, they were also non-cognizable offences, which meant that the police could not arrest without a warrant. 


Furthermore, prosecutions for these offences could only be launched with the prior sanction of the state government (or an officer empowered by that government). In 1969, section 153-A was made cognizable, giving police the power to arrest without warrant, and powers to grant sanction were given to district magistrates in addition to the state government, thus significantly whittling down the protections to personal liberty that were built in the legal scheme. 


When a new Criminal Procedure Code was being debated in 1973, even section 295-A was decided to be made a cognizable offence


The cumulative result of these interventions was this: more speech than ever before could now be curbed, by the police without any mediating influence, all in the name of pursuing national harmony.  


The Courts, The Constitution & Line-Drawing Exercises

Where the intention of Parliament was to broaden the scope of section 153-A to curb speech in the interests of fostering harmony, and reduce the burden on the prosecution to prove existence of a divisive intent behind the making of speech, courts have almost consistently driven the development of this offence, as well section 295-A of the IPC, in the opposite direction. 


In respect of section 153-A, the attempts of Parliament to dilute the intent requirement have not been accepted by courts, albeit without ever engaging fully with the legislative history of the provision. 


The most recent example of this was seen in Amish Devgan [(2021) 1 SCC 1], where the Supreme Court again struck a note in favour of the view that malicious intention was not only at the heart of section 295-A — where it finds specific mention—but also section 153-A of the IPC. This has restored, in some measure, the safeguards for individual liberty and free speech present within the framing of the offence prior to its amendments.  


The judicial move to enlarge the scope of liberty by curbing the scope of sections 153-A and 295-A can also be seen in how courts have understood these provisions within the constitutional scheme for restricting speech, present under Articles 19(1)(a) and 19(2). 


Courts (and arguably governments as well) have not sought to justify the offences on grounds of fostering unity or integrity of India, but primarily on grounds of these offences being necessary for the maintenance of public order.


Over time, the broad formulation where it was good enough for speech to be curbed to be merely ‘in the interests of’ maintaining public order, has been tightened to require a clear link between offending speech and public disorder. 


It does bear mention that, in Amish Devgan, while the public order logic was reinforced by the Supreme Court, it did invoke discrimination as a positive basis for justifying laws curbing hate speech and acknowledged that context matters a great deal to determine the nature of speech. Whether or not this logic seeps into the regulation of hate speech going forward remains to be seen.


The Chilling-Effect Problem

Looking at the plain text of sections 153-A and 295-A, it is clear that the ingredients for these offences can be made out even in the absence of any considerations of public disorder. All it requires is for a person to make comments that promote feelings of enmity between two groups of persons, or outrage religious feelings of persons, and that would be enough to trigger the offence.


If anything, it was part of the statutory design to curb even that kind of speech which did not always threaten public tranquillity, hence differentiating between clause (a) and (b) in section 153-A(1), IPC. 


Courts necessitating the existence of malicious intent under both clauses, and demonstrating a live link between offensive speech and public disorder, thus narrows down the provisions considerably. 


Nevertheless, these line-drawing exercises can only go so far in ameliorating the chilling effect problem. Since judicial interpretation of a clause does not change its text, expecting that the authorities will properly enforce a law assumes that they will be acquainted with its correct meaning. 


This assumption is often unfounded in practice, as most recently seen with the continued enforcement of section 66-A of the Information Technology Act, 2000, years after it was struck down as invalid by the Supreme Court. 


Even if we do assume that all stakeholders are familiarised with the correct meaning of a law, a different problem persists. 


Fine-tuning the intent requirement, as done in case of sections 153-A and 295-A, can only make a difference while proving a case in court, not while investigating that a case may exist. The broad phrasing of these statutes, coupled with conferring powers of arresting persons without a warrant, confers almost limitless discretion upon police officers to register a case for determining whether allegations are made out. An effort by the Karnataka High Court to require prior sanction even before investigations, which might have regulated use of police powers, was overruled by the Supreme Court as being contrary to law.


That immediate threat to liberty posed by the registration of a case is not mitigated by the knowledge that someday far into the future (data suggests pendency in cases under Section 153-A IPC is very high), the person will be able to defend herself at trial.


While the ‘haves’ may be able to move constitutional courts prior to conviction for challenging the investigation, it is a remedy out of reach for many others who are frequently arrested as innocent victims in the police’ pursuit of national harmony sanctified by section 153-A and 295-A.   


Imperfect Legal Solutions To Deep-Rooted Political Problems

Most accounts of sections 153-A and 295-A look at their colonial birth and then move to consider the judicial engagement with these clauses. Their transformation in the 1960s is insightful and critical, for it lays bare the contradictions that are brought into sharp focus on almost every occasion that these laws are put into use. 


Amidst turbulent times, we find that a conscious choice was made by Parliament to bestow these provisions with more bite so that penal sanctions could effectively serve the pursuit of national integration, even at the cost of curbing legitimate speech. 


Maybe it was a heady idealism, or just sheer desperation, which led Parliament to trust the police to play an active role in engineering national integration by enforcing vague criminal laws. The evidence of the past 60 years suggests that this experiment has not succeeded as a tool for pursuing national integration, which was and remains a political problem. 


The police force, which by its very nature invites accusations of having a bias against minorities due to the peculiar structures of criminal law enforcement, is uniquely disadvantaged to creditably intervene in disputes between different groups where one is often a minority.


This is so even in societies where police forces are not subjects of widespread public distrust due to active political intervention in their functioning, as is the case in India, which indelibly colours the enforcement of all penal laws. 


The judicial engagement with the provisions demonstrates a consistent, albeit limited, effort to bring the law in line with the remit of the Constitution. This has occurred by replacing the idealistic imagining  of police using the criminal law from being seen as efforts at fostering harmony into a pure public order problem. 


Perhaps, this is not a historical mistake but a pragmatic choice—a violent sense of order through the lathi and arrests might be all that one can hope to achieve through police power after all.


(Abhinav Sekhri is a Delhi-based lawyer who writes on criminal law and procedure.)