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Focus on policing, not toying with law

Punjab Government’s prescription of a harsher punishment for blasphemy may eventually prove to be a cure worse than the malady.

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Saurabh Malik in Chandigarh

Punjab Government’s prescription of a harsher punishment for blasphemy may eventually prove to be a cure worse than the malady. The law is not without inherent flaws and disparity. It is a matter of belief, but a place of worship cannot be said to be of lesser importance than a scripture. However, damage to a place of worship will attract a maximum of two years’ imprisonment, while harm to a religious book will be punishable by life imprisonment under the new law.

Broadly speaking, Section 295 of the Indian Penal Code says whoever destroys, damages, or defiles, any place of worship, or an object held sacred, with the intention of insulting the religion, would be punished with imprisonment for a term up to two years, or with fine, or with both. But the person is liable to be sentenced to life, if he damages or causes injury to a scripture under the new provision — 295AA.

The only thing certain so far regarding the uncertainties brought about by the new law is the enhanced possibility of incrimination in false cases, akin to the ones where the instruments of implication are not required to be planted from outside against an innocent by the members of a not-so-disciplined force.

A law, any law, is as good as its implementation; and even the finest of regulations framed with the best of intentions, keeping larger public good in mind, can find the label of draconian easily attached to it because of faulty execution. Like any law, the task of carrying out the mandate of the new commandment will squarely fall on the police force; and one truth about it is the ability of its officials to tell untruths. The capability of the police to fabricate truth is no more a matter of conjecture and rumours. It is, rather, a fact confirmed and commented upon by a Single Judge of the Punjab and Haryana High Court in one of its judgments in a matter related to drugs.

Justice Amol Rattan Singh, in Sukhvir Singh and another versus the State of Punjab and others, asserted: “Simply accepting the word of a police official to be the absolutely true version of any particular occurrence, without any corroboration, amounts to saying that all such police officials are 100 per cent trustworthy and can tell no lie, which unfortunately is not the case. This observation is made with due respect to such police officers and officials, at all levels, who do their duty perfectly honestly and diligently.”

The observation came during the hearing of bail and suspension of sentence pleas, where the accused suspected of carrying contraband, were not produced before a magistrate or a gazetted officer by the police at the time of search.

In the case of Ashok Kumar Jain versus the State of Punjab, the Punjab and Haryana High Court granted Rs 5 lakh compensation to the petitioner-chemist after Justice Rakesh Kumar Jain described the case as a “sample of highhandedness” on part of the police, who “virtually implicated the petitioner in a case concocted by them”. As a result, he had to remain behind bars for more than five months before release on bail. The findings of Justice Mehtab Singh Gill Commission looking into the cases of false implications during 10 years of the SAD-BJP regime also confirm that the police functioning has not exactly been above board. In all, recommendations for FIR cancellation and action against cops have been made in almost 350 cases by the Commission set up by the government itself. Action has so far been taken in no less than 272 complaints.

The apprehensions regarding the new law largely stem from the fact that the tools of incrimination may not even be required to be planted by the police force in case it takes upon itself the task of implicating someone. A weapon or a sachet of contraband may not be that easy to procure for framing an innocent. But nothing from outside may actually be required in case of unholy intention to trap someone in the name of religion. An accidental damage to a scripture from way back, too, may become a cause of concern for the owner, who may actually find himself in the dock proving his innocence and lack of intention. A related aspect is of authoritarian policing. Retrograde laws that further empower the police and give them additional freedom to act in a manner they like while allowing room for them to get away with their deeds tend to suppress democratic policing.

Exercise of unconstitutional powers by the police often leads to reverse effect of the collapse of police apparatus. It, in turn, leads to the evolution of authoritarian regimes that generates fear among the people and leads to a backlash that plays havoc with the existing social setup.

Punjab has already suffered because of apparent and alleged unconstitutional policing in the state during the dark days of militancy. To say militancy in the state is an aftermath of police atrocities will be generating a debate, but there is no denial about repercussion of the exercise of extrajudicial powers. People rose to resent and that aggravated the problem. A law that tends to bestow excessive powers to the police force even today may lead to an opposite and worse reaction in cases of false implications.

The argument that harsher punishment is a deterrent, again, may not be apt. “No punishment has ever possessed enough power of deterrence to prevent the commission of crimes. On the contrary, whatever the punishment, once a specific crime has appeared for the first time, its reappearance is more likely than its initial emergence could ever have been,” said philosopher and political theorist Hannah Arendt. 

One look at the cases under the Narcotics Drugs and Psychotropic Substances Act is enough to confirm the applicability of her statement in the local context. Available information suggests that the NDPS Act has a high conviction rate of 77.2 per cent, as well as a high pendency rate of 80.6 per cent. Existing provisions permit death penalty in the case of repeat offenders. A convict may find himself serving a sentence of rigorous imprisonment for 10 to 20 years. Yet, the menace continues. Its extent can be gauged from Punjab Government’s own assertion that, in 2003, just about 3,545 FIRs were registered and 4,195 persons were arrested, compared to 10,830 FIRs in 2014 and arrest of 12,695 persons. In 2013, Punjab with 14,654 cases registered under the NDPS Act, out of 34,668 nationwide, topped the list.

Since the penalties are stiff, several procedural safeguards, and some immunity, have been provided in the Act. Any amendment to the blasphemy law needs to have a similar protection system. Every law can be misused. But harsher the sentence, tougher has to be the burden of proof on the prosecution. Perhaps, the courts will have to step in for the protection of constitutional rights.

International perspective  

The misuse of blasphemy laws in Pakistan is no more a matter of debate. The laws are believed to be widely misused by religious groups to instituting false court cases against the minorities, including Christians and Hindus. The Pakistan Penal Code prohibits blasphemy against any recognised religion and provides for penalties ranging from a fine to death. Available information suggests over 1,300 persons have been accused of blasphemy from 1987 to 2014. More than 60 accused of blasphemy have been murdered before the conclusion of trial.

Section 295AA

The Punjab Cabinet only recently decided to introduce in the Indian Penal Code a new Section, 295AA, which states: “Whoever causes injury, damage or sacrilege to Sri Guru Granth Sahib, Srimad Bhagwad Gita, Holy Quran and Holy Bible with the intention to hurt the religious feelings of the people, shall be punishable with imprisonment for life.”

What lies ahead

The Union Home Ministry’s reaction is yet to be seen. Two earlier Bills amending the CrPC and the IPC, passed by the Punjab Assembly during the previous SAD-BJP regime, were returned by the ministry to the state government. The Bills were reportedly found violating the principle of secularism.

The purported need

Punjab has seen almost 200 cases of sacrilege in the past three years. The issue was brought to fore only recently with Justice Ranjit Singh Commission’s report on the incidents being tabled before the Vidhan Sabha. The existing provisions do not prescribe deterrent punishment.

New crimes included

The new law is being projected as a move to effectively address the issue of sacrilege. An injury, damage or sacrilege to the holy books with the intention to hurt the religious feelings of the people has been dubbed as an offence and included in 295AA.

Nature of law

It’s far tougher than the existing laws as the punishment for offence under this Section has been enhanced from a maximum of two to three years defending upon the nature of offence to imprisonment for life.

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