Two state laws (and one proposed law) with constitutional implications

Last month, Punjab passed the Indian Penal Code (Punjab Amendment) Act, which inserts a new Section 295AA into the IPC. 295AA, according to reports, prohibits “sacrilege” to the Guru Granth Sahib, and imposes life imprisonment as a punishment. I haven’t yet been able to obtain a text of the law, but if indeed the term used is “sacrilege”, it seems to me that there is a clear over-breadth problem with respect to Article 19(1)(a). It would also be interesting to see whether Section 295AA has a mens rea requirement, since that was precisely the ground on which the Supreme Court upheld Section 295A in Ramji Lal Modi’s Case – reasoning that an “intentional” insult to religious sentiments can cause public disorder, bringing the section within the scope of Article 19(2). It also seems to me that the sentence of life imprisonment is highly disproportionate, and can constitute cruel and unusual punishment, violating Article 21.

On April 11, the Maharashtra Legislative Council cleared a bill to “regulate” dance bars in the State of Maharashtra. The Hindu has an account of some of the stringent conditions imposed by the bill. Apart from the fact that the bill imposes prior restraint by subjecting all performances to the approval of the censor board, it also allegedly prohibits “vulgar” performances. Once again, this seems to be a textbook case of over-breadth under Article 19(1)(a) – quite apart from the fact that the Supreme Court itself, on more than one occasion, has specified that mere vulgarity (if it lacks a “prurient interest”) does not constitute obscenity.

Last week, Maharasthra enacted a law against social boycotts (a previous draft may be accessed here). The law prohibits social boycotts (which are defined in numerous ways, ranging from expulsion from the community, to obstructing regular business and social relations, to obstructing the performance of marriage) within communities. It is therefore applicable horizontally, and – naturally – impacts the freedom of association (which, as the Court has held, carries with it the freedom not to associate). Social boycotts – and legislative action against them – have a long history in India, as we have often discussed on this blog. Starting from school segregation in the late 19th century, to Ambedkar’s movements for water-tank and temple access in the 1920s, to the framing of the Constitution (Article 15(2)), to the Protection of Civil Rights Act, to the striking down of the Bombay excommunication law in 1962 – the history has been a bitter and contested one. Notably, the draft bill specifically prohibits excommunication, thus bringing it into potential conflict with the Dawoodi Bohra judgment. It will be interesting to see if this gets taken to the courts.

(PS. I haven’t been able to obtain the texts of any of these laws – help on this would be most welcome!)

Advertisements

Leave a comment

Filed under Free Speech, Freedom of Association

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s