By Sulema Jahangir
While the Supreme Court decision on Aasia Bibi was a courageous step on the part of the judiciary which had hitherto delayed making any decision, its jurisprudential value is sadly weak.
On January 29, 2019 the Supreme Court affirmed the acquittal of Aasia Bibi. She had been sentenced to death on a false charge of blasphemy following a row over a cup of water. The Supreme Court acquitted her in early November 2018 but following mass protests by right wing groups the government ceded to demands that she would not be let free until a review petition was filed by the complainant. And thus an innocent woman continued her ninth year in prison because certain pressure groups felt it was more important that she should be punished on a false charge of blasphemy than acquitted through a free and fair trial.
Globally the decision was viewed as a progressive step in a country otherwise awash with mullahs baying for the blood of religious minorities. The blasphemy laws were introduced by General Zia in 1986 when he ushered in rapid Islamisation to appease the mullahs while quashing existing political parties. He promulgated five provisions relating to blasphemy and other offences against religion, and made various changes to the Pakistan Penal Code and the Law of Evidence to the detriment of non-Muslims and women.
Over sixty years of state appeasement and the patronage of the military and the judiciary have emboldened Pakistan’s religious groups. While their electoral support has not increased the religious right wing have a clear strategy to infiltrate every sphere of civil life and spread fear through the threat of religious sanctions.
For example in a large proportion of blasphemy cases, the complainants are religious scholars, leaders of mosques or members of religious parties. One man, an executive member of Anjuman-e-Khatam-e-Nabuwat, has been the complainant in six cases. In the Aasia Bibi case, again, the complaint is filed by an Imam from the local mosque. As is noted in the judgment, since 1990, 62 people have been murdered, Christian communities have been set afire and various riots have taken place as a result of blasphemy allegations. While there is no accurate data on the number of blasphemy-related cases registered in Pakistan since 1986, data provided by human rights organisations show that around 1500 people have been charged under blasphemy laws from which nearly half are non-Muslims, even though they are only 3 percent of the population. Prior to 1986, only 14 cases pertaining to blasphemy were reported.
While the Supreme Court decision was a courageous step on the part of the judiciary which had hitherto delayed making any decision, its jurisprudential value is sadly weak. The judgment does not only deal with whether Aasia Bibi was guilty or not. It went further. The main author, Hon Justice Mian Saqib Nisar, spent a large part of the judgment in pointing out the utility of blasphemy laws in protecting the sentiments of Muslims. When reading the judgment, there is an inescapable feeling that in order to appease the bigots, the judgment justifies the current laws on blasphemy and also couches the law within the wrong historical context.
The Aasia Bibi judgment makes an attempt to provide some historical context to the origin of blasphemy laws. In 1927, a Hindu publisher Raj Pal, published a pamphlet offending the Muslim community. He was initially convicted under section 153-A of the Indian Penal Code for causing “enmity” between “different [religious] groups” but was later acquitted by the High Court. Following this decision, there was an outbreak of violence. In order to pacify the protesters, the British government enacted section 295-A of the Indian Penal Code. The law punished “deliberate and malicious acts” to “insult” religious beliefs. The object declared that the “act is the outcome of the present day Hindu Muslim tension.” The British government enacted legislation as a way to overcome communal tensions but restricted the law to be invoked by the administration alone to prevent its misuse.
These pacifying legislative measures by the British did not put an end to the anger of those who vowed to take revenge from Raj Pal. Two attempts were made on his life. Finally in 1929, a young man, Ilam Din, stabbed Raj Pal to death. Ilam Din was convicted and awarded death penalty. Muslims of the subcontinent are often urged by Muslim clerics to follow Ghazi Ilam Din Shaheed (the martyr) by killing those who say something offensive about the Holy Prophet (PBUH).
At the time of the creation of Pakistan almost 23 percent of Pakistan’s population was non-Muslim. Today, the proportion of non-Muslims has declined to approximately 3 percent.
The Aasia Bibi judgment contains a glorifying reference to Ilam Din as “Ghazi” and “Shaheed” which is worrying in the current climate. What comes to mind is the recent lynching to death of Mashal Khan by college students, the murder of Governor Taseer by his own bodyguard, the murder of pregnant Shama and Shahzad Masih who were burnt alive and the TLP calling upon its followers to claim martyrdom by shooting down the judges who acquitted Aasia Bibi.
The most urgent need at this time is to quell the atmosphere of impunity and cruelty against those who are already marginalised. In describing the origin of section 295C, the main judgment states:
“The Muslim communities that exist around the globe have always acted against any such act of contempt and have openly reacted to such, followed by serious repercussions. That is why anything which in any way attacks any aspect of his sacred life, infuriates Muslims to an intolerable limit, resulting in extremely serious law and order situation, with grievous, disastrous consequences. That is why Section 295-C had to be enacted to bring such contemners before the Court of Law.”
The judgment reasons that Section 295-C was promulgated so that contemnors are brought before a court of law and so arguably not lynched to death. Clearly this is not the case. Prior to 1986 there were only a handful of reported cases relating to blasphemy and no such incidents of mass lynching, murder and rioting as we see every few months now. The law has become an instrument of persecution not protection.
While the judgment fairly criticises those who attempt to misuse the law, the fact that the law itself is a precursor to the strategy of fear is ignored. The note by Justice Khosa is hard on those who misuse the law but again is quiet about the law itself — it only describes blasphemy as a “serious offence”.
The idea that Pakistan was created to allow a religious minority of India greater freedoms is ironic given the treatment meted out to religious minorities since its creation. The persecution and migration of religious minorities not only reflects Pakistan as an intolerant society but also diminishes the vibrancy and progression of a society that comes with religious and ethnic diversity. The atmosphere of fear stifles any debate. Eventually, one can hope that the political leadership of Pakistan also musters the courage and honesty to address the atmosphere of cruelty and dread that religious minorities have to live in.
