In the early 20th century, Punjab had been the hotbed of 'pamphlet wars' between Hindus and Muslims. Things took a drastic turn with the publication of a pamphlet called Rangila Rasul by a publisher, Mahashe Rajpal, in Lahore in 1924. This was a scurrilous publication which attacked the personal life of Prophet Muhammad (PBUH). It was so egregious that even Gandhi took notice of this and condemned the pamphlet in his article in Young India, calling it harmful to the already fraught communal relations between Hindus and Muslims. Rajpal was immediately tried under Section 153-A of the Indian Penal Code which provided for punishment of incitement and causing enmity between various classes of His Majesty's subjects. Convicted at the Magistrate's court, Rajpal was acquitted in 1926 by the Lahore High Court, which held that Section 153-A of the Indian Penal Code was not attracted to this case.
Soon afterwards, another piece of writing called Sair-e-Dozakh was published in Risala Vartman in 1927, which was another scurrilous attack on Prophet Muhammad (PBUH). This caused widespread offense to Muslims all over India, but most significantly in Punjab. Civil disobedience movements were started by Muslims of all hues. The case landed in the courts, and this time around, the courts actually convicted the author and the publisher.
In his judgment, Justice Broadway of the Lahore High Court wrote:
"While therefore I am not prepared to accept the contention of the learned counsel for the Crown that any criticism of a religious leader, whether dead or alive, falls within the ambit of section 153-A IPC (Indian Penal Code), I would hold that the writing of a scurrilous and foul attack on such a religious leader would prima facie fall under the said section."
Thus, the question of whether Section 153-A was enough to deal with situations arising out of such publications was left unanswered. It was with this background that the British government decided to amend the IPC to include what was arguably the subcontinent's first blasphemy law, i.e. Section 295-A. Section 153-A had made the question of enmity between different classes the substantive test. The Home member sought to change that by making scurrilous attacks on religion the substantive matter of the new law without having to prove that such attacks had caused enmity to arise between different classes. It was immediately resisted by a number of Indian legislators, and significantly by Muhammad Ali Jinnah, who stated that it was important to "secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticism of a religion shall be protected."
The matter then went to a select committee, which included MA Jinnah, Srinivasa Iyengar and NC Kelkar, three of the leading legal minds in the country at that time. They sought to limit the scope of the bill and added the following to the law: "with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty's subjects."
It was through this question of intent the select committee sought to protect bona fide criticisms of and historical works on religions and religious figures.
The law now read:
“295-A. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty's subjects, by words, either spoken or written, or by visible representations, 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 two years, or with fine, or with both."
Section 295-A has already become a dead letter because of Pakistan's hapless minorities, whose places of worship are routinely ransacked and desecrated
It is useful to compare it to the situation in present-day Pakistan. The law as it stands today in the Pakistan Penal Code reads:
"295-A: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both."
The only change Pakistan brought about was to increase the punishment to 10 years. However, under General Ziaul Haq, when Pakistan added Sections 295-B and 295-C to the penal code, the question of deliberate and malicious intent was sidestepped.
It is instructive to read 295-B and 295-C as they appear in our statute book:
“295-B. Defiling, etc., of Holy Quran:
Whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.
295-C. Use of derogatory remarks, etc., in respect of the Holy Prophet (PBUH):
Whoever by words, 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."
These two sections mark a clear departure from Section 295-A that the British gave, which put paid the claim that the British gave us the draconian blasphemy laws we have today.
Section 295-A, for better or for worse, was designed to achieve peace between warring communities. Sections 295-B and 295-C are designed to perpetuate majoritarian tyranny in a totalitarian theocratic state, which is what Pakistan is today. It may be stated here that other than being utterly unfair, these laws violate key principles of Islamic jurisprudence, not only because intent is key in Islamic criminal law but also because Islamic jurisprudence, especially the Hanafi jurisprudence which is followed by the majority in this country, does not prescribe the punishment of death, especially for Non-Muslims.
As for Section 295-A, it has already become a dead letter because of Pakistan's hapless minorities, whose places of worship are routinely ransacked and desecrated, whose dead are defiled in the country and whose religious beliefs are routinely mocked, have never been able to use Sections 295 and 295-A against the majority.