Daily Times

Recently the honourable Lahore high court for the first time in issued a judgment on forced religious conversion. A Christian girl of barely 14 years named Muskan was employed as domestic worker in Sargodha district and later the girl’s parents were not allowed to meet her on the pretext that Muskan had converted from Christianity to Islam. Subsequently her mother Nasira filed a habeas corpus petition for the recovery of her daughter. The honourable judge Justice Tariq Salim Sheikh after thorough research issued a 27pages landmark judgment stating that a child below the 15 years is not sui juris; hence cannot change religion for legal purposes on his or her own volition. Secondly, the child is presumed to have father’s religion until he or she becomes sui juris after the attainment of 15 years of age. The judgment further stated that a child below 15 years could not be employed as a domestic worker keeping in view Punjab Domestic Workers Act 2019.

The judgment further stated that religious conversion was the adoption of a set of beliefs identified with one particular religious denomination to the exclusion of others. Thus “religious conversion” would be described as the abandoning of adherence to one denomination and affiliating with another. This might be from one to another denomination within the same religion, for example, from Baptist to Catholic Christianity or from Shia to Sunni Islam.

The freedom to religion lies at the heart of our democratic enterprise. Article 20 of the Constitution of 1973 sanctifies it as a fundamental right. The Objectives Resolution, which is not only the preamble of the Constitution but also forms part of its substantive provisions by virtue of Article 2A grants every citizen including minorities the right to profess and practice their religion freely and independently without undue interference by any other person belong to different religious denomination.

The judgment authored by justice Tariq Salim Sheikh relied upon a suo moto case SMC No.1 of 2014 (PLD 2014 SC 699) in which the Supreme Court of Pakistan held that the freedom of religion must be construed liberally to include freedom of conscience, thought, expression, belief and faith. Freedom, individual autonomy and rationality characterise liberal democracies and the individual freedoms thus flowing from the freedom of religion must not be curtailed by attributing an interpretation of the right to religious belief and practice exclusively as a community-based freedom.

The freedom to religion is guaranteed to “every citizen” in the country irrespective of his age and whether he is a Muslim or non-Muslim. In Suo Moto Case No.1 of 2014 (PLD 2014 SC 699), supra, the Supreme Court of Pakistan explained:

“Of all the Articles relating to the minorities’ rights, Article 20 is of prime significance. A close reading of this provision would indicate that the freedom to practice religion and manage religious institutions under this provision is multifaceted because:

(a) The right to religious conscience conferred under this Article does not make any distinction between majority and minority or Muslim and Non-Muslim. It is in the nature of an Equal Religious Protection Clause conferred on every citizen, every religious denomination and every sect thereof. This equal religious protection clause is in the same nature as the equal justice under the law and equal protection under the law clauses conferred under Articles 4 and 25. In other words, every absolute equality and there is no distinction among citizens, religious denominations and sects thereof, as far as the right to religious conscience, is concerned.

(b) The right to religious conscience is a fundamental right. It has not been subjected or subordinated to any other provision of the Constitution because it is only subject to law, public order and morality and not to any religious clauses of the Constitution. The very term law, public order and morality has been used in nonreligious terms as the notion of law or public order or morality is not reducible to the Islamic meanings of these terms. Therefore, Article 20 has a certain preeminence in the Constitution being only subject to the general restrictions of law, public order and morality, which three terms cannot be interpreted or used in such a restrictive way as to curtail the basic essence and meaning of the pre-eminent right to religious conscience.

(c) The right to profess and practice is conferred not only on religious communities but also on every citizen. What this means is that every citizen can exercise this right to profess, practice and propagate his religious views even against the prevailing or dominant views of its own religious denomination or sect. In other words, neither the majority religious denominations or sect nor the minority religious denomination or sect can impose its religious will on the citizen. Therefore, not only does it protect religious denominations and sects against each other but protects every citizen against the imposition of religious views by its own fellow co-believers. It needs to be mentioned here that every citizen would necessarily include both males and females (Article 263), which point needs emphasis considering the exclusion or subordination of women in relation to numerous forms of religious practices.”

Some countries, including India, Nepal, Myanmar and Bhutan, have enacted anti-conversion laws. The legislatures in Pakistan and Sri Lanka considered anti-conversion bills but did not pass them. In Pakistan Hindu Council v. Pakistan through Ministry of Law (PLD 2012 SC 679) the Supreme Court of Pakistan observed that in Pakistan it was probably not required because Article 20 of the Constitution guarantees sufficient protection to the minorities against all accesses.

The judgment further stated that children have rights and liberties like adults but they are sometimes restricted because of their vulnerability. The human rights law also focuses on them, particularly in respect of religious freedom. For this reference may usefully be made to the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (1981) and the Convention on the Rights of the Child (1989). So far as religious freedom is concerned, Article 5 of the said Declaration of 1981 recognises (a) the right of the parents or legal guardians to bring up the child in their religion or belief; and (b) right of the child to education in religion or belief, in accordance with the wishes of the parents and the right not to be compelled to receive education against their wishes.

The writer is a human rights activist, lawyer and teacher