In R. vs. Lemon, 1979, the question to be decided by the House of Lords in England was whether a poem published in the newspaper ‘ Gay News ‘ describing Jesus Christ as gay, who had sex with a Roman centurion, Pontius Pilate, John the Baptist and King Herod’s guards, was punishable as a crime under a blasphemy law of England of 1792.
In the 5 Judge bench, two of the Judges were in favour of upholding the conviction of the accused ( the publisher editor and writer ), while two others acquitted them. The two judges who acquitted the accused were of the view that the opinion of the English people in modern times had changed, and what was perceived as blasphemous in 1792 when the law was made is no longer regarded as such today by most of British society, and hence there was no mens rea ( guilty intent ).. The ultimate verdict therefore rested on the view of Lord Scarman, the fifth Judge.
Lord Scarman was known to be a liberal judge, and so people expected him to acquit. However he upheld the conviction, and it is interesting to know his view.
Lord Scarman said that Britsh society had changed in recent decades, and had become pluralistic, having a large number of people of different religions—Hindus, Muslims, Sikhs, Jews, Roman Catholics, etc, apart from the majority of Protestants, who too were divided into several sects.. Since one of the purposes of the blasphemy law was to maintain peace and law and order in society, nothing should be said or expressed which would insult or outrage the religious sentiments of people of any religion, as that may disturb the peace. He observed :
” My Lords, I do not subscribe to the view that the common law offence of blasphemous libel serves no useful purpose in the modern law. On the contrary, I think that there is a case for legislation extending it to protect the religious beliefs and feelings of non-Christians. The offence belongs to a group of criminal offences designed to safeguard the internal tranquillity of the kingdom.
In an increasingly plural society, such as that of modern Britain, it is necessary not only to respect the differing religious beliefs, feelings and practices of all but also to protect them from scurrility, vilification, ridicule and contempt. Professor Kenny in his brilliant article on “The Evolution of the Law of Blasphemy” written in 1922 gives two quotations which are very relevant to British society today. When the Home Secretary (Mr. Shortt) was pressed to remit the sentence on Gott after the dismissal of his appeal, he wrote:
“The common law does not interfere with the free expression of bona fide opinion. But it prohibits, and renders punishable as a misdemeanour, the use of coarse and scurrilous ridicule on subjects which are sacred to most people in this country. Mr. Shortt could not support any proposal for an alteration of the common law which would permit such outrages on the feelings of others as those of which Gott was found to be guilty.”
When nearly a century earlier Lord Macaulay protested in Parliament against the way the blasphemy laws were then administered, he added : “If I were a judge in India, I should have no scruple about punishing a Christian who should pollute a mosque”. When Macaulay became a legislator in India, he saw to it that the law protected the religious feelings of all. In those days India was a plural society. Today the United Kingdom is also”
In my opinion, Lord Scarman’s view is also very relevant in India today, when there is a growing atmosphere of hate and intolerance. The hate speeches of some members of the ruling party ( Sadhvi Niranjan Jyoti, Sadhvi Prachi, Adityanath, Sangeet Som etc ), the killing of Ikhlaque and Prof. Kalburgi, etc are posing a serious threat to the unity amidst diversity and secular Constitutional framework in India. As Lord Scarman said, in a pluralistic society ( like India ) there is all the more need of tolerance and respecting the religious feelings of others to maintain peace..
No doubt when a hate speech is given by one of its members ( some of them Ministers, M.P.s and MLAs or senior party functionaries like Vijayvargia, the BJP General Secretary ) the BJP distances itself from it and says that it is the personal view of the speaker, and not the opinion of the party, no doubt the Central Govt. has filed an affidavit in the Supreme Court in the case of Subramaniam Swamy, who is alleged to have made hate statements, that people can not be allowed to spread hatred towards any community or class in the name of freedom of speech and expression as it would result in public disorder and riots, no doubt the Prime Minister sometimes delivers homilies to the same effect ( usually long after the incident as in Dadri ). But are these not merely for public consumption and to avoid scaring foreign investors ? Can any one believe them when it is common knowledge that the BJP is dominated by the RSS which is rabidly anti minority ?
I fear that communal hatred is going to increase in our country, and incidents as in Dadri and hate speeches and communal ‘riots’ ( which is only a euphemism for attacks on Muslims as in Muafarnagar and Ballabhgarh ), and vandalization of churches as in Delhi, will increase.
I say this because the truth is that unfortunately the communal poison has so deeply penetrated our society that most Hindus are communal, and so are most Muslims. And since almost 80% Indians are Hindus, and since Muslims have often been demonized and branded as terrorists and bomb throwers, Muslim bashing is usually popular among some of our countrymen. No doubt the intelligentsia in India and the media will protest against this, but they are in a small minority. The secular parties which rely on the Muslim vote bank will also protest, but when religious frenzy and passions grip the masses how much will they matter is to be seen.
I fear that dark days are ahead for the country.
By Justice Markandey Katju
e-Judge
Supreme Court of India
e-Judge Supreme Court of India
