Content Regulation / Censorship, Hate Speech, Public Order, Religious Expression, Political Expression
Gündüz v. Turkey
Closed Contracts Expression
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The petitioner published a religiously charged article and was convicted under a section that made it unlawful to intentionally insult the religious beliefs of a community. The petitioner challenged the constitutionality of this section. The Court ruled that the section was constitutional.
The petitioner was the editor, printer, and publisher of a magazine called Gaurakshak, devoted to cow protection. In its November 1952 issue, a controversial article was published which became the basis of the prosecution of the petitioner. He was charged under section 295A of the Indian Penal Code, which made the malicious insulting of a religion unlawful. The lower courts found him guilty of maliciously outraging the religious feelings of Muslims and accordingly convicted him. He appealed this decision and challenged the constitutionality of section 295A.
The petitioner argued that any law restricting freedom of speech under Article 19(2) of the Constitution “in the interests of public order” would be valid only if the speech was likely to create public disorder, with its connection to the disorder being proximate. In that respect, insulting the religion of a community will not always lead to public disorder, though it may in some cases. Accordingly, the petitioner asserted that when the law covers both constitutionally protected and unprotected speech within its ambit, the Court should find such a law unconstitutional.
The Court rejected this argument. It began by noting that the restrictions enumerated under Article 19(2) are qualified by the expression “in the interests of”, which is markedly wider in its scope than the expression “for the maintenance of”. Thus, “[a] law may not have been designed to directly maintain public order and yet it may have been enacted in the interests of public order.” The Court then found that section 295A only penalizes those insults to religion that are “perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class.” Thus, those insults made “unwittingly” or without malice do not fall within section 295A. The Court justified this stance by holding that the “calculated tendency” of maliciously intended insults is to disrupt public order.
The petitioner also argued that section 295A is included in Chapter XV of the IPC, dealing with offences relating to religion, and not in Chapter VIII dealing with offences against public tranquility. Therefore, offences relating to religion have no bearing on the maintenance of public order. The Court rejected this argument, making reference to Articles 25 and 26, which guarantee the right to religious freedom. These rights themselves are subject to public order. Thus, the Court rejected the notion that a law cannot be enacted creating an offence in the context of religion to deter pubic disorder.
Accordingly, the Court found section 295A of the IPC constitutional and upheld the Petitioner’s conviction.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court found that any insulting expression made with malicious intention against a religion creates a tendency to public disorder. Thus, according to the Court, it does not matter whether the community in question is moved to actual violence. The mere utterance by the speaker is enough for prosecution.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Freedom of conscience and free profession, practice and propagation of religion
Protection of certain rights regarding freedom of speech
Freedom to manage religious affairs subject to public order, morality and health
Case significance refers to how influential the case is and how its significance changes over time.
The decision establishes a binding precedent within its jurisdiction. The Supreme Court’s decision is binding on all courts within the territory of India.
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