Painting of Saraswati by Muslim-born Indian artist MF Husain. Husain’s renderings of Hindu deities was controversial.

This is the sixth in a series of posts on the history and future of blasphemy. The previous post explored the international human rights standard of blasphemy as “religious hatred,” and at the problems arising from states’ efforts to ensure equal protection by criminalizing hate speech, religious hate speech, and blasphemy.

By Austin Dacey

Who is the blasphemer? These days we are accustomed to the image of the blasphemer as the naysayer, the skeptic who dismisses the sacredness of someone else’s cow. Historically, of course, most of those accused of blasphemy and impiety have been deeply religious people accused by co-religionists who insisted on a different understanding of their tradition. It is not so much skeptic-versus-believer as believer-versus-believer. The same analysis holds, I would argue, for blasphemers who come from outside the religious tradition in question and even for secularists.

The Muslim-born painter M.F. Husain was hounded out of his native India in 2006 after more than a decade of harassment and lawsuits by Hindu conservatives outraged by his nude portaits of Hindu goddesses. “I have not intended to denigrate or hurt the beliefs of anyone through my art,” he commented in 2010 upon renouncing his Indian citizenship at the age of 96. “I only give expression to the instincts from my soul.”

From a moral perspective, there is an important symmetry between Husain’s stance and that of his devout critics. Both are located on a continuum of manifestations of conscience, exercises of the capacity to grapple with what Martha Nussbaum has called “ultimate questions” of meaning, morality, and value. It would be an arbitrary prejudice to label one side in this clash a commitment about the sacred and relegate the other to mere “expression” against that commitment, for the intolerant attitudes of the critics were no less of an insult to the painter’s spiritual practice of art. Yet this is exactly what we do when we adopt the contemporary discourse of personal blasphemy. We arbitrarily assign to traditional, recognized “religions” the role of victim. We ask how the artist could have so little regard for the worshippers, not how the worshippers could have so little regard for the artist.

The International Covenant on Civil and Political Rights (ICCPR), like other human rights documents, is animated by the values of freedom and equality. It contains no less than twelve references to equality. Its Article 26 sets forth a principle of nondiscrimination:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The nondiscrimination principle has two implications. First, laws against blasphemy, religious insult, and religious defamation are inherently discriminatory insofar as they provide a legal recourse to those traditions deemed “religions” by anthropological consensus that is not available to people of unrecognized faiths or secular worldviews. Second, the international legal right of freedom of thought, conscience and religion rightly covers the practices of the secular and the religiously heterodox, even when they are found sacrilegious by others. A government that singles out some citizens’ conceptions of the sacred for official protection is guilty of a gross failure of equal treatment.

In 2011, the treaty body for the ICCPR, the Human Rights Committee (not to be confused with the Human Rights Council) addressed blasphemy laws in a “general comment” on freedom of expression. The Committee’s general comments interpret the meaning and scope of the treaty’s provisions in light of past practice as well as communications from states and civil society stakeholders, clarifying the application of its principles to changing social circumstances. While the Committee’s judgments do not constitute new law, they do represent morally authoritative ideals towards which the parties to the treaty are expected to make good-faith efforts.

MF Husain at work. He passed away in 2011.

General Comment No. 34 is a forceful reminder that restrictions on offensive expression must not breach the Covenant’s guarantees of equality before the law and freedom of thought, conscience and religion. It asserts, “Prohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant”:

Thus, for instance, it would be impermissible for any such laws to discriminate in favour of or against one or certain religions or belief systems, or their adherents over another, or religious believers over non-believers. Nor would it be permissible for such prohibitions to be used to prevent or punish criticism of religious leaders or commentary on religious doctrine and tenets of faith.

This is not an argument for extending legal protection to everyone’s sacred cows. That way lies chaos. It is an argument for extending legal protection to no one’s sacred cows. The same principle of nondiscrimination can be brought to bear on the religious hatred standard, insofar as it too privileges organized religion over disorganized conscience. Denmark’s Article 226b, for instance, singles out for protection—among other categories—groups of people who are threatened, insulted or degraded “on account of their faith.” It does not single out people—regardless of their affiliation—on account of their convictions of conscience.

The shift from spiritual blasphemy to personal blasphemy is a move in the direction of equality insofar as it removes protection for particular creeds. Yet the transformation remains incomplete so long as the law protects “religion” as such.

Austin Dacey is a representative to the United Nations for the International Humanist and Ethical Union. He is the author of The Future of Blasphemy: Speaking of the Sacred in an Age of Human Rights and The Secular Conscience: Why Belief Belongs in Public Life. His writings have appeared in the New York Times, USA Today, and Dissent. In 2010, he created The Impossible Music Sessions, a forum in New York City for artists who cannot perform publicly due to censorship, political intimidation or cultural pressure.

With support from the Henry R. Luce Initiative on Religion and International Affairs.