Minorities and Blasphemy Laws in Pakistan: A Legal Perspective

Some days ago in Gojra the citizens of Pakistan professing Christian faith were subjected to harassment and seven people were burnt alive on hitherto unproven charges of desecration of the Holy Quran. It is not a unique event of its kind but the minorities have been given raw treatment in this country from the scratch. It is no surprise that often the victims are alleged to have committed blasphemy as in such cases the popular passion can be readily inflamed. The Muslims of the sub-continent demanded a separate country as they feared relentless subjugation and unfair treatment at the hands of the Hindu majority. After the creation of Pakistan, the minorities must have been ensured all the safeguards guaranteeing to them all fundamental liberties including freedom of religion but such aim has been blatantly disregarded. The incidents of violence in the name of religion and denial to minorities of their right to life foster a culture of intolerance.

The most heartrending aspect of the sad saga is that pseudo-clerics sanctify brutal violence against fellow citizens belonging to other faiths than Islam.

In a number of Muslim countries, blasphemy is dealt under state law instead of Shariah and only minor punishments are awarded even if the charge is proved. Take the example of Indonesia, the most populous Muslim country. Article 156 (a) of Indonesia’s Criminal Code forbids ‘anyone from deliberately, in public, expressing feelings of hostility, hatred or contempt against religions with the purpose of preventing others from adhering to any religion’ and forbids ‘anyone from disgracing a religion’. The maximum penalty for violating Article 156 (a) is five years’ imprisonment.
In Pakistan, the blasphemy law dates back to original 1860 Indian Penal Code in which Articles 295 and 298 inserted keeping in view the religious sensitivities of the inhabitants of the sub-continent. But then blasphemy was not an offense punishable with death.

Besides the said sections shared universal application they did not refer exclusively to certain faith. These provisions also required malicious intention integral to the concerned offense. In 1927 the law was amended to incorporate clause 295-A which reads as “Whoever with deliberate intention of outraging the religious feelings of any class of citizens….by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class…………shall be punished with imprisonment for a term which may extend to two years or with fine or both”. Later after independence, the term of punishment has been increased up to ten years. In the decade of 1980s, Zia-ul-Haq, in his pursuit of so-called Islamisation of laws added new provisions in the form of 195-B, 295-C, 298-A and blasphemy under 295-C became an offence punishable with death. It is an open secret that the reports of lodging of false blasphemy cases have increased and the persons abusing the process of law are not brought to book. The wording of the blasphemy law s. 295-C is vague and ambiguous enough to allow religious zealots to go ahead with their extremist agenda. According to section 295-C , any person who , ‘ by words either spoken or written, or by visible representation, innuendo, or insinuation, directly or indirectly defiles the name of Prophet Muhammad (PBUH) is liable to be punished with the death sentence or imprisonment’. A criminal offense requires ‘ill-will’ or ‘mens rea’ (malicious intention)as a necessary ingredient but the requirement of this essential element has been disregarded in the text of provision (s. 295-C).

In practical cases, it is not uncommon for the instigators to be motivated by religious bigotry, personal prejudices, selfish gain or professional rivalry. The human rights reports suggest that prosecutions often rely on the unsubstantiated oral testimony of the complainants where statements made by the accused are twisted out of context. The offense has been made cognizable and non-bailable which adds to the misfortunes of innocent victims. Ill-treatment and torture in police custody are commonplace. The judicial proceedings are protracted and the judges presiding proceedings of the case are given death threats and intimidated by local clergies. In October 1997, Justice Arif Iqbal Bhatti was murdered after he acquitted Rehmat and Salamat Masih in a blasphemy case.

The existence of blasphemy law has been considered by narrow-minded Muslim fanatics as a license to take the law in their hands. In October 1990 the Federal Shari at Court ruled that ‘penalty for contempt of the Holy Prophet (PBUH) …is death and nothing else’. The ruling also noted ‘no one after the Holy Prophet (PBUH) …exercised or was authorized the right to reprieve and pardon’. The FSC also directed the court to remove the punishment of ‘life imprisonment’ for offense of blasphemy under s.295-C. The bill in this respect was passed by the Senate but could not be approved by the National Assembly. In 1993 a bill was introduced in parliament to extend the scope of 295-C by including the words ‘the names of Prophet Muhammad’s (PBUH) companions and family members’ but no legislative enactment could be effected in this regard.

In 2002, Akbar S Ahmed, a Muslim intellectual, wrote an article titled ‘Pakistan’s Blasphemy Law: Words Fail Me’. He observed “Over the years I began to see the blasphemy law used more and more for cases of political vendetta, land disputes or political rivalry, law became….a powerful tool to intimate someone, Muslim or non-Muslim. The target of this law (blasphemy) has largely been minorities such as members of the Ahmadi sect who consider themselves Muslims and Christians”. In 1994 Maulana Kausar Niazi, the then Chairman of Council of Islamic Ideology, remarked “The law (blasphemy) needs modification to ensure that it is not abused by unscrupulous elements for their selfish ends….The procedure for police registration of a case, the judicial level at which it should be considered and the suitable criteria for admission of witnesses have all to be looked at thoroughly”. But so far no serious effort to reform pernicious blasphemy laws has been embarked upon.

In the present state, blasphemy laws in Pakistan can easily be misused and the practical instances testify this horrible fact. The repeated UN resolutions require the member countries to reduce the awarding of death penalty to the international crimes but the provision of capital punishment for blasphemy without strictest possible safeguards is inimical to minorities’ fundamental rights. The democratic evolution of the country requires a level playing field for all groups inhabiting the land irrespective of differences of caste, colour, creed and religion.

Likewise the Hadood Ordinances 1979 have increased the difficulties for hapless women often subjected to domestic violence and being unaware of their rights. Zia-ul-Haq’s reign will go down in history as the worst period in history of Pakistan. If the PPP government wants to prove their credentials of a liberal party, it must take initiative to repeal blasphemy laws and Hadood Ordinances as their existence on statute book hampers the efforts to ensure fundamental freedoms to all minority communities and other marginalized segments of the population.