House of Lords - Religious Offences in England and Wales

Select Committee on Religious Offences in England and Wales Minutes of Evidence

Memorandum from the National Secular Society

PREAMBLE

1. The Executive Director of the Society and Dr David Nash gave evidence at the Committee's hearing on 18 July 2002. The following written evidence on the Society's behalf is also submitted, comprising three parts.

2. Below are considerations from a legal perspective of criminalising offence to "feelings". They were prepared at our request by Colm O'Cinneide, lecturer in law at University College London.

3. Informal discussions following the hearing led us to understand that the suitability of the relevant provisions of the Indian Penal Code were being examined as a possible template for prospective legislation in the UK. Dr Nash had already been aware from previous work of historic problems concerning the Code and had already discussed them with the Executive Director before the hearing. We therefore undertook to provide detailed evidence on this very specialised but nevertheless highly relevant topic, and are incorporated in the two attachments, both specifically prepared for this submission at our request.

4. The first attachment is prepared by Dr Nash and deals with historic difficulties, including telling evidence concerning the British Government's rejection of proposals to be incorporated into British law in the 1930s. The second attachment was drawn up by the Executive Director of the International Humanist and Ethical Union, who is himself an Indian. Mr Gogineni's deep concern, bordering on incredulity, of the possibility of these particular provisions being incorporated into UK law constitute in our opinion a powerful testament. I will send you the attachments shortly, after I have had a chance to do some minor editing and considered the presentation.

CRIMINALISING OFFENCE TO "FEELINGS"

5. The use of the criminal law to prohibit offending the sensibilities or feelings of particular groups in society is inherently problematic, creating as it does insurmountable issues of legal uncertainty and imposing a major "chilling effect" on free speech, in other words, self censorship. The chequered history of the common law offence of blasphemous libel illustrates this, and demonstrates the serious problems that will arise in respect of any offence that is aimed at protecting sensibilities. Much of the debate on blasphemy has centred on the restriction of its scope to the beliefs of the Church of England: however, the key problems with blasphemy stem directly from the nature of the offence rather than its scope. Attempt to reform blasphemous libel or the creation of a new offence of offending religious feelings will just replicate and extend the corrosive effects of the out-dated existing law, while failing to address any of the tangible harms that have been cited in support of an extended offence.

6. International human rights law has established a general requirement that any law that curtails free speech has to be proportionate, justified by compelling social needs and provide a sufficient degree of legal certainty that will enable those potentially affected by the law to be able to predict adequately the consequences of their actions. The requirements of proportionality and legal certainty are particularly important in that restrictions on free speech may have a "chilling effect" out of all proportion to the actual scope of the restriction in question. These requirements are firmly established in the jurisprudence of the European Court of Human Rights, the US Supreme Court, and of other constitutional courts, as well as in the work of the leading academic, legal and philosophical commentators on free speech. While the European Court of Human Rights has upheld blasphemy laws in Wingrove v UK[22] and Otto-Preminger Institut v Austria[23], both of these decisions relied upon the "margin of appreciation" given to signatory states of the Convention in how they protect morals. Whether the UK should protect religious feelings from offence requires an analysis of the impact of such laws on free speech that is not confined to the legal issue of whether such laws are permitted under the Convention, which provides a floor rather than a ceiling for human rights protection in the UK. The United States Supreme Court has held that such laws violate free speech. [24]

Justification

7. The impact and application of blasphemous libel in English law has proved seriously damaging to free speech in two interconnected aspects, both of which will similarly apply to any offence founded on criminalising offence to "feelings". Originally used to curtail free speech and critical inquiry, even in its later use as a tool for protecting sensibilities blasphemy has had a corrosive impact on free expression, by firstly disproportionately restricting the use of particular forms and types of comment for ill-defined reasons and in the absence of visible harm, while secondly violating the requirements of legal certainty and thereby casting a "chilling effect" over a wide range of expression beyond the intended scope of the law.

8. As David Feldman, legal adviser to the Joint Select Committee on Human Rights has noted[25], blasphemy makes a distinction between "appeals to judgment" carried on in a "sober and temperate and decent style" in the words of Lord Denman CJ in R v Hetherington[26], and appeals to raw feelings in the form of rhetoric, metaphor or imagery, which are deemed to constitute blasphemy if they constitute an "appeal to the wild and improper feelings of the human mind", again in the words of Lord Denman. This is so even if the metaphorical or rhetorical appeal to "wild . . . feelings" are actually expressions of religious belief, as they were in the case of the poem held to be blasphemous in R v Lemon[27]. As Feldman notes, this distinction between different forms of argument is difficult to defend, and is based on nineteenth-century notions of rationalist debate that have been decisively rejected in other areas of the law. Any extension of blasphemy to encompass outrage to religious feelings in general will preserve this distinction.

9. In addition, this distinction is designed not to prevent any discernable form of harm to the rights of others, as there is and can be no right not to be offended. In particular, there is no link between any offence of offending feelings and the protection of religious groups against incitement of hatred. Legislation prohibiting harassment, incitement to hatred or the breach of public order is entirely adequate for preventing the use of rhetorical or metaphorical speech in the public sphere from causing violence or breaches of public order. Maintaining public order therefore cannot be a justification for this offence. Indeed, any offence modelled on the Indian law prohibiting giving offence to religious feelings would for example permit a speaker who painstakingly praised the virtues of the Muslim religion to simultaneously castigate and incite hatred against the followers of that religion, in the same way that some Nazi propaganda used to distinguish between the Jewish religion and the "degenerate" state of those who practiced this religion in modern times.

10. Offences based on hurt to religious feelings or their absence also protect a particular type of sentiment, while not protecting other forms of feelings or belief that if attacked in an intemperate manner may cause similar levels of hurt or indignation. For example, deeply held political beliefs such as veneration for a particular political philosophy or leader, or pride in one's nation, are not protected, and any legislation that did protect these beliefs against intemperate and rhetorical attacks would be plainly viewed as massively restrictive of free speech. In addition, there is no requirement to show that intense shock to deeply-held feelings was actually inflicted. As Geoffrey Robertson QC noted in respect of the film held to be blasphemous by the BBFC in the case of Wingrove v UK[28], this decision protected certain religious groups from "self-induced discomfort at the thought that some other adult would be able to view it without being shocked".[29]

11. The protection of religious freedom in Article 9 of the ECHR can of course as the ECrtHR noted in Otto-Preminger be violated in extreme cases "where the effect of particular methods of opposing or denying religious beliefs can be such as to inhibit those who hold such beliefs from exercising their freedom to hold and express them".[30] However, offences involving hurt to religious feelings, including blasphemy, do not require any element of inhibiting religious belief: offence or outrage alone can trigger a conviction, which is wildly disproportionate.

12. The justification for religious offence laws with their considerable restraint on free speech is therefore based on arbitrary distinctions and lacks a compelling rationale which would justify such restraint: no basic rights or entitlements are being violated. This remains equally true in respect of the Indian legislation as it does of the current blasphemous laws in the UK.

Legal Uncertainty and Chilling Effect

13. In addition, any offence of hurting religious sensibilities will invariably have an uncertain ambit, and consequently as with the blasphemous libel laws result in a considerable "chilling effect" on free speech. As noted above, the distinction between temperate and intemperate criticism of religious beliefs is imprecise: hence there is no satisfactory method of determining what speech will be deemed blasphemous. Feldman notes that the actus reus of the crime of blasphemy has been "expressed in so many different ways that it is hard to know what conduct is caught by it", and cites multiple and varying definitions of blasphemy. [31]There appears for example to be no clear reason why the poem in R v Lemon which was written from a religious perspective was deemed to be offensive, whereas Nietzsche's assaults on Christianity as a "slave religion" are regarded as central of controversial features of the western philosophical tradition, and taught as such in first-year university philosophy courses.

14. The Mens rea for blasphemous libel is at present minimal: intention to cause shock and offence, or even recklessness as to the possibility of causing shock is not required. While the Indian legislation requires intent to outrage religious feelings, whether or not such feelings will be outraged at any given case is still dependant on the perception by others of the nature of the speech acts in question. Nor is there any clear distinction possible between challenging beliefs and outraging those same beliefs, a crucial lack of clarity which is reflected in the actual experience of the Indian legislation (see accompanying documents). Under any form of offence to religious feeling, the nature of the required actus reus and Mens rea is uncertain to a degree perhaps unmatched in criminal law.

15. The uncertainty prevents individuals from being able to determine the consequences of their speech acts to any reasonable degree. This both ensures an unacceptable degree of legal uncertainty and casts a "chilling effect" over a variety of speech acts, including any artistic or philosophical works that use strong rhetoric or imagery to discuss religious issues. The Irish Supreme Court, notwithstanding references in the Irish Constitution to the central role of religious belief, held in Corway v Independent Newspapers (Ireland) Ltd. [32]that the common law offence of blasphemous libel was too imprecise to be compatible with the constitutional guarantee of due process of law.

16. Any offence based on the notion of hurt to religious feelings will therefore share the core defects of blasphemy: a lack of legal uncertainty leading to a consequential chilling effect, as well as a lack of justification for the artificial distinctions imposed. Extending blasphemy will open up additional areas of uncertainty and speech restraint, for no discernable gain in terms of protecting vulnerable groups or basic rights. In casting a shadow over any future Satanic Verses, extending or preserving blasphemy is an unsustainable legislative option if the core requirements for thriving free speech are to be maintained in the context of religious debate.

ECCLESIASTICAL COURTS JURISDICTION ACT 1860, SECTION 2

17. We would like to reinforce the opposition we expressed at the hearing to the above. Because this legislation is an example of religious privilege, we supported Peter Tatchell in defending the case concerning Dr Carey giving an Easter sermon at Canterbury Cathedral. The Committee may be surprised to learn that there was deep unease among those concerned with justice and human rights about the disproportionate severity of the potential penalty and the potentially of partiality, and even religious influence, over magistrates' court hearing. A large number of prominent supporters decried the prosecution, in the form of a letter to The Times, one of the signatories of which was the former Scottish Primus, Dr Richard Holloway. Amnesty International were sufficiently disturbed that, rather than simply express their concern, they formally became involved in defending Tatchell as they do prisoners of conscience. It was only after the application of pressure by them and a number of QCs, one of which even felt so strongly he offered his services free, that a stipendiary magistrate from London took over the case, this being the best solution possible under the law as it stands. We have already referred you to the £18.60 fine imposed by the magistrate, appearing to give a clear—and as far as I'm aware unprecendented—signal of contempt for the law.

The statistics of convictions support our view that there is no need for this privileged legislation, a throwback to the time when the Church yielded draconian power—and we appeal to the committee not to bend to their calls for the legislation to be retained. Especially if, as we suggested, any disturbances and funerals—whether or not religious—and dealt with in the same way as those for public meetings, there seem to be practically no instances where offences, such as sexual acts, could not be prosecuted other legislation Examples such as the pig's head being placed in a mosque are most unlikely to take place without the commission of criminal damage or some other offence. We hope that the widespread concern that we described above will weigh more heavily with the committee and persuade it to repeal Section 2 which seems to us alien in this age of human rights. We have been advised this Section may be wide open to challenge in future cases under Art. 6 ECHR (fair trial) on account of the partial nature of the tribunal.

APPENDIX 1

THE INDIAN CRIMINAL CODE OF 1860 (REVISED 1927) SOME THOUGHTS UPON ITS PROVISIONS AND THEIR HISTORICAL CONTEXT PREPARED BY DR DAVID NASH, HISTORIAN AND AUTHOR OF SEVERAL BOOKS ON BLASPHEMY

PREAMBLE

1. In recent discussions around the issues of blasphemy and religious hatred before the House of Lords Select Committee on Religious Offences consideration of the provisions of the Indian Criminal Code has been mentioned. In discussions with the Clerk to the Committee it appears that the investigation of this and its provisions is being considered as offering a possible model for future legislation in this area of English law.

2. Thus we thought it may be helpful to the Committee for me to re-visit my own researches in this area and to offer my opinions upon the advisability or otherwise of this course of action.

3. I presume that the two particular sections of the Code envisaged as models are sections 295a and 298 the text of these two provisions (according to the 1860 edition) is as follows

4. 295-A Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs

5. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class or citizens of India, by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

and

6. 298 Uttering words, etc, with deliberate intent to wound religious feelings.

7. Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

8. As I will suggest below there are considerable problems with taking the provisions of the Indian Criminal Code as a reliable model on which to base prospective legislation. In emphasising this I want to allude particularly to the historical context of this because there are two overriding reasons why this is especially relevant to this issue. Firstly the assumptions behind the construction of the Indian Criminal Code itself do need some consideration. More importantly the possible use of the Indian Criminal Code as a Model for constructing new religious offences has been considered before and the attitude of the Home Office was to express great scepticism about its potential utility. Many of the concerns offered in 1930 mirror concerns with an emphatically contemporary resonance. Indeed the problems encountered in 1930 would now appear to be significantly amplified and have been joined by new problems that were scarcely envisaged then. Many of the problems already identified around a new offence of Incitement to Religious Hatred also apply to an introduction of the provisions of the Indian Criminal Code. Whilst the Code represents a law that has been enacted and is on a statute book it is not by any means a useful example to emulate or draw inspiration from.

CONTEXT OF THE CODE'S CONSTRUCTION

9. There is no escaping the fact that the Indian Criminal Code was constructed in a clearly imperial context by a ruling power intending to legislate for and actively govern a subordinate possession and its population. Its construction in 1860 came a mere three years after the Indian Mutiny and must in some senses be seen as a response to some of the concerns raised from this catastrophic incident. Nonetheless the Indian Criminal Code has been seen by many as a far-sighted and, in the context of the times, remarkably liberal document. [33]It was constructed, in the main, by the Lawyer James Fitzjames Stephen, an individual who had a significant legal reputation. [34]On occasions Stephen could hold controversial views and he was later to condemn the (Justice John Duke) Coleridge judgement in the Foote case of 1883-84 and its attempts to make a blasphemy law more "civilised" when it should, to his mind have been abolished. [35]In this he openly criticised Justice Coleridge's conduct of the Foote case, and the resulting judgment. Such criticism of a serving judge was, at that time, almost certainly unprecedented.

PREVIOUS CONSIDERATION IN 1930

10. Since the Foote case there has been regular lobbying to repeal the blasphemy statutes and Common Law of blasphemous libel. This has generally taken the form of petitions to the Home Secretary, sometimes leading to a private member's bill in parliament. Since the 1890s such lobbying took place regularly, becoming especially potent during the 1920s, and culminating in a campaign in 1929-30. This resulted in the Home Office giving serious consideration to blasphemy repeal and extension, as well as allied issues.

11. When a repeal bill was introduced in 1929, the Home Secretary J R Clynes received a deputation which called for the abolition of the blasphemy laws as contrary to the "spirit of the age".

12. The deputation insisted the application of the law was muddled, inconsistent and capable of almost arbitrary interpretation. One member of the deputation, Graham Wallas, suggested that the way forward would be for parliament to frame and enact laws relating to public peace that could be used to protect all religions. In reply the Home Secretary Clynes admitted that he was sympathetic to the cause of reform but closed the door to any government involvement in the issue. Instead he hoped that a private member's bill would be the answer since the composition of the Commons may have allowed the proposal to stand a decent chance. Although Clynes had pleaded that lack of parliamentary time prevented the government from taking any action he was nonetheless advised strongly against further legislation by officials in the Home Office. In their briefing document to Clynes for the meeting he was advised that repealing the statutes against blasphemy was an irrelevance whilst the operation of the Common Law offence could safely be left to the sound judgement and practice embodied in the Coleridge judgement and the case law that it subsequently influenced. The Home Office here demonstrated that it was particularly concerned with the public order implications and was most anxious that these were preserved. Whilst the old statutory provisions, it was admitted, would remove grievances concerning the one-sidedness of the law this course should only be followed "provided the law against speech or action tending to breach of the peace is safeguarded."[36]

13. With a Labour Victory the previous year 1930 saw the bill considered in Cabinet as well as receive a second reading during which the labour member for Bermondsey, Alfred Salter, spoke movingly of the penalties meted out to his Quaker ancestors. [37]By this stage Clynes was echoing the advice of his department in recommending that the bill be amended in committee so as to ensure that breaches of the peace could still be encompassed by the law, and said as much in Parliament. [38]Subsequent advice from the Home Office also saw alteration of the law as inevitably linked to dangers inherent in the "spirit of the age" argument. If this were acknowledged then the law should protect all forms of religious belief—a rhetorical suggestion in Home Office memos which was clearly intended to convey their position which was that blanket protection was unreasonable. [39]

14. In addressing the numerous problems posed by the Bill, the Home Office advised that it be amended. Various suggestions were offered, any of which would have considerably reduced the bill's attempt to deal with grievances. The route of amendment involved either safeguarding the power to prosecute in cases where a breach of the peace occurred or creating a new offence of penalising attacks upon all religious feeling backed up by the power to imprison rather than merely fine offenders. To lend weight to these suggestions passages from the Indian Penal Code (section 295 a and section 298) the Metropolitan Police Act of 1839 (Section 54: 12 and 13) and elements within the Good Rule and Government Byelaws[40] which covered indecent and threatening language were offered as potential models and useful areas of guidance. From this discussion two amendments emerged: one appending a proviso requiring actual breach of the peace and another intended to protect religious feelings by prohibiting the use of language, drawing, gesture or representation intended to insult or wound and "calculated to cause a breach of the peace." [41]Advice from the Director of Public Prosecutions was firmly against the second course of action and the dangers inherent in the creation of a new offence which would have had considerable civil liberties repercussions. Moreover the DPP anticipated trouble in the provisions which sought to protect religion of any kind, although it was not made clear whether this objection related to the extension to non-Christian faiths, or whether it would also have applied were the law only to be extended to other Christian denominations. [42]

15. The DPP, J A Stainton, offered the Home Office three suggested versions of the amendment for consideration. The least liberal sought to define the expression of blasphemy to include words writing and publishing content which would outrage and provoke breaches of the peace. The more liberal versions, however, sought to distinguish between attacking and impugning religious convictions and merely impugning them in the course of potential breaches of the peace[43] These three clauses appeared to have embraced different aspects of the Indian Code solution without following through its logic of universal protection for all religions. The first identified explicitly, in the manner of the Indian Code, the methods by which offensive matter could enter the public domain yet required a proof of calculated intention on the part of the blasphemer to "outrage the religious convictions of any persons and thus to provoke a breach of the peace". The two others ignored the catalogue of means in favour of a more generalised statement which aimed at protecting the religious convictions from any assault upon them regardless of the intention of offender and, arguably, the behaviour of the offender against. This in truth was an ill fitting attempt to adapt the Indian Code to English conditions. In its way it perhaps represents a recognition that religion needed protection as an aspect of personal conviction rather than as a widely accepted social ideology. However it was also designed to close the door to total abolition of the laws related to religious opinion which the bill represented and constituted an attempt to liberalise the law without conceding the case for a pluralisation of its application. [44]

16. The Home Office itself was by now convinced that the solution was to, as far as possible, "allow the bill to die". Thus it hoped that amendments would perform this unenviable task while the Home Office continued in its round of canvassing opinion and gathering evidence so that it would influence any course the bill and its proceedings might take. However advice from the Committee stage of the bill was less than helpful. It recommended amending the bill to prevent the actions of an individual "outraging the religious convictions of any other person." This was modelled on the revised Indian Code of 1927 which had substituted the public order influenced notion of "outrage" for the previously introspective notion of "wounding". The logic of recourse to the Indian Code was also stated as a recommended amendment—that the protection of all religions should be strongly linked to the question of breach of the peace. This however could not be done, so advice argued, without sweeping away all existing laws—ecclesiastical, common or statute related to blasphemy.

17. This restatement, or redefinition, of the offence itself opened a whole new can of worms which the Parliamentary Committee had considered at length. The phrases "religion" or "religious convictions" were clearly an essential part of the offence and the Committee admitted that this "...has no very precise meaning. Is it for instance to be an offence to attack Mormonism or the Agapemonities?" [45]

18. The Committee, aware of the Gordian knot it tied, offered a way out of the problem. Clearly any attempt to define the word religious was farcical—as the Committee itself pithily stated "The draftsman by a stroke of the pen would have to solve a question which has been the subject to theological controversy for centuries." Citing religions by name was a dangerous strategy which would cause endless debate about which religions to include or exclude. The impossibility of reaching such decisions was manifest and indeed the suggestion that such decisions might be rescinded in the light of scholarship was clearly hinted at in the example cited of a recent work which argued that Hinduism was "hardly worthy of the name religion". Moreover this whole state of affairs would make the law a perpetual movable feast and would do nothing to settle the matter once and for all, an element that was clearly uppermost in the mind of those at the Home Office. If the blasphemy laws were to be altered at all this should only be done if a satisfactory long term resolution could be had. The solution that the parliamentary Committee suggested would be to leave the definition of "religion" out of the measure. This was an outcome that must have greatly pleased those at the Home Office since this served to keep the sovereignty of public opinion, in the shape of juries, untouched. The Parliamentary committee however pointed out that such juries would be pronouncing on the vexed question that theologians had previously baulked at. Moreover there was also an inherent problem of identifying words which appropriately drew the line between "fair criticism" and "outrageous attack". Simply put, this objection uttered concerns that legislation would prevent temperate criticism which would have no universal measure of outrageous other than the sensibilities of the religious adherent so attacked and the predilections of the jury. The Indian Code emphasis on intention was no help here either since—as the Home Office emphasised:

19. "The ordinary law is that a man is held to intend the natural consequences of his acts. Any clause requiring a jury to look beyond the natural consequences of the acts proved in evidence, and to look into the mind of the prisoner would be considerable departure from the present law and would lead to great difficulty in its application." [46]

20. The analogy of the law of libel was similarly considered and rejected. In this instance a successful defence that the words complained of were true and publication was in the public interest was unworkable when brought to the example of blasphemy. Visions of courtroom attempts to prove the truth or otherwise of words spoken against various deities had an air of farce and the committee wisely suggested that such protracted proceedings would clearly offend believers far more than any potentially blasphemous publication or utterance was likely to. The committee saw the only way out in a proposal which asserted that the matter published "must not only be calculated to provoke a breach of the Peace but, must also be in its nature grossly offensive." Once again the Committee admitted that there were problems even here not least in the definition of the central words used in the new offence. The definition of "scurrilous", garnered from the OED was taken to mean, somewhat unhelpfully, "using such language as only the license of a buffoon can warrant; characterised by coarseness or indecency of language, in jesting or invective; grossly opprobrious or jocular." Such a definition of the law would clearly have inflamed any cases conducted under its auspices—only a small leap of imagination is necessary to envisage what (albeit in very different ways) George Jacob Holyoake in the 1840s, George William Foote in the 1880s or John William Gott in the 1920s would have said in court and the press about such a law. The Committee was rather happier with its formulation of the notion of outrage which, again courtesy of the OED, was taken to mean "to do violence to; to subject to outrage; to wrong grossly, treat with gross violence or indignity."

21. The use of the word "publication" was also given consideration. Despite the apparent wish of some to extend the law to cover actions and conduct, the Committee swiftly agreed that this would represent an inadvisable extension of the laws. Clearly the Parliamentary Committee realised the express need to minimise potential grievances and to limit the potential use of the law as far as possible. The Committee also recognised that the government were also clearly intending to exclude Northern Ireland from such legislation since the Government of Ireland Act gave Stormont powers to legislate for such matters and any interference from Westminster would amount to "constitutional impropriety" on the part of the Imperial Parliament. The situation in Scotland was slightly different since its exclusion from such an Act was on the grounds that the Lord Advocate's powers represented sufficient discretion to regulate the law.

22. Some of the arguments advanced by repealers and those opposed to the laws as they currently stood were themselves on occasions not calculated to make the decision for government easier. In my opinion, the suggestion that the Indian Code might form the basis of a solution unhelpfully complicated the debate. Once the whole question of extending the laws beyond Christianity came on the agenda it was no surprise to find civil servants and senior government figures baulking at problems associated with finding a working definition of religion.

23. A second problem which highlighted this conception of the law as a potential anachronism was the accusation that the existing law and the system which regulated it defended only Christianity and visibly the Anglican branch of it. The second half of this accusation is more easily dealt with. The attacks made upon religious sensibilities made by Gott were considered beyond most measure of the proprieties of debate making the case against him clear cut. The fact that such cases were now considered primarily on the manner of the statement involved further served to distance consideration of the precise doctrine or religious text attacked. When we also consider the more ecumenical attitude that began to prevail within, for example, the English Catholic hierarchy from the turn of the century onwards a tacitly agreed version of Christian fundamentals served to iron out the doctrinal inconsistencies that had served defendants so well in the years before the Coleridge dictum. At this period this blending of sacred doctrines into a language and rhetoric of religious feelings was, on the face of it, an advance in religious tolerance. As we shall see however this was to have a significant and unforeseen impact at the end of the 20th century. However, the accusation that the regulation of opinion had not kept pace with the increasing plurality of society was rather more difficult to refute. Public opinion and the opinion of local officials was mobilised solely in the defence of the Christian religion. Although the Indian Code solution was frequently mentioned, and this clamour heightened from the Edwardian period onwards, enthusiasm for its adoption in administrative circles was minimal.

CONCLUSIONS

24. The Indian Criminal Code does not solve any of the inherent problems associated with defining religion. It only appears to do so because it was constructed by a ruling power over a religious landscape it considered with a degree of condescension. Moreover, such a solution was to all intents and purposes imposed and was not required to pass the sanction of consultation. The definition of religion was "forced" upon the ethnic and religious groups of India as the law saw them in 1860. That the Code has survived owes more to the forbearance of such groups than to the utility of the law.

25. It is not even as if the difficulties over the precise role of "intention" (and Mens Rea) is solved by recourse to this solution. In the complex situations in which such a law would be likely to be applied, establishing a "deliberate intention to wound" would be very onerous indeed. Even with the most honourable intentions, it would be very difficult for an individual speaking or writing to gauge in advance the effect of his (her) utterance or text. A speech may be commenced with the worthiest of motives only to receive an entirely unexpected "wounded" response, yet the perception of being wounded might be palpably unreasonable. The wounded response might perhaps have resulted from the attention of a wholly unexpected audience (and these individuals may even attend with the expectation of being wounded), or that some of the audience were intoxicated. While the objective of legislation in this area will be defending religious minorities confronted by hate crime, the law must take care not to obstruct temperate criticism of religious practices, texts, evangelising or recruitment policies. Each of these could arguably fall into the remit of this law.

26. Such a formulation assumed that the ability to wound religious feelings is an objective constant that an external authority can regulate upon and to which it can provide definitive answers. The context of the introduction of the law is, in our opinion relevant. It was introduced by a governing power overseeing a colony. We consider that it is doubtful that such an overbearing regulating power would command popular support in the UK—a modern Western plural society, but most importantly, one that is continually diversifying.

27. The alternative is to require counsel for the "victim" to demonstrate how far such ideas "wound". Were this route to be taken it would in our opinion lead to the litigious bringing large numbers of cases to the courts inviting the formulation of unsavoury ideas into religious idioms. The cases would also be time-consuming and, as has happened in India, the judiciary would be under intense pressure not to acquit, as doing so may offend a vociferous minority. We are also very worried indeed that, once passed, such legislation would in practical political terms, be capable of being repealed, however overbearing it turned out to be in practice.

28. There is also a note of extreme caution to be sounded around the Indian Code's two clauses which both use the words "religious feelings". In the context of the Code's construction these words carry a note of condescension. Whilst Christianity was considered a religious "belief" the gap between this and more obviously indigenous religions was emphasised through the use of the word "feelings". Whilst this might appear to be of merely historical interest the continuation of the words "religious feelings" into any construction of a modern offence would have extremely serious implications. Religious "feelings" are not the same as religious "beliefs". Religious "beliefs" can be demonstrated, subjected to measures of quantity, quality, orthodoxy and apostasy. Indeed the English legal system used to do this regularly. The Test Acts (which prescribed that undergraduates at Oxford and Cambridge universities were required to be communicants of the Church of England is one example as is the requirement of subscription to the 39 Articles in other, related, contexts. Laws existed against Anti-Trinitarian views until the early years of the 19th century and disabilities existed against Catholics until 1829, some indeed persisted beyond this date. Similarly, parliamentary and courtroom oaths were governed by a religious requirement until these were both altered through the machinations of Charles Bradlaugh in the second half of the 19th century.

29. A major stumbling block of adopting in the UK some variation of the Indian code is that we cannot see how hurt to religious feelings can be satisfactorily measured in an objective way by the courts. Given that religion itself is so difficult to define, then defining hurt to religious feelings is still more demanding. It would of course be dangerous were the definition to be so loose as to encompass "anything individuals feel deeply enough about", or "anything individuals feel to be greater than themselves" or other amorphous "feelings" about anything from soap opera to football. It is not as irrelevant as it may as first appear to refer at this point to the individual who appeared on a jury in the United States wearing a uniform from the science fiction television programme Star Trek. When questioned, the individual concerned outlined that the programme embodied his own morality and outlook on life and that he was proud to display this allegiance publicly. In a wider context, we should also remember that the work of a number of sociologists and (particularly post-modern) theologians, is redefining the nature of the sacred with an intention of sweeping more into this definition. Such changes are not confined to the margins; well-known Anglican Don Cuppitt and the Sea of Faith have been moving in this direction for decades.

30. Lastly, it should be noted that the wording of the two clauses of the Indian Criminal Code do not necessarily rule out proceedings for blasphemy and could arguably be seen as a positive extension of such laws. This is particularly worrying if the "intention to wound" formulation is the basis of this law and its use. Whilst the same issues around intention and Mens Rea apply, the issue of "wounded feelings" put the issue firmly in the hands of the offended individual and the interpretation of such a law would presumably turn on demonstrating the capacity of texts and utterances to wound. Such proceedings could be profoundly damaging for belief systems—both those proceeding in this way and those proceeded against. Moreover as with so many other aspects of this potential legislation the loopholes available for the dangerous and unscrupulous are numerous.

16 October 2002

APPENDIX 2

STATEMENT BY BABU GOGINENI (AN INDIAN HIMSELF)

MY BACKGROUND

I am an Indian involved in Human Rights and Humanist activism. Before I became Executive Director of the (London-based) International Humanist and Ethical Union a number of years ago, I was founder secretary general of South Asian Humanist Network and Rationalist Association of India; Trustee of the Indian Renaissance Institute, and Joint-Secretary of the Indian Radical Humanist Association.

I am appalled that legislators in the UK may be seeking inspiration from Indian legislation as regards the issues of blasphemy and religious hatred.

Provisions of Section 295 of the Indian Penal Code are obviously far less virulent than those of Section 295 of the Pakistan Penal Code (and 295 of Bangladesh Criminal Code), but all relate to issues of blasphemy and or religious hatred, and equally open to misuse. It is true that in some aspects Indian legislation is far more advanced than the UK's: for example, in India all citizens are treated equally before law; whereas in Pakistan and in the UK the state religions have various protections and privileges which are in fact an affront to the concepts of equal protection and treatment of all citizens under law. Religious discrimination is not illegal in the UK. In this respect it is right to seek inspiration from Indian legislation that is more in tune with the universal standards of human rights relating to religious privilege.

(India has an exemplary legislation preventing the use and appeal to religious sentiment during electoral campaigning (how it is implemented is a matter of political will in India's context!), but that may not be relevant here).

But as the material I previously forwarded to you will show—the case of d'Avoigne, the persecution of painter MF Hussain, the harassment of the editor of Vijaya Viharam, the threats being received by Mr Srini Pattathanam from Home Ministry officials in Kerala as a result of his exposure of the sordid doings of a God woman Amruthanandamayee, the serious problems faced by the Rationalists as they try to expose Satya Sai Baba (for info on Sai Baba, see my article Sex Lies and Video tape—Retelling the Satya Sai Story hosted on many Websites)—Section 295 is the culprit whose dangerous provisions are open to clear abuse. The whole world is seized of the sordid affair of the death penalty awarded to Dr Shaikh in Pakistan; Taslima Nasrin (the well known author) was hounded out of Bangladesh after section 25 was invoked in Bangladesh*. In India, the presence of 295 and 298 on the Statute Book has unquestionably resulted in infringements of the rights of citizens as regards the free exercise of their freedom of expression—many books have been banned under this or related provisions; playwrights harassed and films censored. Some of the people who have been victims of this law are respected academics.

I am at a loss to understand why would the UK seek to emulate India's backward laws rather than look to the provisions of Article 18 of the UDHR and the UN Declaration on Freedom of Religion etc of 1981.

Babu Gogineni

Executive Director

IHEU

10 October 2002

*Taslima Nasreen has been the subject of further litigation in her home state according to the BBC. She has been sentenced to one year in jail in Bangla Desh in absentia for criticising Islam (James Palmer 14 October 2002)

http://news.independent.co.uk/world/asiachina/story.jsp?story=342458

I append an article relating to blasphemy law in the sub-continent.

Blasphemy in Pakistan

By Babu Gogineni, Executive Director, IHEU

The Blasphemy law in Pakistan is a shameful relic of the British Raj's 1860 Criminal Law. It was modified in 1926 before Pakistan was born, and again as recently as in 1986 and in 1991 when criminal law was Islamicised by the then dictatorship. How, under the regime of Islamic punishments, the evidence required is "at least two Muslim adult male witnesses who are supposed to be truthful persons who abstain from major sins". It is required at the trial that the Presiding officer must be a Muslim. Islamic law of evidence declares that the evidence recorded by minorities and women has a status inferior to that of Muslim men.

In the case of Blasphemy, very often the accused is murdered either in police custody or even in the court room itself by blood thirsty zealots. So few cases are even brought to fruition. General Pervez Musharraf's recent attempts to improve the law has been met with vehement opposition from the clerics, and he immediately climbed down, in deference to the Islamic fundamentalists. The law remains as barbaric as it was. And so is the mob. Pakistan's minorities, 3% of Pakistan's 140 million citizens, are non-Muslims; and there are at least 20 million Shiites, a minority Islamic sect in Pakistan. The situation for these minorities is desperate. The main victims of Pakistan's discriminatory and repressive legislation so far has been the Ahmadias, the Christians and the Hindus—and the most victimized are the Christians and Ahmadias. Their evidence is not accepted, their rights to freedom of religion or belief not protected, they are not allowed high-positions in the Army or in the bureaucracy, and they are forced to vote under the separate electorate system, where non-Muslims vote for non-Muslims.

But the main concern of Pakistan's Human Rights activists are the Blasphemy laws. Blasphemy of Islam is punished differently and much more severely than Blasphemy of other religions. There is no Freedom of Religion or Belief in Pakistan. Bishop John Joseph, Roman Catholic Bishop of Faizalabad even killed himself in protest in front of the sessions court of Sahiwal, on 5 May, 1998. But even this ultimate sacrifice did not move the administration or the legislature.

Pressure must mount from all quarters to enable the law to change, and to protect the victims. Pakistan's theocracy is depriving many honest citizens of their liberty and their life.

22 (1996) 24 EHRR1. Back

23 (1994) 19 EHRR 34. Back

24 Cantwell v Connecticut 310 US 296 (1940). Back

25 D Feldman, Civil liberties and Human Rights in England and Wales, 2nd ed. (Oxford: OUP, 2002), 913. Back

26 (1840) St Tr (NS) 563 at 590. Back

27 (1979) AC 617 HL. Back

28 (1996) 24 EHRR1. Back

29 See G Robertson, Freedom, the Individual and the Law 7th ed. (Harmondsworth: Penguin, 1993) 254. Back

30 See n.2 above, paras 47-48. Back

31 Feldman, at p 917-18 Back

32 (2000) ILRM 426. Back

33 Radzinowicz, L (1957). Sir James Fitzjames Stephen 1829-94. Back