BLASPHEMY

The colonial state provided a guarantee of non-discrimination between religious communities existing in India. Section 295 of the Indian Penal Code of 1860 contained a single offence under the heading ‘Blasphemy and Hypocrisy’; the sacred symbols and rites associated with religious traditions were given protection against the acts, words, etc of those seeking to defile or defame a rival community.

During the years 1982—1986 this blasphemy law was supplemented with three further offences. Section 295B penalises a person who ‘defiles, damages or desecrates a copy of the Holy Qur’an’ or uses it or any extract in a ‘derogatory manner or for any unlawful purpose’. This offence is punishable with life imprisonment. Section 295C provides that

whosoever by either spoken or written, or by visible representation or by any 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.

The final provision is section 298C, which defines an act to defile the sacred name of other holy personages including the wives, fam­ily members, caliphs or companions of the Holy Prophet as a crime punishable by up to three years’ imprisonment. Importantly, all of these offences are directed at protecting Islam and Muslim religious sentiment.

Since 1986, more than 1,300 people have been charged for blas­phemy offences. Of those there have been close to 500 convictions. More than 60 people have been killed in acts of violence incited by allegations of blasphemy.

The coded offence of blasphemy, much like the Hudood laws described earlier, provides evidence that the incorporation of Islamic legal norms can overflow formal legal orders and create pockets of informality within the legal system. Tellingly, whereas the original colo­nial blasphemy offence established a mens rea or intent element to estab­lish culpability, these later additions do not include such a requirement. This has led to pronouncements of guilt on the basis of alarmingly low evidential standards. As a strict liability offence, the possibility that the mere repetition of offending words, even in a courtroom, could provoke an application of the blasphemy charge further lowers the burden of proving the offence. Thus, convictions have been granted in cases without the act of alleged blasphemy being spoken or dis­played. Additionally, the absence of an explicit intention requirement has resulted in the conviction of mentally incapacitated people as well as juveniles.^[594]

In 1990 the FSC declared that death, and not life imprisonment, was the only allowable punishment for a section 295C violation.^[595] In combination with the ready availability of clerical orders or fatwas pronouncing alleged offenders as Wajib-ul-Qatl (liable to be killed.) private retributive acts against alleged offenders have been steeply on the rise. Although defenders of the laws claim that the formalisation of the offence has resulted in a reduction of vigilantism, such a claim is contrary to the evidence.^[596]

Importantly, these laws have lent themselves to being used against people or groups embroiled in property or other personal disputes. That mere allegations, particularly when made against members of reli­gious minority groups, can result in a wholesale and genocidal destruc­tion or clearance of areas is related at times to acute competition over resources amongst communities.

Human rights groups and academics have dedicated significant effort to highlighting problems in the framing and operation of these laws. This attention has certainly also been the outcome of the global publicity garnered for such Islamic prohibitions dating from the unrest that followed the publication of Salman Rushdie’s, The Satanic Verses. That it was the Ayatollah Khomeini who issued a fatwa calling for Rushdie’s assassination, the latter a citizen of the UK, is indicative of the ways in which an Islamic normative order is presumed by many of its adherents to trump temporal authority. This was also a precursor event to mark the turn by which Shia religious authority within Pakistan would also come to defend the ambit of the blasphemy laws; this una­nimity has helped to cement the impression of these laws as divinely sanctioned.^[598]

IV