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It is the duty of the State to create such a climate as would enable every one of its citizens to exercise freedom of religion and conscience. Section 99-A of the Criminal Procedure Code and Section 295-A of the Indian Penal Code are only legislative recognition of the power of the State to take action for the purpose of affording such protection to all its citizens. If the deduction that any citizen could intentionally wound the religious beliefs of others in the name of free-thinking were legitimate, no affront however deliberate and malicious it might be would be governed by Section 99-A of the Criminal Procedure Code and Section 295-A of the Indian Penal Code with, the result that they become otiose.

With great respect to the learned Judges, I must confess my inability to appreciate their point of view.

42. It falls to be observed in the first place that in order that a newspaper etc., may be attracted by Section 99-A the matter which is published must be punishable under Section 295-A (or the other Sections mentioned) of the Indian Penal Code; that is to say, when a conclusion is reached under Section 99-B by the Court, the Court is finding that a crime has been committed and the person responsible for the publication is liable to the punishment under Section 295-A, Indian Penal Code.

51. Now, we are absolved from the task of pronouncing upon the constitutional validity of Section 295-A, Indian Penal Code, because we have the recent pronouncement of the Supreme Court on that matter in . In that case, it was contended that Section 295-A, Indian Penal Code is 'ultra vires' and void as it interferes with a citizen's right to freedom of speech and expression and is not protected by the reservation made under Clause (2) of Article 19 of the Constitution.

The contention was repelled by a unanimous decision of the Constitutional Bench of Supreme Court. It follows from this decision that a person can be punished in spite of Article 19 of the Constitution with imprisonment of either description for a term which may extend to two years or with fine or with both, if he with the deliberate and malicious intention of outraging the religious feelings of any class of citizens of India by words, either spoken or written, insults or attempts to insult the religion or the religious beliefs of that class.

73. Now, it is also to he remembered that by finding the book as manifesting the necessary intention, we are holding the author guilty of a crime. In holding that Section 295-A Indian Penal Code falls under the reservation made under Clause (2) of Article 19 of the Constitution, the Supreme Court has observed in : --

"........... Section 295-A does not penalise any and every act of insult to or attempt to insult the religion or the religious beliefs of a class of citizens but it penalises only those acts of insults to or those varieties of attempts to insult the religion or the religions beliefs of a class of citizens, which are perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. Insults to religion offered unwittingly or carelessly or without any deliberate or malicious intention to outrage the religious feelings of that class do not come within the section. It only punishes the aggravated form of insult to religion when it is perpetrated with the deliberate and malicious intention of outraging the religious feelings of that class. The calculated tendency of this aggravated form of insult is clearly to disrupt the public order ....."