OVER A COFFEE : Blasphemy law and fundamental rights — I — Dr Haider Shah
All over the world, absence of discrimination on the basis of religious faith is one of the most important fundamental rights, which is also conspicuous in the Pakistani constitution
When a tree in a jungle is ablaze, no bird in the nearby trees sleeps complacently. But we have developed an uncanny ability of underestimating the nature of an impending trouble, be it a natural calamity or a storm created by our own national folly. Our inaction over blasphemy laws is one such example. In this two-part analysis, I intend to make a case for repeal of those provisions in the Pakistan Penal Code, which were inserted by Ziaul Haq by establishing that they contravene the fundamental rights guaranteed by our constitution.
The Constitution of Pakistan, vide its Article 8, declares all laws and usages in Pakistan void if they violate the fundamental rights spelt out by Articles 9 to 28 of the constitution. Comparing the language and tenor of the fundamental rights enumerated in the constitution with those found in democracies such as the US, Canada, India and the European Convention on Human Rights, it is not difficult to see that our fundamental rights derive their inspiration from the modern humanist movement. All over the world, absence of discrimination on the basis of religious faith is one of the most important fundamental rights, which is also conspicuous in the Pakistani constitution. For instance, Article 10A ensures the right to a fair trial and due process of law. Article 14 guarantees inviolability of the dignity of man and Article 19 guarantees freedom of speech. Articles 20 to 22 guarantee all religious minorities of Pakistan equal rights of professing religion, running religious institutions and no discrimination in taxation matters. The last mentioned fundamental right is important in its symbolic value as it does not honour the principle behind jazya — a long-standing usage among Muslim rulers of the past, which historically legitimised higher taxation of non-Muslims. The upshot of specific fundamental rights is in Article 25 where all citizens have been declared equal before the law and entitled to equal protection of the law. It is therefore not difficult to conclude that our fundamental rights are based on the principal notion of equality of all citizens and even a hint of discrimination in valuing the life, liberty and dignity of any citizen would make any law, custom or usage void as per our constitution.
Now let us turn to our Penal Code. Long before Pakistan was created, in the times of the Muslim rulers of India, Shariah formed the basis of the then legal framework. As the imperialism of the Arabs, Afghans and Turks gave way to European imperialism in the 16th and 17th centuries, the British emerged as the new dominant force in India. Clive was not wrong in claiming that with just 2,000 Europeans the whole of India could be subdued. After conquering a new territory and its people, every imperialist tries to develop firm roots by introducing its socio-legal structure to the area. English law, therefore, took centre-stage as the British gradually enlarged their scope from trading to revenue collection, administration and judicial functions. The penal codes today in force in India, Pakistan and Bangladesh have the common origin of the Indian Penal Code of 1860, a masterpiece of the Law Commission headed by Thomas Macaulay. Upon a plain reading of the original code, one can see a very rationalist categorisation of various crimes wherein punishments clearly correspond with the gravity of the harm done by an offence to the body, property or sensitivities of an individual or to the peace and tranquillity of society in general. In India, various religious groups have been living for thousands of years and religious bigotry has often remained a prominent source of communal violence in this part of the world. The penal code therefore contained one chapter, i.e. chapter 15, on ‘Offences relating to religion’. The chapter recognised five types of mischief in this category. First, defiling places of worship; second, hurting the feelings of a religious group by wilful acts of insult; third, disturbing religious assembly; fourth, trespassing on burial places and fifth, uttering words to hurt the religious sensitivities of others. In the common classes of both Hindus and Muslims, it was not uncommon to see that Muslims would slaughter cows in public and Hindus play loud music in front of mosques to hurt each other’s feelings. The chapter on religion-related offences therefore recognised the need for maintaining peace and was applicable to all religious communities without any discrimination.
After the partition of India in 1947, both India and Pakistan adopted the same code as one of the primary pillars of their legal system. The chapter on religion-related offences was in line with the fundamental rights enshrined in the constitution of both countries. Sections 295 to 298 of the Penal Codes made no distinction on the basis of religious faith and applied equally to all religious communities. They, therefore, reflected the spirit of non-discrimination guaranteed by the constitutions of the two countries. When Bangladesh came into being it also adopted the penal code and retained the same non-discriminatory provisions about religion-related offences. In the case of Pakistan, the period of Ziaul Haq is the source of many troubles that we encounter today. Not only was society brutally indoctrinated with jihadi propaganda, the laws of the land were also disfigured. Insertions were made in chapter 15 of the penal code, which had categorised offences relating to religion. The non-discriminatory nature of the chapter was turned upside down by the new insertions. The sensitivities of the dominant religious community were valued much more than those of all other minorities. The rational scheme of one to three years of imprisonment also got lost by introduction of harsh punishments like death and life imprisonment.
(To be continued)
The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at firstname.lastname@example.org