Legitimate discrimination

Basil Nabi Malik May 09, 2010

In my preceding article, I talked about the precariousness of defining the terms ‘Muslim’ and ‘non-Muslim’ in the Constitution of Pakistan. This article, in continuation, attempts to follow the unfortunate consequences of doing exactly that.

In addition to Article 260 discussed in the previous article, the constitution also contains Article 20 which guarantees every citizen the “right to profess, practice, and propagate his religion”, whereas it’s sub-article (b) allows every religious denomination and every sect “the right to establish, maintain and manage its religious institutions”. Both are subject to “law, public order and morality”. Looking at the same, one would think that any discrimination on the basis of one’s religion would be a violation of said article.

In addition to this, Articles 4 and 25 of the constitution, which require citizens to be treated in accordance with the law and mandate that everyone be equal before the law, amongst others, also ensure that discrimination on the basis of religion is not allowed. If any discriminatory law is made targeting a group, the said law is liable to be struck down, subject to a “reasonable classification” founded on a reasonable distinction and on a reasonable basis.

And this may very well be the reason that provisions are usually content neutral, meaning that certain actions are made punishable for all and sundry who undertake them, rather than certain groups.

However, the inclusion of Article 260 in the constitution seems to have complicated the situation at hand and made lawful certain provisions which would otherwise be termed discriminatory and illegal.

A case in point would be Section 298-B and Section 298-C of the Pakistan Penal Code which relates to Qadianis. According to them, “any person of the Qadiani group or the Lahori Group” cannot refer his or her place of worship as ‘masjid’, cannot call the call to prayer ‘azaan’ or recite it in any way similar to that of Muslims. It is interesting that as per this law, if someone from another group undertook these actions, presumably this section would have no issues with that. As per Section 298-C, with respect to the two groups mentioned above, it would be a crime to ‘pose’ as a Muslim, refer to your faith as Islam, or do anything which “either spoken or written, or by visible representations or in any manner whatsoever outrages the religious feelings of Muslims”.

On the face of it, these two sections of the Pakistan Penal Code seem to be plainly discriminatory. However, it seems that the Supreme Court, in 1993 SCMR 1718, due to Article 260, had no option but to come to a different conclusion. In a majority decision, the Supreme Court in this landmark case held that these sections were legal and in line with the Constitution. Article 260(3) was used as the foundation upon which the said provisions were held to be intra vires of the Constitution, wherein the specifying of certain groups was declared a reasonable classification in terms of the said Article. Amongst other things, it was stated by the Supreme Court that such provisions were “in advancement of the Constitutional mandate and not in derogation of it”.

Hence, in a nutshell, whereas the inclusion of Article 260 in the Constitution of Pakistan was dubious for the many reasons already enunciated, its implications are nonetheless probing in as much as it allows for the propagation of discrimination on the basis of one’s beliefs on the touchstone of the constitution.

In light of this, perhaps the political forces should take some time out of their busy schedules to review the said legal provisions which directly impact the lives of certain segments of Pakistani society, rather than dillydallying on other issues.

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