OFFENCES AGAINST RELIGION UNDER THE BHARATIYA NYAYA SANHITA, 2023: BALANCING RELIGIOUS FREEDOM AND FREEDOM OF EXPRESSION

Abstract

This paper examines the legal framework governing offences against religion in India, with particular emphasis on the provisions of the Bharatiya Nyaya Sanhita, 2023 (BNS) and their relationship with the constitutional guarantees of religious freedom and freedom of speech and expression. The study begins by examining the constitutional foundations of religious freedom under the Constitution of India, particularly Articles 14, 15, 25, 26, 27 and 28, and considers the extent to which the State is required to maintain neutrality while protecting religious liberty. It then analyses the principal BNS provisions concerning offences against religion, including the destruction or defilement of places or objects of worship, deliberate and malicious acts intended to outrage religious feelings, disturbance of religious assemblies, trespass into places of worship or sepulture, and deliberate acts intended to wound religious feelings. Through an examination of judicial decisions, the paper highlights the importance of intention and mens rea in determining criminal liability and distinguishes deliberate and malicious conduct from unwitting, careless or bona fide acts. Particular attention is given to the judicial interpretation of religious offences and their interaction with the constitutional protection of freedom of speech and expression under Article 19(1)(a). The paper critically examines the continuity between the erstwhile Indian Penal Code, 1860 and the BNS, observing that the principal offences against religion have largely been retained despite the broader restructuring of India’s criminal laws. It further identifies concerns arising from expressions such as “outrage religious feelings” and “insult to religion”, which may permit subjective interpretation and potentially affect legitimate expression. The study also considers procedural safeguards under the Bharatiya Nagarik Suraksha Sanhita, 2023. It concludes that the continuing challenge lies in maintaining an appropriate balance between protecting religious sentiments, preserving public order and safeguarding freedom of expression in a constitutional democracy.