CURBING MISUSE OF BNS 299: RELIGIOUS HURT VS ARTISTIC LIBERTY

Why In News?

Experts have highlighted how Section 299 of the Bharatiya Nyaya Sanhita is weaponized to stifle free speech and artistic expression.

Debate over Free Speech and Religious Sentiments

India’s constitutional democracy protects freedom of speech (Article 19(1)(a)), but this right is subject to reasonable restrictions under Article 19(2) — including those related to public order, morality, and decency. 

The debate arises when expressions — satire, art, academic critique, or political commentary — are perceived as hurting religious sentiments, leading to criminal prosecution under laws like Section 295A (IPC) or its successor Section 299 (BNS). 

Section 299 of the Bharatiya Nyaya Sanhita (2023)

• Offence Relating to Religion: Re‑codified under Chapter XV of the BNS, penalizing acts that outrage religious feelings.

• Deliberate and Malicious Acts: Requires proof of premeditated malice — not accidental or academic discourse.

• Intention to Outrage Religious Feelings: Covers words (spoken/written), signs, or visible representations designed to hurt sentiments.

• Insult to Religion or Religious Beliefs: Punishable by up to three years’ imprisonment, fine, or both; cognizable and non‑bailable.

This codification modernizes colonial‑era provisions but retains their essential structure, emphasizing intent and malice as key elements.

Section 295A of the Indian Penal Code (1927)

• Colonial‑Era Origin: Introduced via the Criminal Law Amendment Act XXV of 1927 to curb communal friction in British India.

• Historical Trigger: The Rangeela Rasool controversy — a pamphlet deemed offensive to Islam — led to acquittal under existing law, prompting new legislation.

• Purpose: Protection of public order rather than theological sanctity.

• Effect: Criminalized “deliberate and malicious acts intended to outrage religious feelings.”

Free Speech vs Religious Sentiments

The judiciary’s role is crucial in ensuring that restrictions remain proportionate, intent‑based, and narrowly tailored, so that faith and freedom coexist in India’s plural democracy.

Judicial Intervention in Free Speech and Religious Sentiment Cases

What are the Major Challenges?

Subjective Interpretation of Religious Offence: “Hurt sentiments” lack objective legal parameters. Converts personal sensitivity into a criminal trigger, enabling arbitrary enforcement.

Multiple FIRs Across Jurisdictions: Identical complaints filed in several states for the same content. Accused must seek transit anticipatory bail nationwide, causing procedural harassment.

Risk of Vexatious Complaints: Extortionists, political entrepreneurs, and publicity seekers exploit laws for personal gain. Absence of financial penalties encourages frivolous litigation.

Self‑Censorship and Chilling Effect: Fear of prosecution and mob backlash leads creators to drop bold or critical content. Suppresses India’s historic tradition of open debate and artistic freedom.

Conflict Between Liberty and Public Order: Authorities prioritize short‑term appeasement of mobs over defending lawful expression. Weakens rule of law and emboldens vigilante censorship.

Difficulty in Proving “Deliberate and Malicious Intent”: Police often arrest without verifying statutory thresholds. Investigations rely on perception rather than evidence.

Fragmented Legal Remedies: No uniform procedure for consolidating multi‑state FIRs or fast‑tracking speech cases. Prolongs litigation and multiplies harassment.

Political Instrumentalization of Offence Laws: Religious offence provisions used to silence dissent or opposition voices. Undermines neutrality and credibility of law enforcement.

Mob Pressure and Vigilantism: Law enforcement yields to street protests instead of upholding rule of law. Encourages extra‑legal intimidation of artists and journalists.

Media Trial and Public Polarization: Sensational coverage amplifies outrage and prejudices fair trial rights. Converts legal disputes into communal flashpoints.

Digital Amplification of Offence: Social media accelerates spread of provocative content and complaints. Creates jurisdictional confusion and over‑criminalization.

Way Forward

Prior Executive Sanction Before FIR Registration: Enforce Section 218 BNSS (erstwhile 196 CrPC) requiring government sanction before registering FIRs under Section 299. Prevents impulsive or politically motivated prosecutions.

• Example: Arnesh Kumar vs State of Bihar (2014) — Supreme Court restricted automatic arrests for offences under seven years.

Judicial Pre‑Screening of Complaints: Require magistrate review before FIR registration for offences relating to religion. Ensures prima facie verification of “deliberate and malicious intent.”

Consolidation of Multi‑State FIRs: Codify mandatory clubbing of identical FIRs into one primary jurisdiction. Example: Arnab Goswami vs Union of India (2020) — SC consolidated FIRs to protect free speech.

Fast‑Track Free Speech Benches: Establish dedicated courts to dispose of speech‑related cases within 30–60 days. Prevents “process as punishment.”

Penalizing Frivolous and Vexatious Complaints: Apply Section 250 CrPC / BNSS equivalent to impose heavy compensatory costs on false complainants. 

• Example: Law Commission 267th Report on Hate Speech — recommends strict evidentiary standards.

Institutionalizing the “Spark in a Powder Keg” Test: Restrict public‑order curbs only to direct, proximate incitement to imminent violence.

• Example: S. Rangarajan v. P. Jagjivan Ram (1989) — speech cannot be curtailed unless it acts like a spark in a powder keg.

Protection of Creative and Academic Expression: Explicit statutory exemption for satire, academic critique, and artistic works under Section 299 BNSS. Encourages intellectual pluralism and cultural vibrancy.

Police Training and Sensitization: Regular training on constitutional limits of free speech and intent‑based offences. Reduces arbitrary arrests and misuse of penal provisions.

Digital‑Era Safeguards: Introduce uniform cyber‑jurisdiction rules for online speech offences. Prevents overlapping FIRs across states for identical digital content.

Periodic Legislative Review: Mandate parliamentary review of Section 299 BNSS every five years. Keeps law aligned with evolving social realities and technological change.

Conclusion

Reforming Section 299 of the BNS by mandating prior judicial scrutiny and checking the heckler’s veto is essential to harmonize public order with constitutionally guaranteed expressive freedoms.

Source: INDIANEXPRESS