February Issue 2011

It is imperative now, more than ever, to trace the history of the Blasphemy Law (295-C) — in fact, the history of Section 295 and its three sub-sections. Since their introduction and amendment, sections 295-B and 295-C have been misused more than any other law in the chapter on “Offences Related to Religion” in the Pakistan Penal Code.

The origin of Section 295 is found in the 1860 Penal Code of India, a construct of the British rulers of the time. Section 295 stated:

“Injuring or defiling place of worship, with intent to insult the religion of any class: Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

This was an all-encompassing law in that it applied to people of all religions and attempted to safeguard all of them equally. In 1927, through the Criminal Law (Amendment) Act of 1927, Section 295-A was introduced. It stated:

“Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs: Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of [citizens of India], by words, either spoken or written, or by signs or by visible representations or otherwise 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 three years, or with fine, or with both.”

This happened in the wake of the (recently oft-quoted) Raj Pal-Ilam Din incident. Raj Pal’s book contained content about the Prophet (PBUH), which deliberately inflamed the Muslims of the time. Since no law existed to deal with the situation, no action could be taken against Raj Pal. However, Ilam Din — who today is revered as‘Ghazi’ Ilam Din by those who also hail Mumtaz Qadri — killed Raj Pal.

At the time of Partition, the above-mentioned sections were carried over and became a part of the Pakistan Penal Code. When military dictator General Zia-ul-Haq imposed martial law, he introduced several amendments to existing laws and also went on to introduce new laws over the course of his 10-year reign as ruler of the country, many of which exist to this date. Among these are Sections 298-A and 298-B which he introduced in 1984, targeting the Ahmadi community.

When the 1949 Objectives Resolution, which previously existed as a preamble to the Constitution of Pakistan, was incorporated into the constitution as Article 2A through Zia’s presidential order, subsequent amendments — and additions — to laws were justified on the basis that certain laws needed to be brought in conformity with Islamic injunctions.

In 1982, Sections 295-B and 295-C were introduced, both of which carried life imprisonment as punishment. This was done through the Majlis-e-Shura which comprised of not elected but chosen representatives. Four years later, the death penalty was added to Section 295-C through the Criminal Law (Amendment) Act, 111 of 1986. Section 295-B today states:

“Defiling, etc, of copy of Holy Quran: Whoever wilfully defiles, damages or desecrates a copy of the Holy Quran or of an extract therefrom or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.”

Section 295-C reads:

“Use of derogatory remarks, etc., in respect of the Holy Prophet: 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.”

Zia’s amendment to the constitution in the form of Article 203-D accorded the Federal Shariat Court (FSC) powers to strike down or amend any law that is not “in conformity with the injunctions of Islam.” This laid the foundation for what followed in the ’90s, during the rule of a ‘democratic’ government, that of Nawaz Sharif.

In 1990, a petition was filed in the FSC declaring that the punishment prescribed under 295-C was not in keeping with the Quran and Sunnah and that not life imprisonment but only the death penalty could be applied in this case. The following is the text of the FSC’s October 30, 1990 judgment:

“In view of the above discussion we are of the view that the alternate punishment of life imprisonment as provided in Section 295-C PPC is repugnant to the injunctions of Islam as given in the Holy Quran and Sunnah and therefore, the said words be deleted therefrom…

“A copy of this Order shall be sent to the President of Pakistan under Article 203-D (3) of the Constitution to take steps to amend the law so as to bring the same in conformity with the injunctions of Islam. In case, this is not done by April 30, 1991, the words ‘or imprisonment for life’ in Section 295-C, PPC shall cease to have effect on that date. Therefore, now there is only one punishment provided in Section 295-C and that is the death penalty.”

The government could have filed an appeal, but it didn’t, after which the death penalty became mandatory. Subsequently, the Enforcement of Shariah Act 1991 made the Islamic Shariah the supreme law of the land. And, in the same year, through the Criminal Law (Third Amendment) Ordinance XXI changes were made to Section 295-A. The three-year jail sentence was changed to 10 years.

A military dictator, mainly through presidential orders or through an assembly of selected members, introduced and amended the above-mentioned laws and many others, and also the constitution. These changes were not brought about through any democratic process. What then is their legal standing and shouldn’t they, at the very least, be reviewed?