Shashi Tharoor’s recent criticism of Section 299 of the Bharatiya Nyaya Sanhita has reopened one of India’s most difficult and emotionally charged debates: how should a constitutional democracy reconcile freedom of expression with protection against deliberate attacks on religion?
Writing in The Indian Express on Sep. 16, the Congress MP described Section 299 as a ‘legal relic’ and warned that its misuse can turn the criminal-justice process itself into a punishment. His central concern is that an individual may face arrest and prolonged legal proceedings before a court determines whether the alleged act was actually deliberate and malicious.
There is substance to that concern. But Tharoor’s intervention also deserves a response from another perspective. For millions of Muslims, Hindus, Christians, Sikhs and followers of other faiths, attacks on sacred personalities and religious beliefs cannot simply be reduced to an individual’s subjective ‘emotional hurt’.The challenge for India is therefore not to choose between freedom of speech and religious dignity. It is to protect both without allowing either to become a weapon against the other.
What does Section 299 Actually Say?
Section 299 of the BNS, which came into force on July 1, 2024, largely carries forward the substance of Section 295A of the Indian Penal Code.It criminalises acts committed with ‘deliberate and malicious intention’ to outrage the religious feelings of a class of citizens by insulting its religion or religious beliefs. The provision covers words, signs, visible representations and electronic communication, and provides for imprisonment of up to three years, a fine, or both.
This wording is significant. The law does not say that every criticism of a religion is a crime. Nor does it automatically criminalise every expression that somebody finds offensive. The statutory requirement of deliberate and malicious intention is central. That distinction is often lost in public debates about blasphemy.A serious discussion therefore has to distinguish between criticism, scholarship, satire, disagreement, ignorance, provocation and deliberate religious vilification.
The Rangila Rasool Background
Tharoor traces Section 295A to the controversy surrounding Rangila Rasool in 1927. The pamphlet contained disparaging references to Prophet Muhammad ﷺand became the centre of intense communal controversy in colonial India.The legal history, however, is more complicated than simply describing Section 295A as a colonial device designed to suppress free thought.
The Rangila Rasool controversy emerged in an already highly charged communal environment. The initial prosecution under Section 153A encountered difficulties in court, leading to demands for a specific provision dealing with deliberate attacks on religious beliefs. Section 295A was subsequently introduced.
Thus, the history of the law contains two elements that remain relevant today: the need to prevent communal provocation and the danger that criminal provisions can themselves be abused. Both deserve attention.
Can the Muslim Response be Dismissed as ‘Mob Sentiment’?
Tharoor’s strongest language is directed at what he calls the elevation of the ‘fragile feelings of the mob’ over individual rights. He argues that those who invoke BNS 299 to defend religion can end up undermining the very traditions they claim to protect.But the Muslims concern about insults to Prophet Muhammad ﷺis not simply a question of a crowd becoming angry because its feelings were hurt.
For Muslims, Prophet Muhammad ﷺoccupies a foundational place in their faith. The Qur’an instructs Muslims to respect him, follow him and defend the sanctity of his prophetic mission. Consequently, deliberate vilification of the Prophet is understood by Muslims as a grave religious offence.
One may disagree with the theological basis of that belief. But in a plural constitutional society, the existence of a deeply held religious conviction cannot itself be dismissed as irrational or uncivilised.
At the same time, Islamic teaching does not give private individuals or mobs the authority to administer punishment. This distinction is crucial. Condemning blasphemy is not the same thing as endorsing mob violence.
If ‘Mob Sentiment’ Cannot Determine Law, What About ‘Aastha’?
There is, however, a question that Shashi Tharoor’s argument inevitably raises. If, as he rightly argues, the ‘fragile feelings of the mob’ should not be allowed to override the fundamental rights of an individual, what should be the constitutional status of ‘Aastha’, faith or religious belief, when it is invoked collectively to determine questions of property, history and places of worship?
The question is particularly relevant after Ayodhya.This creates an uncomfortable asymmetry in the national debate. When Muslims object to an insult to the Prophet, their reaction can sometimes be characterised as ‘mob sentiment’ or excessive religious sensitivity. But when a much larger political mobilisation invokes Aastha in relation to a place of worship, the same concept can acquire an entirely different public legitimacy.The constitutional question, however, should be consistent. Neither anger nor Aastha can substitute for law.
That principle has become even more significant because the Ayodhya movement did not end with Ayodhya. The subsequent demands concerning other historic mosques have repeatedly invoked claims about temples allegedly existing beneath them. Parliament had already enacted the Places of Worship (Special Provisions) Act, 1991, precisely to preserve the religious character of places of worship as they existed on August 15, 1947, subject to the statutory exceptions. The legislation reflected a constitutional choice: historical grievances cannot endlessly be converted into contemporary communal disputes.
Therefore, there is a larger principle at stake.If Aastha is allowed to become a legal instrument for claiming places of worship, while the religious sentiments of another community are dismissed merely as ‘fragile feelings’, the resulting standard cannot be described as equal citizenship.
A democracy cannot tell one community that its faith is sacred while treating another community’s faith as merely ‘mob sentiment’. Nor can it permit any community to convert faith into a claim of legal entitlement without evidence.No mob should become the judge of blasphemy; no mobilisation of faith should become the judge of history.
The Real Problem is Selective Outrage
India’s problem is not merely that religious-offence laws exist. It is also that outrage can sometimes be selective.One religious community may be told to tolerate offensive speech in the name of liberalism, while another is offered immediate protection. A political leader may receive greater latitude than an ordinary citizen. A film, book or social-media post may generate different reactions depending upon the identity of the person who objects.Such inconsistency undermines confidence in the law.
If Section 299 is retained, its application must therefore be demonstrably religion-neutral.The law must protect Muslims from deliberate insults to Islam and the Prophet, just as it must protect Hindus from deliberate attacks on Hindu beliefs and deities, Christians from deliberate attacks on Christianity, Sikhs from attacks on Sikhism and other communities from comparable conduct.
Free speech is importantbut not absolute. The more difficult question is where legitimate criticism ends and deliberate incitement or religious vilification begins.
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