By Akhil Mahesh, National University of Advanced Legal Studies, Kochi
“Editor’s Note: The Constitution of India grants freedom of religion and the Indian Penal Code lays down provisions for offences relating to religion. These offences can be classified into three broad categories: defilement of places of worship or objects of veneration, outraging or wounding the religious feelings of persons, disturbing religious assemblies. This paper discusses the various offences defined under these categories.”
‘It is the cardinal principle of good government that every man should be suffered to profess his own religion and that no man should be suffered to insult the religion of another.’
–Kutti Chanami Moothan v. RanaPattar, (1978) 19 Cri LJ 960
This is exactly the principle upon which Chapter XV of the Indian Penal Code is framed. It makes any deliberate acts perpetrated by persons of one religious persuasion for the insult or annoyance of persons of another persuasion punishable.[i] This adheres to the principle of secularism which falls in line with the Preamble of the Constitution of India along with Articles 25 to 30. Article 25 of the Indian Constitution guarantees the right to freedom of religion. All persons are thereby entitled to practice, profess and propagate a religion of their choice. This freedom, though quite vast, is not an unlimited one. It is one that is subject to public order, morality and health.
Simultaneously, the State has to ensure that the religious beliefs of individuals do not become causes of hostility, tensions, controversies or violence of any manner amongst the people. Chapter XV of the Indian Penal Code ostensibly helps the State in maintenance and continuation of religious harmony in the country.
This chapter contains five sections – ss 295, 295a, 296, 297 and 298. The offences under this chapter can be broadly classified under three divisions:
- Defilement of places of worship or objects of veneration (ss 295 and 297)
- Outraging or wounding the religious feelings of persons (ss 295A and 296)
- Disturbing religious assemblies (s 296)
DEFILEMENT OF PLACES OF WORSHIP OR OBJECTS OF VENERATION
Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby,commits any trespass in any place of worship or on any place of sculpture, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies,shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 295 compels people to respect the religious susceptibilities of persons of different religious persuasions or creeds by making destruction, damage or defilement of a place of worship or an object held sacred, with the intent to insult the religion, by a class of persons, punishable.[ii] Section 297 extends the principle in Section 295 to places which are treated as sacred. It punishes a person who, with the intent to insult the religion of another or hurt the religiou feelings of a person, commits trespass in any place of worship or of sepulture, or any place of burial or place set apart for burial rites.[iii]
The essential ingredients of this section are:
- Intention or knowledge.
- Destruction, damage or defilement of:
- A place of worship
- A place of veneration
- An object held sacred
- Trespass into:
- A place of worship
- A place of sepulture
- A place set for performing funeral rites or a depository of remains of the dead
Intention or Knowledge
The essence of the offence under Section 295 is the intention to destroy, damage or defile a place of worship or an object held sacred. Without the requisite mens rea, mere defilement of a place of worship is not an offence. The intention to insult is a question of fact which can be judged depending on the facts and circumstances of the case.
In the case of Jan Mohammed v. Narain Das[iv]the accused removed some rubble and old building materials belonging to a mosque that was in rotten condition and consequently in disuse. The accused was held not liable under these sections as he had no intention of insulting the Mohammedan religion or any of its practitioners. He also had no knowledge that his actions may cause insult or hurt to any class of people.
But, throwing a lit cigarette by a Mohammedan on the ‘Viman’, an object sacred to the Hindus cannot be said to be an unintentional act or one without guilty knowledge. Such an action is an insult to the Hindu religion and its practitioners. Hence the accused was held guilty.[v] Also, committing sexual intercourse within or inside a mosque or a temple is an offence under Section 297.[vi]
Destruction, Damage or Defilement
The words destroy or damage usually mean an act physically or materially affecting the property concerned but it should also be understood in the sense of making property dirty, unclean or foul. The word ‘defilement’ would not only mean physical destruction but also situations wherein the place of worship or the object of worship would be rendered ritually or ceremonially impure. The presence of a person belonging to a lower caste in a Hindu temple open to only those of higher castes was held not to be defilement under the ambit of Section 295.[vii]
Place or Object to be Sacred
An essential ingredient of this section is that the destruction caused should be of a place of worship or an otherwise sacred place. Whether or not a particular place or object is sacred is a question of fact and as a general rule, temples, churches, mosques, synagogues, kyaungs are all considered sacred by virtue of them being places of worship. In Joseph v. State of Kerala[viii] the accused got bona fide possession of a hut on agricultural land by a court order. This hut was used as a place of worship by people. The accused took possession and razed the hutment and took down the pictures of the Hindu Gods. He was charged under Section 295. The High Court held that he had the right to use the land as he pleased and had not intended to hurt the religious sentiments of others and hence acquitted him.
Books like the Bible, the Koran and the Granth Sahib are all held to be sacred even though they are not worshipped per se.
Trespass into Place of Worship or Place of Sepulture
Section 297 makes any trespass into a place of worship or a place of sepulture a criminal offence. This means that the trespass committed need not amount to criminal trespass for it to come within the scope of Section 297.[ix] The word ‘trespass’ has been used in this section to indicate an unjustifiable intrusion upon a property in the possession of another.[x] Sexual intercourse within a place of worship would make the actors liable under this section.[xi]
Indignity to Human Corpse and Disturbing Funeral Rites
Showing any manner of disrespect to a human corpse disturbing the performance of funeral rites is a criminal offence under Section 297. The word ‘disturbance’ means any form of active interference or the hindrance to the performance of the funeral ceremonies. In Basir-ul-Huq v. State of West Bengal[xii] the mother of one DhirendranathBera died. He along with others took the corpse to the cremation grounds. In the meantime, the accused filed a complaint with the police stating that Dhirendranath had throttled his mother to death. When the pyre was ablaze, the accused along with the sub-inspector arrived at the crematorium. The accused persuaded the policeman that if the flames were extinguished that the marks of injury would be found on the body. The fire was hence extinguished but no marks were found. Dhirendranath filed a complaint against the accused under Section 297 and stated that a prior enmity caused a mala fide intention to hurt his religious sentiments which caused him to trespass on the cremation grounds and cause the dead body to be desecrated. The accused was convicted and sentenced to three months rigorous imprisonment.
OUTRAGING OR WOUNDING RELIGIOUS FEELINGS
Section 295A. 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 tothree years, or with fine, or with both.
Section 298. Uttering, words, etc., with deliberate intent to wound the religious feelings of any person
Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places, any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
These sections of the Indian Penal Code relate to acts done deliberately with an intent to outrage, wound or insult the religious feelings or sentiments of any persons. Section 295A deals with actions intended to outrage the religious feelings or insult the religious beliefs or the religion of a particular class of persons that can be termed as ‘deliberate and malicious’; whereas Section 298 makes punishable those ‘deliberate’ acts of verbal or visible representation that intend to wound the religious feelings of another.
The difference in the two sections can be seen from the way they have been worded. Section 295A refers to ‘deliberate and malicious intention’ of ‘outraging’ the religious feelings of a ‘class of citizens of India’. Section 298 makes any utterances done or gestures made with ‘deliberate intention’ of ‘wounding’ religious feelings of a ‘person’ punishable. When contrasted, it is seen that the word ‘outraging’ is much stronger than the word ‘wounding’ and hence the offence under Section 295A is more serious than the offence under Section 298. As a result, it is observed that the punishment under Section 295A is simple or rigorous imprisonment extending up to three years whereas that under Section 298 is either type of imprisonment which may extend to a term of one year or with a fine or both.
These sections allow fair latitude for religious discussions and debates but at the same time prevents people from offering under the pretext of such discussion any intentional insults to what is held sacred by others.
DISTURBING RELIGIOUS ASSEMBLIES
Whoever voluntarily causes disturbance to any assembly lawfully engaged in the performance of religious worship, or religious ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
The essential ingredients of this section are:
- There must be an assembly which is engaged in the performance of religious worship or religious ceremony
- Such assembly and performance of such ceremony should be lawful
- The accused must cause disturbance to such assembly
- The accused must do so voluntarily
This section affords special protection to congregational worship. It does not cover individual worship. A religious procession is regarded as a lawful assembly unless it interferes with the ordinary use of the streets by the public or contravenes any rules or regulations.
Where a mosque situated on the banks of a highway, passing by in a procession with music playing loudly at a time when prayers are going on will be an offence as such music would necessarily disturb the congregation engaged in prayer.[xiii]
Edited by Sinjini Majumdar
[i]Gopinath Puja Panda Samanta v. Ramchandra Deb AIR 1958 Ori 220
[ii]S VeerbhadraChettiar v. EV RamaswamyNaicker AIR 1958 SC 1032
[iii]Mustaffa Rahim v. Motilal (1909) Cr LJ 160
[iv] (1883) All WN 39
[v]Saidullah Khan v. State of Madhya Pradesh, AIR 1955 Bhopal 23
[vi]Soban Ram v. Crown, 67 IC 686
[vii]Atmaran v. King Emperor, AIR 1924 Nag 121
[viii] AIR 1961 Ker 28
[ix]Ram Prasad v. State of Uttar Pradesh, AIR 1952 All 878
[x]Jhari Singh v. Emperor, AIR 1920 Pat 349
[xi]Maqsud Hussain v. Emperor, AIR 1924 All 9
[xii] AIR 1953 SC 293
[xiii]Public Prosecutor v. SunkuSeethalah, (1910) ILR 34 Mad 92