Daily Times

Heading a seven judges bench of Indian Supreme Court, Justice Thakur said that seeking votes in the name of religion, caste, creed or language is illegal under Indian Constitution and elections in India is a secular exercise. The bench further observed that secular ethos of the Constitution had to be maintained by keeping elections a secular exercise. Some of lines of the judgement read, and I quote “The Relationship man and god is an individual choice. The state is forbidden to have allegiance to such an activity”. Out of seven three judges of the apex court dissented to the majority view and observed that views of their fellows four judges amounted to ‘judicial redrafting of the law’.

The judgment said that religion should not be made part of the election campaign at all and seeking votes in the name of religion is prohibited under Indian Constitution and elections laws. Moreover, the judgment went on to observe that religion and state must not be mixed as mixing state and the religion is not permissible under the supreme document of India. It appears that this sparkling judgment will for sure have decisive role in the upcoming polls in Utar Pardesh which are months away from now, where the construction of a Ram Temple in Ayodhya and caste-based mobilisation are top poll planks.

To me it appears that the recent judgement of the Indian Supreme Court must be applauded and it must be widespread within the four corners of Pakistani society and among legal fraternity including the supreme judicial officers. The Indian Supreme Court in recent times on numerous occasion have had laid down interesting and though provoking judgments and the current judgement which has been laid down on Monday is one of those.

The question of secularism in Pakistan is an important one within Pakistan and outside the country for the human rights activists and minorities residing in Pakistan. Secularism is the principle of the separation of government institutions and persons mandated to represent the state from religious institutions and religious dignitaries. One manifestation of secularism is asserting the right to be free from religious rule and teachings or, in a state declared to be neutral on matters of belief, from the imposition by government of religion or religious practices upon its people.

The question which needs to be asked is can us anticipate such sort of thought provoking judgment or debate from our apex court or other political parties?

I say plainly No, the apex court of Pakistan have had always been indulged into political crisis by polity by adolescent polity of Pakistan and instead of interpreting the law or specifically dealing with the legal and tough constitutional matters-the apex court of Pakistan had worked as an arbitrator between the non state actors and polity for many years. The debate relating to secularism within legal fraternity and at the Supreme Court only once had set off but with no results. Not long ago, 17 judges bench of the Supreme Court in 2015 headed by the then Chief Justice of Pakistan considered a question pertaining to secularism- while hearing petitions challenging the procedure for appointment of superior court judges under the 18th Amendment and establishment of military courts under the 21st Amendment to try hardened terrorists. The then CJ of Pakistan raised a question “What will be the mode if a popular demand but not a revolution asks for changing the basic structure of the Constitution to secularism from Islam,” Chief Justice Nasir-ul-Mulk wondered and asked could it be done by the present parliament or a constituent assembly would be needed”. Some of the judges of that learned bench comprising of leading jurists of Pakistan observed that Article 2 of the Constitution of Pakistan reads that the Islam is the state religion and changing it to secularism will mean that amending the basic structure of the Constitution of Pakistan. The basic structure of the Constitution of Pakistan cannot be amended and religion Islam is a part of the basic structure which cannot be amended or changed to secularism even by the Parliament of Pakistan. The author has noted that if the Parliament intends to amend or bring alteration into the basic structure of the Constitution of Pakistan the Supreme Court of Pakistan will certainly strike it down such a constitutional amendment. As, the basic structure theory in Pakistan has consistently refused to follow the position taken by the Indian Supreme Court on basic structure.

The basic structure proposed or made by the Parliament itself cannot alter or amend it. If the Parliament cannot alter or amend any laws or basic structure made by it how can Parliament be considered as supreme? This question will be answered in coming years in Pakistan. The doctrine of supremacy of Parliament is yet to be considered in Pakistan comprehensively by the law making officers and judiciary itself too.

The judgment by the Indian Supreme Court undoubtedly without any shadow of doubt is remarkable and praiseworthy. The judgement of the apex court shown that Indian society even the political elite are vibrant and it has capacity to digest such a powerful view of the court. This is why Indian democracy is world’s biggest which is evolving day by day.

The writer is a lawyer based in Lahore and can be reached at greenlaw123@hotmail.com