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SAFEGUARD UNDERMINED

Focus: GS-II Governance

Why in news?

  • The law on granting sanction for prosecution imposes a duty on the government concerned to apply its mind to the facts of each case and render a decision based on its assessment whether, prime facie, a case has been made out
  • The sanction requirement has seen criticism only in corruption cases, as the power could be used to shield corrupt public servants. 

Details:  

  • Superior courts have repeatedly stressed that giving sanction is not a mechanical process, but requires application of mind.
  • The government is required to decide whether there is enough material to conclude that the speech or slogans had a tendency to create public disorder or contained incitement to violence.
  • The prior sanction norm is a vital procedural safeguard against frivolous prosecution.
  • The sanction requirement has seen criticism only in corruption cases, as the power could be used to shield corrupt public servants.
  • However, the sanction contemplated by Section 196 of the CrPC, for “offences against the state” in the Indian Penal Code, as well as “conspiracy” to commit them, is different.
  • Such sanction is also needed for Section 153A (promoting enmity between different groups) and Section 295A (malicious acts intended to outrage religious feelings).
  • The reason is that a police officer’s understanding of the offence should be subject to the government’s scrutiny so that these provisions are not unlawfully used against free speech.

Section 196 of the CrPC:  

Section 196 of the CrPC. is just a procedure wherein it says that in order to prosecute a person for offences committed under Section 153A or Section 295A of the IPC, the State Government or the District Magistrate may, before giving consent under Sub-Section (2) of Section 196 of the CrPC., order a preliminary investigation by a police officer not being below the rank of Inspector.

Section 153A of IPC?


Section 153A of the Indian Penal Code (IPC) deals with the offence of promoting disharmony, enmity or feelings of hatred between different groups on the grounds of religion, race, place of birth, residence, language, etc. and doing acts prejudicial to maintenance of harmony. The offence is a cognizable offence and the punishment for the same may extend to three years, or with fine, or with both. However, the punishment of the offence committed in a place of worship is enhanced up to five years and fine.

Section 295(A) of IPC?

Section 295(A) says that 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 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.

Issues with the section 295A:

  • The broad ambit of section 295A – which is non-bail-able and does not recognize even truth as a defence  have made it a powerful tool in the hands of the intolerant lot. 
  • IPC already has several other provisions to deal with those attempting to breach communal harmony, it may be wise to consider watering down or doing away with Section 295A altogether, particularly when unjustified invocation of the penal provision only sparks fears of aggravating communal tension. 
  • Section 295, which has been the Indian version of anti-blasphemy law since its introduction during the colonial rule, continues even after blasphemy being abolished in the UK. 
  • It has chilling effect on freedom of speech and expression.
  • Though Section 295A envisages malicious intent behind the offending act and the procedural law mandates the need for sanction from government for prosecution, the ineffectiveness of the safeguards can be gauged from the fact that they could not save even a stand-up comedian from arrest immediately after a complaint.
  • Section 295A deters even honest attempts to fight against superstition and prejudices, the broad ambit of the offence had sometimes even put the government and courts in difficult situations. 
  • The wide ambit of Section 295A has not spared even pure artistic and literary expressions and has often startled even the votaries of the provision with unintended consequences. The biggest example of which is imposition of this section on MF Hussein’s Paintings.

Constitutionality and problems in repealing the law:

  • With respect to repeal of Section 295A, however, there is a significant problem: in 1957, in, a five-judge bench of the Supreme Court upheld its constitutionality.
  • This means that, if the Supreme Court were to change its mind, it would need a bench of at least seven judges to overrule Ramji Lal Modi case, and strike down the law.
  • Procedurally, this would require the challengers to 295A to first convince a two-judge bench (before which any petition originally goes) that there are sufficient reasons for doubting the correctness of Ramji Lal Modi case.
  • If convinced, this two-judge bench would need to refer the question to a five-judge bench which, in turn (if convinced), would have to refer it to a seven-judge bench, which would finally hear the case on merits.
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July 2022
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