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Why Section 195 of Draft Bhartiya Nyaya Sanhita needs relook: A ‘religiously neutral provision’ that may end up criminalising criticism of Muslim separatism

Those who forget history are doomed to repeat it. It would be a great injustice to Bharat if the very doctrine that stabbed her and made her bleed would be beyond analysis and reproach - especially in a Bill that otherwise makes much-needed changes, protecting real victims. One can only hope that the parliamentary debates on the IPC draft address these concerns and necessary caveats and exceptions are added.

On the 11th of August, Home Minister Amit Shah introduced 3 new bills to revamp the criminal justice system of India. These bills Bharatiya Nyaya Sanhita, Bharatiya Nagarik Suraksha Sanhita and Bharatiya Sakshya Bill will replace the Indian Penal Code, Criminal Procedure Code and the Indian Evidence Act respectively.

The Bharatiya Nyaya Sanhita draft bill is meant to replace the current Indian Penal Code. Speaking on the three bills in the Lower House, Amit Shah said, “Under this law, we are repealing laws like Sedition.” “From 1860 to 2023, the country’s criminal justice system functioned as per the laws made by the British. With these three laws there will be a major change in the criminal justice system in the country,” he said. 

Essentially, the bill was presented as a progressive bill that strikes down colonial-era laws and gives far for freedom to a citizen, at least as far as his freedom of expression does, than the IPC does, however, as one says, the devil is always in the details. The Bharatiya Nyaya Sanhita draft bill with 356 sections and several sub-sections and clauses is a vast bill that required a thorough reading to fully understand whether it is as progressive as was initially supposed. Like in any bill, there are sections that welcome additions.

For example, the bill takes a leap towards dealing with the menace of Love Jihad by explicitly adding that establishing sexual relations under false pretences would be considered a crime. This means that the Islamists who pretend to be Hindus to trap Hindu girls, later forcing them to convert, would be a crime under the IPC – a historic step for Hindus. Further, there are laws about unlawful assembly that would make the involvement of elements like Umar Khalid and Sharjeel Imam in the anti-CAA riots a criminal activity upfront.

Another example of the positive changes brought about by this draft is sub-clause 2 of the very law I intend to criticise in this article. Section 195 (2) says, “Whoever commits an offence specified in sub-section (1) in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies, shall be punished with imprisonment which may extend to five years and shall also be liable to fine“. This would mean that the Allahu Akbar chants and religious provocations during Hindu processions, even if passing through so-called Muslim areas, would be considered criminal activity. In fact, this provision would also explicitly consider it criminal when Maulanas spew seditious statements in Mosques during Friday prayers, inciting several attacks against Hindus by Islamist mobs.

There are, indeed, several provisions that aim to fix the areas that colonial-era laws had not considered or the previous governments had no will to address. It is because of these positive provisions that I believe the intent of this draft is to ensure equality and security for all citizens, including the Hindus of this country. It is only because I believe the intent of the dispensation to take this bill in the right direction, do I now write this scathing indictment of the provision I believe is draconian and misplaced.

Chapter XI of the draft bill deals with offences against public tranquillity. Clause 195 under this chapter essentially criminalises academic criticism and analysis of Muslim separatism explicitly, even though it does not mention Islam as a specific religion.

For the purpose of this article, we will analyse each sub-section and clause of section 195.

Section 195, sub-section 1, clause (a)

195. (1) (a) says:

Whoever by words, either spoken or written or by signs or by visible representations or through electronic communication or otherwise,— (a) makes or publishes any imputation that any class of persons 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 or uphold the sovereignty and integrity of India; shall be punished with imprisonment which may extend to three years, or with fine, or with both.

This law is rather simple. If anyone says, writes or illustrates that certain persons or a group of people hold no allegiance to the Indian Constitution or that they have a propensity to not uphold the sovereignty of India, they are liable to be thrown in jail for 3 years.

The obvious defence of this section is that it does not mention any community or religious group specifically and therefore, it is a fair clause that every denomination can use to their safeguard the dignity of their community. However, laws are to be understood in societal contexts and realities.

The power imbalance

Let us take the example of gender-neutral laws. There have often been demands that rape laws must be made gender-neutral and one can, if one tries, see the merit in these arguments to the extent that men need to be safeguarded as well. However, it is imperative that we understand the power dynamics in society that make it important for laws that are focused specifically to protect women.

While men do suffer the consequences of heinous crime, women are disproportionately affected by sexual crimes and that is a fact that can’t possibly be denied. When a section of the population is disproportionately affected by a specific nature of crime, laws must be made to specifically provide safeguards to that section. This is essentially the argument made in favour of laws that are specifically made to protect women against sexual exploitation.

Now, while we hold that line of argument, let us consider two statements:

  1. Brahmins can’t be true to Baba Saheb Ambedkar’s constitution because it aims to annihilate caste. Brahminism is antithetical to equality, which is the cornerstone of the constitution Dr Ambedkar wrote.
  2. Muslims can’t submit to a secular constitution because Islam aims to create Dar-al-Islam. The concept of Ummah is antithetical to modern notions of nation-state, loyalty to whom our constitutions demand.

It is the societal reality of today that the first statement sounds academic in nature, even ideal activism while the second sounds like ‘hate speech’ not just to average folks, but even the highest judiciary of the land – this is where my fear lies. If one analyses decades of judicial activism, one would find several statements that talk about a casteless society, brahmanism, caste atrocities etc. However, it is the same court that reads out the Quran even to pass a judgement where the basic rights of Muslim women are upheld – like in the Triple Talaq case. In fact, we had a sitting judge smile at the thought of a Brahmin Genocide while listening to a case about hate speech against Muslims. Such is the power imbalance against Hindus at the highest echelons of the Indian State. There is a reason why Hindus for a while got no law protecting their life and limb specifically against Jihadi violence despite several genocides leading up to the partition – the power imbalance is almost insurmountable.

Let us take another example. While the framers of the constitution explicitly focussed on caste annihilation in the constitution and enshrined specific safeguards against the marginalised sections of the society with the specific aim of reforming the Hindu society, it was the Muslims who managed to preserve their personal laws on the basis of religion. From Mohammad Ismail to Mahboob Ali Beg, the argument made when UCC was being discussed in 1946 was that personal laws are a part of the religious beliefs of Muslims and therefore must not be touched. Ultimately, even though Dr Ambedkar was in favour of reform, the Muslim personal laws prevailed untouched.

Historically, it was after Rangeela Rasool was printed and Muslims went on a rampage, was Article 295A passed by the British. It was not passed when the Muslims had published two books insulting Hindus, in whose response Rangeela Rasool was printed. Even after 295A was passed by the British to assuage the ever-hurt sentiments of Muslims, despite the fact that the insult first came from the Muslims against Hindus, the Muslims still went ahead and murdered Mahashay Rajpal.

The power structure is certainly not equal and therefore, even if a law treats Hindus and Muslims as the “same”, the two religious denominations are not the same by any measure. The argument is that Hindus can use this law too in order to legally punish those who hurt the sentiments of Hindus, but is the system ripe for the usage of the law equally? Has it ever been? Was it not evident from the comments against Nupur Sharma by the Supreme Court itself?

The two religious denominations are not the same. They certainly don’t behave the same in a societal context and therefore, a law that aims to protect religious sentiments equally of both communities will only benefit the most intolerant because hatred against the tolerant community has already been normalised to such an extent that it is not even considered hate speech anymore.

Since no religion is mentioned, it would apply to all religions equally – the fallacies of that argument

The assumption that because a specific religion is not mentioned, it would apply to all religions equally, stems from the misplaced notion that all religions are the same and all religious groups behave in the same manner – more dangerously, it assumes that all criticism is equally applicable to all religions.

The ‘all religions are equal’ claim stems from notions of religious pluralism. Religious Pluralism essentially says that firstly, all religions must acknowledge that certain truths exist in other religions as well, thereby declaring that it is not only their own religion that is the ‘only truth’. Further, it says that all religions must acknowledge that every religion teaches basic universal truths that have been taught since before the advent of religion itself. 

When one delves into the principles of religious pluralism as a construct that can enable religions to co-exist without sectarian violence, it becomes important to ensure that all religions are brought down to the same surface level and hence, the claim that all religions are the same takes a beastly proportion where cultural context is often lost. At the very outset, it suffices to say that Islam lays out a doctrine for the humiliation of Kafirs.

Stemming from that reality is the fact that all religious sections do not behave in the same manner in a society, especially one like Bharat, with an ancient Hindu consciousness. When one talks about Islam, it is important to acknowledge certain realities:

  1. Islamic doctrine itself ordains the humiliation of Kafirs and the conversion of Dar-ul-Harb into Dar-Ul-Islam. This is not an imputation on every Muslim, however, reality of the doctrine cannot be glossed over to chase mythical dreams of harmony and brotherhood, especially in a nation that has been torn apart once based on the tenets of this very doctrine.
  2. Islamists have little to no regard for the law of the land. There is a law that, of course, criminalises murder, however, that does not stop the Islamist from picking up his knife and beheading Kanhaiya Lal. There exists a law which deems Kamlesh Tiwari as an offender who deserves to be in jail, however, the Islamist has little to no use of the law because, for him, his religious doctrine requires him to slay Tiwari and Kanhaiya Lal – and slay he did.
  3. No other community is as perpetually offended as the Muslim community – that inherent offence stems from the fact that their religious doctrine considers itself the last, final and only true word of God – in that scenario – any other assertion that goes against their religious tenet is one that offends them. There are limitless words, phrases, averments, assertions, suggestions and opinions that can offend them. Essentially, no law can limit their offence and therefore, their propensity to indulge in street violence when they do get offended – because the moment you X offends them and therefore, must be criminalised, they will start getting offended by Y – all the while – dispensing justice per their religious doctrine as they did in the case of Kanhaiya Lal.
  4. A nation that is not Islamic in nature must be turned into an Islamic land.
  5. Lastly, their religious doctrine avers them to place their faith in the Ummah and not nation states – any nation state which does not conform to the Ummah is one that is an enemy state.

These are merely facts. These facts have long been established and repeated by several scholars over decades. Now, when we say that Section 195 (1)(a) is applicable to all religious denominations equally because it does not specifically mention a religious group, what we are essentially doing is being blind – wilfully – to these realities that stem from the Islamic doctrine.

The law in this case criminalises two specific imputations:

  1. That a person or a group of people don’t bear allegiance to the Constitution of India because they belong to a certain religious group
  2. That a person or a group of people cannot uphold sovereignty or integrity of India because they belong to a certain religious group.

Now, realistically, given Bharat’s history and its current realities, which community is most likely to not bear allegiance to the Constitution of India and/or not have the propensity to uphold the sovereignty and integrity of Bharat as a nation-state? For Hindus as a religious denomination, Bharat is a civilisational state that has the blood of their ancestors and the consciousness of their Gods and God Kings. It is the land they fought for and bled for. It is the land that they could preserve for themselves after the Islamic community tore their civilisation apart based on their religious tenets – based on the two-nation theory where they claimed that Hindus and Muslims cannot live together in the same nation because the Muslims are a nation unto themselves. While even the most “extreme” Hindu’s crime is saying that this is a Hindu land – taking ownership of this civilisation and vowing to preserve it – the most extreme Muslim has a completely opposite view. He believes that India is Dar-ul-Harb which must be converted to Dar-Ul-Islam. When such notions are harboured, there is obviously no allegiance to the Constitution and it is precisely the sovereignty and integrity of the nation that they wish to hurt – as it was during the brutal partition of the nation.

195 (1) (a) would essentially outlaw and criminalise a discussion on these very basic tenets based on which India has not only been torn apart but has been made to bleed for centuries. Academic criticism and evaluation of Islam and its tenets directly impact the course a civilisation would take – especially one with a substantial Islamic population. Criminalising the analysis of certain established facts that we have seen play out practically in front of our eyes not even 100 years ago is harakiri of the worst kind.

If this draft does become a law, essentially, for a Muslim to say that he believes in the supremacy of the Quran over the Constitution would be his religious right, because that is precisely what his religious doctrine preaches. He can defend that belief based on the religious freedom guaranteed to him by the Constitution of India (ironically). However, if someone was to point out that he believes in the Quran over the Constitution of India because he follows Islam, that person would be liable to be thrown in jail for 3 years (along with a fine).

And this is certainly not a figment of my imagination. Samajwadi Party leader ST Hasan had only recently said that the government can make laws but Muslims will only follow Sharia. TMC Minister Siddiquilla had said that the Quran will always prevail over the Constitution and this sentiment was also expressed by a Bollywood actor. Even the state of Kerala was all set to declare the supremacy of Sharia over the Constitution in the court of law and vouch for its legal and constitutional validity.

The sentiment expressed by these leaders, who swear by the Constitution when they are elected no less, are not surprising – thousands of Muslims harbour the same sentiment. Again, this is not my assertion.

Here is what Dr BR Ambedkar had said in his book Pakistan or Partition of India:

“Hinduism is said to divide people and in contrast, Islam is said to bind people together. This is only a half-truth. For Islam divides as inexorably as it binds. Islam is a close corporation and the distinction that it makes between Muslims and non-Muslims is a very real, very positive and very alienating distinction. The brotherhood of Islam is not the universal brotherhood of man. It is a brotherhood of Muslims for Muslims only. There is a fraternity, but its benefit is confined to those within that corporation. For those who are outside the corporation, there is nothing but contempt and enmity,” BR Ambedkar wrote in ‘Pakistan or Partition of India

The second defect of Islam is that it is a system of social self-government and is incompatible with local self-government because the allegiance of a Muslim does not rest on his domicile in the country which is his but on the faith to which he belongs. To the Muslim ibi bene ibi patria [Where it is well with me, there is my country] is unthinkable. Wherever there is the rule of Islam, there is his own country. In other words, Islam can never allow a true Muslim to adopt India as his motherland and regard a Hindu as his kith and kin.”

On the question of Muslim loyalty to his country vis-a-vis his loyalty to Islam, Ambedkar wrote:

“Among the tenets, one that calls for notice is the tenet of Islam which says that in a country which is not under Muslim rule, wherever there is a conflict between Muslim law and the law of the land, the former must prevail over the latter, and a Muslim will be justified in obeying the Muslim law and defying the law of the landThe only allegiance a Musalman, whether civilian or soldier, whether living under a Muslim or under a non-Muslim administration, is commanded by the Koran to acknowledge is his allegiance to God, to His Prophet and to those in authority from among the Musalmans…”

Ambedkar opined that the teaching of the Holy Quran rendered the existence of a stable government almost impossible. However, he was more alarmed by the Muslim tenets that prescribed when a country is a motherland to the Muslims and when it is not.

According to Muslim Canon Law, the world is divided into two camps, Dar-ul-lslam (abode of Islam), and Dar-ul-Harb (abode of war). A country is Dar-ul-Islam when it is ruled by Muslims. A country is Dar-ul-Harb when Muslims only reside in it but are not rulers of it. That being the Canon Law of the Muslims, India cannot be the common motherland of the Hindus and the Musalmans. It can be the land of the Musalmans—but it cannot be the land of the ‘Hindus and the Musalmans living as equals.’ Further, it can be the land of the Musalmans only when it is governed by the Muslims. The moment the land becomes subject to the authority of a non-Muslim power, it ceases to be the land of the Muslims. Instead of being Dar-ul-lslam, it becomes Dar-ul-Harb,” he said.

“To the Muslims, a Hindu is a Kaffir. A Kaffir is not worthy of respect. He is low-born and without status. That is why a country that is ruled by a Kaffir is Dar-ul-Harb to a Musalman. Given this, no further evidence seems to be necessary to prove that the Muslims will not obey a Hindu government. The basic feelings of deference and sympathy, which predispose persons to obey the authority of government, do not simply exist. But if a proof is wanted, there is no dearth of it. It is so abundant that the problem is what to tender and what to omit…In the midst of the Khilafat agitation, when the Hindus were doing so much to help the Musalmans, the Muslims did not forget that as compared with them the Hindus were a low and an inferior race,” BR Ambedkar had said

If the current draft were to be passed as a law, it is a given that Dr BR Ambedkar, had he written this book today, would have been jailed for 3 years (with fine).

Not just Ambedkar, here is what Sita Ram Goel wrote in his book ‘Muslim Separatism’:

“If the Hindus sang Vande Mãtaram in a public meeting, it was a ‘conspiracy’ to convert Muslims into kãfirs. If the Hindus blew a conch, or broke a coconut, or garlanded the portrait of a revered patriot, it was an attempt to ‘force’ Muslims into ‘idolatry’. If the Hindus spoke in any of their native languages, it was an ‘affront’ to the culture of Islam. If the Hindus took pride in their pre-Islamic heroes, it was a ‘devaluation’ of Islamic history. And so on, there were many more objections, major and minor, to every national self-expression. In short, it was a demand that Hindus should cease to be Hindus and become instead a faceless conglomeration of rootless individuals.” 

He continued, “On the other hand, the ‘minority community’ was not prepared to make the slightest concession in what they regarded as their religious and cultural rights. If the Hindus requested that cow-killing should stop, it was a demand for renouncing an ‘established Islamic practice’. If the Hindus objected to an open sale of beef in the bazars, it was an ‘encroachment’ on the ‘civil rights’ of the Muslims. If the Hindus demanded that cows meant for ritual slaughter should not be decorated and marched through Hindu localities, it was ‘trampling upon time-honoured Islamic traditions’. If the Hindus appealed that Hindu religious processions passing through a public thoroughfare should not be obstructed, it was an attempt to ‘disturb the peace of Muslim prayers’. If the Hindus wanted their native languages to attain an equal status with Urdu in the courts and the administration, it was an ‘assault on Muslim culture’. If the Hindus taught to their children the true history of Muslim tyrants, it was a ‘hate campaign against Islamic heroes’. And the ‘minority community’ was always ready to ‘defend’ its ‘religion and culture’ by taking recourse to street riots“.

If Sita Ram Goel lived today and wrote this book after this draft had become a law, he would too, be jailed for 3 years (with fine).

Not just them – you would potentially be in jail too simply for reproducing what they wrote and saying that you believe they were right.

In essence, 195 (1) (a) criminalises the academic criticism and analysis of Muslim separatism and the religious tenets that convince them to hold allegiance to the Islamic Ummah over the concept of the nation-state. One has to wonder how we can possibly celebrate Partition Horror Remembrance Day when the conversation around the very root of that partition is criminalised.

Section 195, sub-section 1, clause (b)

Section 195, sub-section 1, clause (b) says, ….. “asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of their being members of any religious, racial, language or regional group or caste or community, be denied, or deprived of their rights as citizens of India shall be punished with imprisonment which may extend to three years, or with fine, or with both“.

Section 195, sub-section 1, clause (b) seems to be a rather dangerous provision if one truly understands what it might be suggesting. Essentially, it says that one cannot ask for the suspension of rights of any group of people for being members of a religious, racial, language or regional group. What does this mean, essentially and how can it potentially impact an average citizen’s freedom of speech and expression?

Let us take the example of 1990s Kashmir. Islamic brutes were committing genocide against Kashmiri Hindus. If this provision was a law at that time, and if a citizen said that “there must be a curfew imposed in Kashmir because Muslims are committing a genocide against Hindus”, or that “There is a genocide against Hindus because of Islamic supremacy and they must be thrown in jail for it”, one would be imprisoned for three years – this, because you are calling for the suspension of legal or constitutional rights of a group of people while identifying them on the basis of not only their religion but also their region.

In the current context, Khalistanis demanding a separate state comes under waging a war against the nation and would be criminal. However, if a citizen points out that Khalistanis are separatists demanding a separate nation on the basis of their religion, and therefore, they should be thrown out of the country”, it could be potentially argued that the individual has demanded the suspension of the legal and constitutional rights of a group of people based on their religion, as therefore, must be thrown in jail for 3 years.

As far as the Nuh violence is concerned, if one says that internet services must be suspended and a curfew must be imposed in Nuh after the recent violence, even without naming the religion of the aggressors, it could be argued that one is demanding the suspension of legal rights of a regional group and therefore, the individual must be thrown in jail.

While these scenarios may seem like exaggerations, vague, unthoughtful laws do have an exaggerated effect and unfortunately, the provisions of Section 195 (1) (a) (b) (c) (d) would only end up favouring those who wish to hurt the sovereignty of India, giving them undue concessions, and penalise those law-abiding individuals who want the integrity of Bharat held sacrosanctly.

Section 195, sub-section 1, clause (c) (d)

Section 195, sub-section 1, clause (c) (d) says:

“(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons; or

(d) makes or publishes false or misleading information jeopardising the sovereignty unity and integrity or security of India,

shall be punished with imprisonment which may extend to three years, or with fine, or with both“.

These two clauses are not very different from what was already included in the IPC. Clause (c), of course, one can argue that it gives some protection to Hindus, for example, when bile is spewed against them by Dravidian supremacists, however, again, it is the power imbalance that would make it a potent tool in their hands. One would imagine that if the law has to be liberalised from the legacy of the British, this would be tweaked, however, there is nothing contained in these two clauses that changes the status quo.

Conclusion

The Indian State has historically given concessions to the Muslim community simply to ensure that their forever-hurt sentiments remain assuaged.

They have the right to be hurt – anyone does – but not the right to be riotous – and they are going to be riotous if you continue to legitimise their perennial hurt. The concession accorded makes them believe that their hurt is justified to the extent of giving calls to behead. Now once that concession is extended, their insatiable appetite will raise its ugly head. Once you accept their murderous sentiments, they will claim that your places of worship, your mandirs, are an affront to the Islamic faith. Once you concede that, they will say that you cannot even pray in your home because according to the Islamic community, there is no god but Allah and therefore, the fact that you believe in another god and pray to him is hurting their religious sentiments. The slide would end with them demanding your head on a pike because the very existence of Kafirs offends them. 

We must remember that the very basis of the partition was their demand for a ‘land of the pure” untarnished by the existence of Kafirs. When Gandhi allowed the Islamic community to run riots and murder Hindus, it validated their two-nation theory, enough for them to demand the dismemberment of India. When concessions were made to them about the Khilafat movement, terming it a nationalist movement instead of an Islamic one (that held allegiance to the Turkish Caliphate), MK Gandhi emboldened them to set their barbarity in motion and massacre Hindus in accordance with the Ummah they were fighting for. 

Bharat should not be giving yet another concession to the riotous Islamists by potentially criminalising even conversation around what led to the partition and the tenets that inspire thousands of Islamists to take to the streets – tenets that form the foundational existence of terror groups like PFI – tenets that aim to turn Dar-ul-Harb into Dar-ul-Islam.

Yes. These provisions can be used by both Hindus and Muslims but the societal realities are different from what we want them to be. Laws can also not be looked at from a partisan lens. Democracy is a revolving door and while you may believe that vague laws will be used to safeguard you when an ideologically aligned government is in power, vague laws are equally prone and more likely to be used against you by a state, regardless of govt in power, that is historically adept at taking a knee to violent, intolerant minorities who exert street power with impunity – it is for that reason that exceptions and safeguards for specific communities based on historical realities is necessary.

Those who forget history are doomed to repeat it. It would be a great injustice to Bharat if the very doctrine that stabbed her and made her bleed would be beyond analysis and reproach. One can only hope that the parliamentary debates on the IPC draft address these concerns and necessary caveats and exceptions are added.

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