Art and
Expression vis-a-vis Religious Sentiments
By Vinay Ranjan,
5th Year,
SYNOPSIS
Describing freedom of expression, a famous incident is
quoted in common law. It runs- once a Russian went to
Similarly freedom of expression and art is embodied to everybody. But it should be enjoyed such that no other person’s feeling is hurt by this act of his. It is always remembered that a right is embodied with a corresponding duty.
·
Feb 2006 the movie “The Da Vinci Code” was
released in
Expression of Art
should be like a lily flower related to the ground, takes the water from ground,
buds flower in the open atmosphere and purify the whole world but is still
related to ground.
SWAMI VIVEKANAND
Needless to say the three incidents mentioned above doesn’t have faith on Vivekanand’s saying. The debate on the limitation of presentation of art and expression and the people’s sentiments on the religious matters also become complex due to the fact that both of these claims made by individual, if traced have the origin in the natural rights of human. A person is said to be born with these right as they are subjected to them merely because he is a human, irrespective of his caste, creed, and the status to which he belong. These rights are to help him to enhance his artistic skill on the one hand and freedom to practice and belief in a religion on the other hand and are generally inscribed to help him grow his natural own. Thus often way it is hard to decide which sides to favour in case of a dispute.
RIGHT OF EXPRESSION VIS-À-VIS WITH FREEDOM OF RELIGION AND BELIEF
The most important international legislation on the freedom of religion or belief is A.18 in the United Nation’s International Covenant on Civil and Political Rights (CCPR) from, 1966.CCPR A.18 is built upon A.18 of the Universal Declaration of Human Rights (DHR) from 1948.
A.18 of CCPR guaranteed that everyone shall have the right to freedom of thought, conscience, and religion and this freedom will only be subject to the such limitation as are prescribed in by the law and are necessary to protect public safety, order, health or morals or the fundamental right and freedom of others.
Seen together with the General Comments the phrase “religion” covers all faiths in supernatural powers, traditional and untraditional, while the phrase “ belief” primarily refers to non-religious and quasi-religious philosophies of life such as atheism, agnosticism and humanism.
The Indian Constitution similarly under A.25 guaranteed to every of its citizen freedom of conscience and the right freely to profess, practice and propagate religion. The term religion is not defined in the Indian constitution. However the Supreme Court has considered this in Comm. HRE v L. T. Swamia AIR 1954 SC282 & S. P. Mittal v Union of India AIR 1983 SC1 “ A Religion has its basic in a system of belief or doctrines which are regarded as those who profess that religion as conducive to their spiritual well being.” Thus the constitution endeavors to protect the person’s belief on his religion.
Right to Freedom of opinion and expression on the other hand is guaranteed under A.19 of the International Covenant on the Civil and Political Rights, 1966. It thus ensures every person to express his opinion on the one hand while restricts the state machinery in taking any measures to restrict or prohibits them in doing so.
In India this freedom of expression is guaranteed under A.19 (1) of the Indian Constitution, which guarantees to all its citizen the right to freedom of speech and expression subject only to the condition prescribed under A.19 (2) i.e. state can restrict the scope of this right on the ground of security of state, friendly relation with foreign states, public order, Decency and morality, contempt of court, defamation incitement to offence and integrity and sovereignty of India.
In
Freedom of speech and expression includes the expression of one’s ideas through any communicable medium or visible representation such as gesture, signs, and the like.
In Romesh Thapar v State Of Madras AIR 1950 SC 124,SC states that freedom of expression also connotes publication and thus the freedom of press is included in this category.
In Express Newspaper Ltd. v Union of India AIR 1958 SC 578, SC held that since freedom is for action and action is for an end, the positive kernel of freedom lies in the ability to achieve the end; to be free means to be free for some accomplishment. And this implies command of the means to achieve the end. Unless the equipment necessary for effective action is at hand, unrestraint may be a mockery of freedom.
Of all
the pains in this world the pain which hurt most and which last long is the
“religious pain” that is felt by believers of every cast when what they believe
in it is insulted. That is more so because religion and belief in religious
deities and rituals is more a matter of blind faith then logic. And when the matter comes in Indian context the degree of hurt
reaches to its peak. Here people are ready to die and ready to kill
anybody merely on a rumor that there is a threat on there religion. Be it a
Hindu, a Muslim, a Sikh or a Christian everyone is seemed to be conscious that
there religious beliefs is not challenged by any other cast. The
situation become complex when anybody intentionally or mistakenly does any act
that anyhow affects some sentiments of any religion and then the dirty play
starts. People forgets that they are human
first and there basic duty is to practice brotherhood and uplift humankind then
fighting for their age-old religious sentiments.
The potent source of restriction on freedom of expression is its criminal law, which deals with offences against religion and punishes certain kind of expression which may be loosely called ‘hate-speech’, speech or writing which promote enmity, hatred, ill-will, or disharmony between different religious, racial or linguistic groups or castes or communities are prohibited by S.153A of the Indian Penal Code. A related provision, S.153B prescribes the making or publishing imputation or assertion which imply that” any class of person cannot by reason of their being members of any religious racial, language or regional group or caste or community, bear true faith and allegiance to the constitution of India as by law established to uphold the sovereignty and integrity of India.”
A
special Bench of the Bombay High Court in Gopal (1969)72 Bom LR 871(SB) has held that under this section it is
enough to show that the language of the writing is of a nature calculated to
promoted feeling of enmity and hatred for a person must be presumed to intend
to the natural consequences of his act.
These section which were enacted by the British during colonial
rule were not inspired by any antipathy to free speech as such. The rationale
underlying the provision is the maintenance of public peace and tranquility in
a country like
IPC also deals with offences relating to
religion under a separate chapter, i.e. Chapter XV(S.295-298).
The crux of the chapter being to prohibits any kind of act which hurt some
religious sentiments and promotes any further action resulting against the
public order.
S.298 prohibits the utterance of any word or any
sound or making any gesture by any person with the deliberate and malicious
intention of wounding the religious feeling of any person. S.295A protects the
religious belief of a class as a whole from the deliberate and malicious
intention of anyone to outrage the religious feeling of the class.
The
background and history of S.295A, which punishes insult to religion, are
interesting. It was enacted in 1927 after the judgment of the Lahore High Court
in what is popularly known as the Rangila Rasool case. A tract, Rangila
Rasool was published in which there were offensive reference to the Prophet
Mohammad’s life The High Court took the view that the prosecution which was
launched under section 153A was not legally sustainable because the writing
could not cause enmity or hatred between different religious groups though it
was certainly offensive to the Muslim Community. However it is different that
the man who wrote Rangila Rasool and portrayed the Prophet as an immoral person
was murdered in the court.
The constitutionality of S.295A was
questioned before the Supreme Court in the case of Ramji lal Modi v state of
Uttar Pradesh AIR 1957 SC620. The SC upheld its validity on the
ground that the restriction imposed on freedom of expression by the section was
reasonable and was covered under the head of “public order”. The reasoning of
the court was that the section didi not penalize any
and every act of insult to religion or the religious belief of a class of
citizen but was directed to acts perpetrated with the deliberate and malicious
intention of outraging the religious feeling of a class of citizens.
However
the courts in
‘Law was brought into the world; says Hobbes, for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt but assist one another and join together against a common enemy.’
The object of art is not to deprave or corrupt morals but to elevate the mind —M Nasrullah, 1954 (Akbar Padamsee case). Freedom of expression certainly permits criticism of religious belief. It does not confer a fundamental right to abuse any religion or its founder. If broadly seen it is not the dispute that causes hatred it is hatred that perpetuates the dispute. So why the hatred? The underlying cause is religion. Priests are the self-appointed agents of god. To establish authority they stress on rituals. Rituals sharpen religious division. The solution doesn’t lie in discarding religion but in rediscovering it. While propounding one’s religion one have to see the rights of the other to express themselves and mere comment on the religion should not be treated as any threat to the religion. While on the other side a person while practicing his right of expression must keep in mind the sentiments of other people.
Bibliography