The reason for all of this easy to state but not so easy to explain. The book was considered by many Muslims to be blasphemous and its author, himself a Muslim, to be an apostate. His was therefore a double crime, a sort of religious treason. Most of his accusers had not actually read the book, and had only been informed of its contents by those who had deliberately sought to find offence in it. That said, many of Rushdie’s defenders had not read the book either. Having read it myself (through liberal Catholic eyes) I would accept that it is uncomfortably offensive to Muslims and blasphemous in the sense of being disrespectful of certain aspects of Islam. Rushdie himself admitted as much: I distinctly remember at the time watching him being interviewed on TV and saying, in response to the first flurries of protest, including the public burning of copies of the book in a Bradford street, that he wished he’d gone further. Later, when the fatwa was issued, he was less sanguine. He even went through the motions of re-embracing Islam, by way of what looked like a diplomatic initiative rather than a genuine reconversion to the faith in which he’d been born in India (and had abandoned at some point during his naturalised British life); but to start with at least he seemed to accept that the book had not only caused offence but was meant to do so.
The question whether The Satanic Verses was blasphemous in fact therefore need not detain us. But was it blasphemous in law? And if it wasn’t, shouldn’t the law be changed to reflect the undoubted reality of the case? At a conference held in Newport, Gwent in February 1990, on “the Law of Blasphemy – An Islamic Perspective”, the 500 delegates from 181 different Muslim groups proposed an extension of the law of blasphemy to cover all religions, not just Christianity. It was even suggested by one prominent Muslim leader that if Rushdie were tried (and presumably convicted) for blasphemy, the fatwa would be lifted. Others, perhaps more sanely, argued that the law of blasphemy should be abolished altogether; it was an anachronism, they said, which did not belong to a modern, pluralistic, multi-cultural society whose freedoms, of both of expression and of religion, were now protected by the European Convention on Human Rights.
That it had not already been abolished became apparent a decade or so before The Satanic Verses controversy. When Mrs Mary Whitehouse, a well known guardian of public morals, brought her private prosecution against the editor and publishers of Gay News in 1977 for “vilifying Christ”, it was widely assumed that the common law offence of blasphemous libel had fallen into desuetude. There had been no recorded case of it for over half a century. Nevertheless the prosecution — prompted by a poem by James Kirkup entitled "The Love that Dares to Speak its Name", which appeared to suggest that Jesus Christ had been a practising and promiscuous homosexual — resulted in convictions for the defendants, whose appeals were dismissed by both the Court of Appeal and the House of Lords: see R v Lemon [1979] QB 10; [1979] AC 617.
As well as the five judgments (two dissenting), is well worth reading the report of argument in the House of Lords, especially that of Louis Blom-Cooper QC and Geoffrey Robertson for the first defendant, which includes a handy survey of the history of blasphemous libel. They argued that if that arcane offence was still in existence, then it ought to be given a modern interpretation. It should therefore no longer be confined to Christianity, and it should include a requirement for proof of intent, not just to publish, but to give offence. That argument was rejected by the majority. It was enough to show that the defendants intended to publish, and that what they published was, in the jury’s view, blasphemous in the sense of outraging the feelings of Christians.
Significantly, the defendants in R v Lemon were not prosecuted (as they might have been) under the Obscene Publications Act 1959. As discussed in the first of this series, “Law vs Literature, No 1: Obscenity” (WLR Student Newsletter, No 24, Autumn 2006), the statutory crime of obscenity under the 1959 Act had been enacted to replace the old common law offence of blasphemous libel. Had blasphemy also been put onto a statutory footing, it might have included an “artistic benefit” defence along the lines of the (somewhat absurd) section 4(1) of the Obscene Publications Act 1959. Then the defendants in R v Lemon could have argued that, even though the poem in question was blasphemous, its publication was “justified for the public good” in the interests of “literature, art or learning, or of other objects of general concern”.
Such a defence was, in essence, what was urged on his behalf by Rushdie’s fellow writers and other members of the “chattering classes” or liberal intelligentsia. “Yes, okay, fair enough, the Satanic Verses can be read as offensive to Muslims. But, hey, we’re all grown-ups here, this is modern Britain, there’s such a thing as freedom of speech you know, and we’ll let you maintain your beliefs if you let us have our say. Okay?” Broadly speaking, that was the tenor of the remarks made in long letters in the broadsheets, in articles and broadcasts and questions in Parliament, in response to the Muslim protests and the support given by British Muslims to the Ayatollah’s fatwa.
The law could presumably have been changed after R v Lemon, but it was not. So when, following Mrs Whitehouse’s example, Abdul Hussain Choudhury, on behalf of the British Muslim Action Front, laid informations against Rushdie and his publishers (Viking Penguin) alleging the common law offence of blasphemous libel, the magistrate refused to issue summonses. The applicant sought judicial review and in Regina v Chief Metropolitan Stipendiary Magistrate, Ex p Choudhury [1991] QB 429 the Divisional Court of the Queen’s Bench Division, refusing his application, confirmed that the offence of blasphemy was “for historical reasons clearly restricted to a scurrilous vilification of the Christian religion”. Since the law was clear, it was not the function of the court to extend it, particularly in a criminal cause where offences could not be retrospectively created, by including other religions. It was for Parliament to effect any change in the law.
The confirmation that the protection offered by the law of blasphemy was confined to the Christian religion seemed to many only to rub salt into the wounded pride of Islam. The key to the court’s decision lies in that phrase “for historical reasons”. The applicant had also sought to charge Rushdie and co with seditious libel. And a with that offence, discussed in my previous article “Law vs Literature, No 3: Seditious Libel” (WLR Student Newsletter, No 26, Spring 2007), blasphemy was essentially a public order offence designed to protect the position of the monarch as head of the Church of England.
It may originally have been as an ecclesiastical offence, akin to heresy, but by the time of Taylor’s Case (1676) 1 Vent 293 its metamorphosis into a civil offence was complete, Hale CJ directing the jury in that case that “to say religion in a cheat, is to dissolve all those obligations whereby civil societies are preserved”. As Lord Sumner later explained, in Bowman v Secular Society Ltd [1917] AC 406, 458, “the established form of Christianity ... is the basis of the law itself” and, at p 459, the “gist of the offence of blasphemy is a supposed tendency in fact to shake the fabric of society”. This was because, as Lord Diplock explained in R v Lemon [1979] AC 617, 633h, “church and state were thought to stand or fall together”.
This justification for the offence also explained what Watkins LJ called the “anomaly” in an “increasingly plural society” of established Christianity being the only religion protected by the law of blasphemy. In Bowman’s case Lord Sumner must have been aware of this anomaly, as he quoted Baron Alderson’s direction to the jury in Gathercole’s Case (1838) 2 Lewin 237, 254: “A person may, without being liable to prosecution for it, attack Judaism, or Mahomedanism, or even any sect of the Christian Religion (save the established religion of the country); and the only reason why the latter is in a different situation from the others is, because it is the form established by law, and is therefore a part of the constitution of the country.”
As time went on, the focus of the offence narrowed: the attack on the established faith had to be scurrilous and insulting, rather than simply a philosophical or scientific objection. But despite its metamorphosis, the offence never sloughed off its original character as an impermissible challenge to the established order, and it was this which precluded its extension to other religions. As Lord Scarman observed in R v Lemon [1979] AC 617, 658, it was “shackled by the chains of history”. The sensibilities of different types of believer were, in this sense, largely irrelevant.
Yet if blasphemy was a crime because it threatened the tranquillity of the kingdom, what the Rushdie riots and book burnings demonstrated par excellence was that such a threat could result as much if not more so from offending religions other than Christianity. One need only compare the reaction to Rushdie with the somewhat muted tut-tutting that followed publication of Kirkup’s poem in “Gay News”. Looked at with all the benefits of hindsight, post-9/11, the disparity appears more alarming still. The continued existence of a law that only applies to the established church and not to other religions seems to modern eyes even less easy to justify and more open to the charge of discrimination than it might have done in the past.
Nevertheless, the law in its current state has been held to comply with the requirements of the Human Rights Convention, both in terms of guaranteeing freedom of speech and in protecting religious freedom: the English court so held in Chaudhury’s case; and the same point had previously been made by the European Commission on Human Rights, when declaring inadmissible the case of Gay News Ltd and Lemon v United Kingdom (Application No 8719/79) 5 EHRR 123; and was later confirmed by the European Court of Human Rights in Wingrove v United Kingdom (1996) 24 EHRR 1. In that case a film-maker, Nigel Wingrove, complained that his short video “Visions of Ecstacy”, supposedly depicting episodes in the life of St Teresa of Avila (including — here we go again — sex with the crucified Christ), had been refused classification and effectively banned on grounds of blasphemy. The court held that the interference with freedom of speech was justified under article 10(2) of the Convention notwithstanding the “anomaly” that the relevant restriction only applied to Christianity.
The need for reform was not in doubt. The difficulty was in deciding what to do about it. If the law were extended, should it include all faiths, including the very minor or obscure, or only monotheistic faiths? Or should it be abolished altogether? (That had been the recommendation of the Law Commission in 1985: see their report “Offences against Religion and Public Worship”, Law Com No 145.) These imponderables were the reasons given by the Home Office minister, John Patten MP, in a letter to Muslim leaders on 4 July 1989, explaining why nothing could be done about the Satanic Verses. He added, pointedly (but also with a hint of smug post-imperial detachment), that: “the Christian faith no longer relies on [the law of blasphemy], preferring to recognise that the strength of [its adherents’] own belief is the best armour against mockers and blasphemers.” In Parliament, it was broadly those on the liberal left who favoured extension while hardline Marxists found themselves in bed with the libertarian right in espousing total abolition. Meanwhile the agonised centre sat on its hands and rather hoped (like Roy Hattersley MP) that the long delayed paperback editionwould quietly be shelved. (Curiously, in a survey of writers, one of those who opposed the paperback edition of The Satanic Verses was none other than James Kirkup. Far from expressing solidarity, he dismissed Rushdie’s novel as “tedious” and “not worthy of publication in the first place”.)
The French writer Albert Camus wrote: “Every blasphemy is, ultimately, a participation in holiness.” If that wasn’t how the book, with its parodies of the Prophet, appeared at the time, Rushdie earned some credit for his subsequent attempts to explain his position, for example in an essay entitled “In Good Faith” published in The Independent in February 1990, and his identification of the “God-shaped hole inside” with which his loss of faith had left him. But to most of the extremists, it was too little, too late. Perhaps they agreed with the view expressed by Rushdie’s parody-Prophet, “Mahound”, at page 374 of the original hardback edition. Speaking to “Salman”, his fictional scribe and amanuensis, who has deliberately mis-transcribed his divinely inspired dictation, he declares: “Your blasphemy, Salman, can’t be forgiven. Did you think I wouldn’t work it out? To set your words against the Words of God...” To literary critics, this may have seemed like a delightful bit of metafictional self-consciousness. But it soon turned out to have been a provocatively ironic piece of self-prophecy.
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