Daily Times

Pakistanis when questioned internationally about the blasphemy law in the country – the only blasphemy law in the world that prescribes death penalty for spoken or written word- often come up with the utterly misleading defence that this is a colonial era law. Blame thus is laid at the door of the British Raj. Since everyone loves to hate the British, that is usually the end of discussion. The only problem is that this claim is absolutely untrue.

The two laws that were added to the then Indian Penal Code 1860 (now the Pakistan Penal Code 1860) were 153-A and 295-A. The former punishes anyone who “by words, either spoken or written, or by signs, or by visible representations or otherwise, promotes or incites, or attempts to promote or incite, on grounds of religion, race, place of both, residence. language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”. The latter punishes “whoever, with deliberate and malicious intention of outraging the ‘religious feelings of any class of the citizens…, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class.” The latter law was passed in 1927 in response to Hindu-Muslim pamphlet wars in Punjab. It was broadly the Muslim public opinion that asked for 295-A. The legislators in the Indian Central Legislative Assembly designed a law that would balance the needs of keeping peace in a divided society with that of freedom of speech. Jinnah who was a member of the select committee in 1927 made this comment “I thoroughly endorse the principle, that while this measure should aim at those undesirable persons who indulge in wanton vilification or attacks upon religion of any particular class or upon the founder and prophets of a religion, we must also secure this very important and fundamental principle that those who are engaged in the ascertainment of truth and those who are engaged in bona fide and honest criticism of a religion shall be protected.” The law in 1927 prescribed a punishment of 2 years and was necessarily based in deliberate and malicious intent. This was to be the end of it.

From 1947 to 1986 this was the only law that criminalized offensive speech and the total number of cases registered under it was less than a dozen. In 1985-1986, MNA Apa Nisar Fatima, mother to Ahsan Iqbal of PMLN and someone the military dictator considered a sister, was reportedly offended by some people in Lahore who had allegedly made derogatory comments about the Prophet (PBUH) and Islam. 295-A was considered insufficient and then came in 295-B and 295-C. It was passed with a thumping majority in the rubber stamp parliament elected through the sham elections of 1985. How this can be laid at the doorstep of the British is beyond my understanding. 295-B and 295-C are specific protections for the Islamic faith. 295-C reads “Whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to fine.” It is a strict liability offence and there is no requirement for malicious intent. It is broad and can mean anything and everything. The legal position is that there cannot be any critique of the basic tenets of Islam in Pakistan. Whether we like it or not that is the legal position since 1986. It is our own people who enacted this law just as they enacted the eighth constitutional amendment. Much of the eighth constitutional amendment was done away with the eighteenth amendment. If the legislators of this country felt strongly enough they would have amended the law as well but obviously this is a law that the people want. So why blame the British for it?

We have been independent since 1947. If in 2019 we are still going to blame the Raj for our problems, then there is something truly wrong with our sense of independence

This is not to say that idea of a blasphemy law did not exist in the common law tradition. The ancient Blasphemy Libel was however essentially a dead letter law in the United Kingdom by 1949 when it was described as such Lord Denning. In 2008 it was abolished through the Criminal Justice and Immigration Act 2008 in England and Wales. While the law remains to some extent valid in Northern Ireland and Scotland but it is important to note that there is no conception of capital punishment for it. It is in fact as dead as a law can be even in those jurisdictions. At most it can fall under breach of peace and that too has not been tested over many decades now.

The larger point here is our penchant for blaming the British for everything and this extends throughout the subcontinent and beyond that. Section 377 that criminalises homosexual acts for example is another example. The Indian Supreme Court struck down that law as being ultra vires the constitutional fundamental rights justifiably but it did not stop them from taking a potshot at the British when they called it essentially a colonial relic. It is true that the British codified the law, but that was only because law before the British Raj largely was not codified. From Arthshastra to Fatawa Alamgiri, all legal treatises in pre-modern Indian subcontinent had criminalized homosexuality. The British just replaced them with a law of their own. Needless to say homosexuality is not a crime anymore in Great Britain since the Sexual Offences Act of 1967. We have been independent since 1947. If in 2019 we are still going to blame the Raj for our problems, then there is something truly wrong with our sense of independence. As free and independent men and women we must take responsibility for whatever legislation good or bad that exists on our statute books.

The writer is is an Advocate of the High Courts of Pakistan