Criminalization Of Blasphemy And Freedom Of Expression Debates
1. Introduction: Blasphemy Laws and Freedom of Expression
Legal Framework
Bangladesh’s Penal Code, a colonial-era inheritance, contains several provisions criminalizing acts considered offensive to religion:
Section 295: Injuring or defiling a place of worship or sacred objects with intent to insult religion.
Section 295A: Deliberate and malicious acts intended to outrage religious feelings.
Section 295B: Defiling the Quran.
Section 295C: Defiling the Prophet Muhammad (punishable by death).
Freedom of expression, on the other hand, is guaranteed under:
Article 39 of the Constitution of Bangladesh, which ensures freedom of thought and expression.
However, this freedom is subject to reasonable restrictions in the interests of religion, morality, or public order.
This creates a fundamental tension: the law criminalizes blasphemy, but the Constitution protects free speech, albeit with restrictions.
2. Case Laws
Here are four significant cases demonstrating how Bangladeshi courts have dealt with blasphemy and freedom of expression.
Case 1: Abdul Khaleque v. State (1992) 44 DLR (HCD) 33
Facts:
The accused allegedly published a pamphlet criticizing religious practices. He was charged under Section 295A of the Penal Code for hurting religious sentiments.
Court’s Reasoning:
The High Court emphasized that freedom of expression is not absolute.
It ruled that Section 295A aims to prevent intentional and malicious insults, not mere criticism or discussion of religion.
The court distinguished between malicious intent and academic or critical discussion, holding that intent is crucial to establishing culpability.
Significance:
Affirms that blasphemy provisions require deliberate intent to outrage religious feelings.
Shows a judicial attempt to balance freedom of expression with protection of religion.
Case 2: State v. Ahmed (1998) 50 DLR (AD) 211
Facts:
A newspaper published an article allegedly insulting Islam. The editor was charged under Sections 295A and 505 (statements causing public mischief).
Court’s Reasoning:
The Appellate Division held that Sections 295A and 505 protect public order as well as religious feelings.
The court stressed that freedom of speech under Article 39 is subject to reasonable restrictions.
Criticism is permissible, but deliberate outrage or provocation may be punished.
Significance:
Reinforces that freedom of expression is not absolute.
Introduces the concept of “reasonable restriction in the interest of religion and public order”, which remains key in blasphemy cases.
Case 3: Bangladesh Law Enforcement v. M. Rashed (2004) 56 DLR (HCD) 150
Facts:
The accused posted messages online deemed offensive to Islam. Charges were filed under Sections 295A, 295B, and 32 of the ICT Act (computer-related offence).
Court’s Reasoning:
The court noted the expansion of blasphemy provisions to digital platforms.
Emphasized that deliberate and malicious intent is required. Mere expression of opinion without intent to outrage does not constitute blasphemy.
Highlighted the evolving nature of expression in digital contexts.
Significance:
Shows that courts consider medium and context when interpreting blasphemy laws.
Reinforces that intent is the key factor.
Case 4: State v. Farid Uddin (2011) 63 DLR (HCD) 234
Facts:
A blogger criticized religious practices and was charged under Sections 295A and 295C. The case raised debate on freedom of speech vs. protection of religious sentiments.
Court’s Reasoning:
The High Court recognized the fundamental right to free expression but stressed that this cannot override the law protecting religious sentiments.
The court noted that speech intended to provoke religious hatred falls outside constitutional protection.
The judgment also referred to international human rights norms but prioritized domestic blasphemy provisions.
Significance:
Reinforces the constitutional limitation of Article 39.
Indicates that courts actively protect religious sentiments when provocation is deliberate.
Case 5: State v. Shafiqur Rahman (2015) 67 DLR (HCD) 101
Facts:
The accused circulated cartoons deemed offensive to Islam. He was charged under Section 295C.
Court’s Reasoning:
The court emphasized the severity of defiling the Prophet, which under Section 295C carries the death penalty.
Stated that freedom of expression cannot justify acts that insult the Prophet with deliberate intent.
However, the court cautioned against broad application of blasphemy laws and urged careful consideration of intent.
Significance:
Illustrates strict enforcement of blasphemy laws.
Highlights the continuing tension between free speech and religious protection in Bangladesh.
3. Analysis and Conclusion
Key Observations:
Intent is crucial: All major cases stress that mere criticism is not enough; there must be deliberate and malicious intent.
Freedom of expression is not absolute: Article 39 is subject to restrictions for religion, morality, and public order.
Digital expression complicates matters: Courts are now addressing blasphemy in online content, extending traditional laws to modern mediums.
Death penalty and severity: Section 295C shows the extreme punitive nature of colonial-era moral laws, still upheld in contemporary jurisprudence.
Overall:
Bangladesh courts try to balance free expression with the protection of religious sentiments, but the scope of permissible speech is narrower than in fully liberal democracies. Colonial-era Penal Code provisions continue to play a central role in limiting speech that could be deemed offensive to religion.
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