Minorities as Citizens – Journal

“ARTICLE 260 (3) of the Constitution declares Ahmedis/Qadianis as non-Muslims, it does not deny them as citizens of Pakistan nor deprive them of their right to fundamental rights guaranteed by the Constitution.” — Judge Mansoor Ali Shah

What is preventing Pakistan from becoming a modern, constitutional and prosperous Islamic state? Many things come to mind, for example, the lack of real democracy and socio-economic equality, illiteracy, inconsistent economic growth, etc. But without a critical factor, there can be no modernity or national success. It is inner peace, and the greatest danger to inner peace in any religious society is religiously inspired extremist violence. Passionate religious differences are normal, but once converted into violence, they destroy societies.

Justice Mansoor Ali Shah, along with Justice Amin-ud-Din Khan, in a recent Supreme Court judgment in the Tahir Naqash case, address this fundamental question by asking whether minorities or non-Muslims, such as Ahmedis/Qadianis, are citizens and if, as citizens, they are entitled to basic rights, because only if we also respect these basic rights for non-Muslims can “we, the people of Pakistan, be able to prosper and attain the rightful and honored place among the nations of the world,” says Justice Shah. It is not a question of history or the past but a question of the future: do we become like Modi’s Hindu India which treats its minorities, notably the Muslims, as second-class citizens without giving them the rights fundamentals, or like the modern constitutional Islamic State of Jinnah? , who treats its minorities or non-Muslims as citizens with basic rights?

Facts: The Tahir Naqash case involved Ahmedis/Qadianis who were charged with offenses under Article 298-B (“Misuse of epithets, descriptions and titles reserved for certain personages or holy places” ) and under Section 298-C (“Persons of the Qadiani group calling themselves Muslims or preaching or propagating their faith”) of the Pakistan Penal Code (PPC). The judgment of the Supreme Court does not acquit them of the aforementioned offenses and authorizes the trial of these persons for these offenses. The only and limited issue involved in this case was whether they could be further charged with the offenses under Section 295-B (“Desecration of the Holy Quran”) and Section 295-C (“Use disparaging remarks about the Holy Prophet [PBUH]’). In other words, a limited issue of criminal law and fundamental rights of citizens tried for offenses related to their religious practices.

“Sectarian behavior towards our minorities paints the whole nation in a bad color”.

What the Judgment Does Not Dispute: The judgment in the Tahir Naqash case accepts certain established principles that underlie our constitutional and religious jurisprudence. First, under Article 260(3) of the Constitution, the Ahmedis/Qadianis have been declared non-Muslims by the representatives of the Pakistani people. Secondly, the Supreme Court of Pakistan in Zaheeruddin Case (1993) declared the Anti-Islamic Activities of Qadiani Group, Lahori Group and Ahmedis (Prohibition and Punishment) Ordinance 1984 as valid and constitutional. Third, the constitutional validity of Articles 295-B, 295-C, 298-B and 298-C CPC was not in question. The basic question at issue in this case was different: does the Constitution or law prohibit Ahmedis/Qadianis from professing and practicing their religion in their place of worship as non-Muslims and the relationship between their right to worship and the fundamental rights.

Minorities and basic rights: A group of individuals declared as minorities or non-Muslims and whose religious rights have been restricted to some extent by the CPP does not necessarily mean that they cease to be citizens of Pakistan. Thus, Judge Shah said: “All citizens of Pakistan, whether Muslim or non-Muslim, are guaranteed fundamental rights under the Constitution, including equal status, freedom of thought, , creed, faith, worship subject to law and public morals”. In other words, they are entitled to the fundamental right to life under Article 9, to the fundamental right to practice their religion under Article 20, to the fundamental right to religious education guarantees under section 22, the fundamental right to equality under section 25 and the right to enjoy the protection of the law and to be treated according to law under section 4 .

Judge Mansoor Ali Shah particularly emphasizes the fundamental right to dignity under Article 14, which “encapsulates the notion that every person has inherent equal worth”. In order to lead us towards the path of a modern constitutional Islamic State, Judge Shah declares that “to deprive a non-Muslim (minority) of our country of his religious convictions, to prevent him from professing and practicing his religion in the four walls of his place of worship goes against our democratic Constitution and is contrary to the spirit and character of our Islamic republic…Sectarian behavior towards our minorities paints the whole nation in a bad color, labeling us as intolerant, dogmatic and rigid”.

Moreover, this judgment reaffirms the fundamental principles of criminal jurisprudence, in particular when it comes to accusing individuals of offenses as serious as articles 295-B and 295-C of the CCP, because such simple allegations themselves have serious physical and societal consequences for the accused. First, the judgment declares that individuals cannot be accused of “desecration of the Holy Quran” (Section 295-B, PPC) by mere reading of it by non-Muslims, without alleging and showing “actus reus”, which would result in a manifest act of defilement. It further states that individuals cannot be accused of “using derogatory remarks about the Holy Prophet” (article 295-C, PPC) by simply having his name inside their place of worship, without to allege and show the “actus reus”, which would then result in a manifest act of derogation.

Unlike the Supreme Court of India, which has at worst championed a Hindutva India or at best remained silent in the face of Hindutva repression, the judges of the superior courts of Pakistan, like Judge Mansoor Ali Shah, are on the front line. to protect the fundamental rights of minorities and non-Muslim Pakistani citizens. Therefore, in the mediocre and intolerant times in which we live, the Tahir Naqash judgment of Judge Mansoor Ali Shah is not only courageous, but also creative, humanistic and innovative.

The writer is a lawyer.

Posted in Dawn, April 1, 2022