By Yasser Latif Hamdani
September 10, 2012
Khalid Jadoon Chishti’s action is, therefore, not an aberration but the logical consequence of a law that is neither constitutional nor Islamic
The events of the last week may have surprised you. Seeing mullahs falling over one another to declare that Rimsha Masih, the 14-year-old Pakistani Christian girl, was innocent of the charge of blasphemy was quite a spectacle in a country no stranger to spectacles. It is not out of a sudden love for justice or humanity that the mullahs have adopted this stance. Khalid Jadoon Chishti’s attempt to drive out the Christians from their locality is just one case where the real motivations have been exposed entirely due to one conscientious muezzin who had the courage and humanity to speak out against this outrage.
A year and a half after the tragic assassination of Salmaan Taseer, it has become obvious to good Muslims of this country that in its present form clause 295-C militates not just against fundamental human rights but also against Islam. They now realise that the worst kind of blasphemy is misusing the name of the Holy Prophet (PBUH) to persecute a minority community when all Muslims agree that he (PBUH) spoke of religious freedom long before it came to be universally accepted as a key principle of liberty.
The mullahs now fear that with enough public opinion having turned against this, a moral outcry from everyday good Muslims of this country will sweep them away. Therefore, they are now rushing in to hijack the debate. The stance that Rimsha is begunah (innocent) overlooks the obvious question of whether a girl of 14 years with mental incapacity can even be held liable for her actions, blasphemous or not. The basic principle of criminal law is mens rea of the intent to commit the crime. It is to be presumed even if it does not say so specifically in the particular provision of the statute, i.e. 295-C. That however, is not the end of the story.
It is often stated that the British introduced the blasphemy law in India. This is only partly true. The law that the British made was a much more humane and universal law, which sought to maintain communal peace in a fractured multicultural society that Punjab was in those days. The issue starts from Raj Pal v. Emperor from 1925, reported as A. I. R. 1926 Lahore 195, which dismissed the criminal revision application filed by the crown against the order of the magistrate. Raj Pal had published the infamous pamphlet that was a scurrilous attack on the life of the Holy Prophet (PBUH). He was tried under Section 153-A of the Indian Penal Code, which made the publication of material with “a conscious intention of promoting, causing, or exciting enmity and hatred” against another community a crime. Mr Pal was acquitted by the magistrate and the crown filed a criminal revision keeping in view the sensibilities of the Muslims of Punjab. In particular, it was Sir Zafarullah Khan who insisted on going in criminal revision and prosecuting Raj Pal for his scurrilous attack. The irony of course is that Zafarullah Khan — the main legal champion of the Muslim cause against Raj Pal in 1925 — today is not even considered Muslim by the state that he helped found.
The defeat in the High Court caused a lot of anguish to Muslims and the Crown sought to rectify the issue by introducing 295-A in the Indian Penal Code through the Central Legislative Assembly of India. At the Central Legislative Assembly, the issue was debated in the fall session of 1927. One of the members of the joint select committee looking over the issue was Mohammad Ali Jinnah, who sounded this ominous warning in these words on September 7, 1927: “We must also secure this very important and fundamental principle that those who are engaged in historical works, those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticisms of a religion shall be protected.” True to his legal form, Jinnah did not want the law to become a tool in the hands of the religious orthodoxy to prosecute at will people on the basis of religion and flimsy reasoning. He wanted academics as well as other bona fide critics of any religion to be protected under the law. This is basic common sense for any society to function rationally.
The result of the laborious work put in by the legislators of that Assembly was that the 295-A was a non-denominational, non-communal law acceptable more or less to all concerned. It read, in its original form, “Deliberate and malicious acts, intended to outrage religious feelings or any class by insulting its religion or religious beliefs. Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of His Majesty’s Subjects, certain words, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” It thereby secured the basic principle of allowing bona fide criticisms of religion to be tolerated and to give academics the freedom they need by criminalising only malicious intent, which was also deliberate.
Fast forward to 1986 when the present 295-C was introduced by Liaquat Baloch of the Jamaat-e-Islami in the National Assembly of Pakistan and passed soon thereafter. The law does not refer to “malicious intention” in the present form. In other words, at least the legislators thought it fit to make even non-malicious unintentional cases of blasphemy punishable (though it must be added that the courts have taken mental incapacity as one of the mitigating factors). It would not be out of place to quote the well-known Hadith that says, “All actions are to be judged by intentions.” The legislators did not stop there of course but also made any such act punishable by death. The result was that this law became a power tool of revenge for settling personal scores and for driving out minorities by threats and incitement.
Khalid Jadoon Chishti’s action is, therefore, not an aberration but the logical consequence of a law that is neither constitutional nor Islamic.
Yasser Latif Hamdani is a practising lawyer.