The Evolution of Legislation on Religious Offences: A Study of British India and the Implications for Contemporary Pakistan

In this powerful book F. A. Nazir deploys a wealth of historical and legal scholarship to show how legislation originally drafted with the utilitarian purpose of protecting India’s various religious communities from words and actions calculated to bring offence has, in the very different context of an Islamic theocratic state, become an instrument of oppression against all religious minorities. Nazir raises issues of fundamental importance for Christians, Muslims, and all those concerned with religious freedom and stability in the contemporary world.

Brian Stanley, PhD

Professor of World Christianity,

University of Edinburgh, Edinburgh, UK

The Evolution of Legislation on Religious Offences

A Study of British India and the Implications for Contemporary Pakistan

F. A. Nazir

© 2019 F. A. Nazir

Published 2019 by Langham Monographs

An imprint of Langham Publishing

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Contents

Cover

Introduction

Religious Conflicts in Pakistan

The Aims of the Research and Current Literature on the Issue

The Research Approach and Time Scope

Approaches and Methodology of the Research

The Structure of the Thesis

The Division of Chapters

Part I

Chapter 1 The Legislation on Religious Offences of the Indian Penal Code

1.1 The Primary Amendments in Chapter XV in British India

1.2 Chapter XV of 1860

1.3 Section 295 to Protect the Places and Objects of Worship

1.4 Section 296 of IPC to Protect Religious Assemblies

1.5 Section 297 of IPC: Protecting Funeral Rights and the Human Corpse

1.6 Section 298 of the IPC to Protect Against Acts Wounding Another Religion

1.7 Conclusion

Chapter 2 The Issue of Offensive Writing and Publication and Amendments to Religious Offences Laws in British India

2.1. Offensive Publications and the Historical Setting of Amending Chapter XV in 1920s

2.2. Section 295-A of the IPC

2.3. The Application of Section 295-A after 1927

2.4. The Controversial Application of Section 295-A to Ban Angare

2.5. Conclusion

Part II

Chapter 3 The Legacy of British Law in Independent India and Pakistan

3.1 The Application of Chapter XV of Religious Offences in India post-1947

3.2 The Application of Chapter XV: Of Offences Relating to Religion in East Pakistan post-1947

3.3 Chapter XV in Bangladesh

Chapter 4 The Application of Chapter XV: Of Offences Relating to Religion in West Pakistan from 1947 to 1979

4.1 Religious Communities of West Pakistan

4.2 Ahmadi-Muslim Controversies and Religious Offences from 1947–1954

4.3 The Application of Chapter XV from 1956 to 1979

4.4 The Anti-Ahmadi Riots and Religious Offences from 1974

4.5 Conclusion

Part III

Chapter 5 The Legislation on Offences Relating to Religion and Islamization of Pakistan (1979–1988)

5.1 The Political Power of Zia-ul-Haq and Religious Offences

5.2 Islamization, Law and Order and the Creation of Federal Shariat Court

5.3 Amendments in Chapter XV of Pakistan Penal Code from 1980 to 1986

5.4 Section 295-B

5.5 Section 295-C

5.6 Conclusion

Chapter 6 The Blasphemy Law and the Question of the Protection of Religious Communities and Their Religious Rights

6.1 The Protest of Religious Communities for their Protection

6.2 Judicial Concern over the Misuse of the Blasphemy Law and the Safety of Religious Communities

6.3 Political Efforts to Bring Changes in the Legal Procedure of Blasphemy Accusations

6.4 Critical Implications of Blasphemy and Proposal for the Amendment Bill of Blasphemy from 2007–2012

6.5 Amendments to the Blasphemy Laws Act 2010

6.6. Reaction to the Amendment Bill

6.7 Conclusion

Bibliography

About Langham Partnership

Endnotes

Introduction

We have to see the reasons behind the incident [in Joseph Colony, Lahore]. If anyone has committed an offence, the law is there [but] what about the riot and arson. Where is your [Punjab government’s] writ? Nothing has been produced to establish causes of the incident . . . Whose responsibility is it to protect life, property and dignity of the citizens?

Chief Justice Iftikhar Muhammad Chaudhry (The Nation, 11 March 2013)

On 11 March 2013, the Supreme Court of Pakistan took note of an incident which occurred in Joseph Colony in Badami Bagh, Lahore, on 9 March, in which over 175 houses, a church containing religious books, and all the belongings of the Christian community were burnt and torched by a mob over a blasphemy accusation, defiling the Prophet Muhammad, which had not yet been prosecuted. The Supreme Court rejected the Punjab provincial government and police authorities’ reports on the accusation, and declared that the blank reports and totally unsubstantiated stories about the incident could not be accepted and, moreover, that the Christian community of the colony was damaged despite having nothing to do with the incident. The Court also raised another important concern: no one had the right to take the law into his hands. The disastrous consequences could have been controlled but why, asked the court, did officials stay inactive, unable or uninterested in protecting the Christians of Joseph Colony?

This is just one example of many where Christians are prosecuted under what is commonly known as the blasphemy law. The offence of blasphemy and its application to all religious communities such as Ahmadis, Christians and Hindus, and including some Muslims, is one of the most critical issues in Pakistan today. Various reasons behind the cases such as insult or personal advantage or animosity, which are readily labelled as religious conflict, have become a matter of life and death in Pakistan. The nature of religious conflict and legal efforts to avoid or reduce it in Pakistan is not a sudden or very modern religious problem glossed as blasphemy, as contemporary news and media imply today. The issue is rooted in the history of Pakistan.

Religious conflicts historically occurred between religious communities or within one religious community. For example Hindu-Muslim communalism regarding religious practices and religious differences was critically appraised in the Indian Subcontinent ruled by the British. In post 1947 Pakistan, animosity between Hindus and Muslims comparatively dropped but religious conflicts remain, yet in different modes and with different outcomes. Before approaching the contemporary pattern of religious conflicts it is important to see what the geopolitical context of Pakistan is in South Asia.

In 1947 Pakistan became an independent and Islamic nation of South Asia, but its known history actually began in the third millennium BCE with the Indus Valley civilisation and its cities Mohenjo-doro and Harapa.[1] The Indus Valley was first settled by Aryans in the north-west of the Indian subcontinent from 1500 to 1200 BCE.[2] The development of Hinduism, and significantly the caste tradition, started with the Aryans. In 712 Arab Islam entered through Sindh. Mehmud Ghazni invaded in the year 1001 and later conquered Punjab after having a vision of Islamic dominance. Some regions were almost completely Islamized by Hindu converts to Islam, helping Islam become a major religion in India.[3] By 1707 many Muslims, particularly under the Mughal Empire, ruled over north India but their power declined after the death of the sixth Emperor, Aurangzeb.[4] The British came as merchants for trade, but the constitution of the [East India] Company began in commerce and ended in empire.[5] During the era of Islamic supremacy in India, the Hanafi school of law was the legal code employed under the Ghaznavids (975–1187 CE),[6] though some scholars such as Fayzee and Zaman suggest that the Hanafi law was well established and practiced under the Mughal emperors (1500–1700 CE). They further note that the Islamic law known locally as the Muhammadan law is described in well-known texts such as the Hedaya and the Fatwa Alamgiria, which were the paramount authorities in Hanafi law in India.[7]

British rule brought new political institutions, and when indigenous mechanisms were adapted to colonial purposes, they were incorporated within new systems of law. Peters argues that between 1790 and 1807, the British transformed Islamic criminal law. Certain homicide acts, stoning to death for hadd crimes including apostasy, were repealed and strict rules of evidence and the notion of doubt (shubha) were introduced.[8] Some sources note that it was not that easy for Muslims to accept India under non-Muslim governance, for they were being colonized and lost much power. Various fatwas, for example, were declared by Shah Abd al Aziz, a Muslim scholar, against the British as non-Muslim rulers in India, although by the 1820s, scholars in Delhi agreed that as long as the practice of the Muslim faith was guaranteed by the political regime, Muslims could peacefully remain in a non-Islamic country.[9]

It was a challenge to see whether all communities could be protected when the criminal law was formally replaced with the new Indian Penal Code in 1860, which contrasted with what could seem certain arbitrariness in Hindu and Muslim law. The shari’a was then restricted exclusively to the realm of the laws of personal status such as the law of marriage, divorce, children and inheritance for Muslims. This research is limited to discuss the control of religious conflicts during British rule of the region, written in Chapter XV: Of Offences Relating to Religion, of the Indian Penal Code, a code which continued to be practised in South Asia – India, Pakistan and Bangladesh – after the British had gone.

British governance was criticized and challenged by Hindus and Muslims to get independence from British domination. In 1909 the Muslim League was founded to protect the political and religious rights of Muslims in India. Under the direction of Muhammad Ali Jinnah, the founder of Pakistan, the Muslim League effectively capitalized on the elections of 1945–1946, helping Pakistan constitute itself as an independent country on 14 August 1947.[10] Soon after this, religious communal violence started pushing minority groups in the western region to migrate to one or the other of the newly formed nations to join their co-religionists.[11] Among those co-religionists, Ahmadis, Hindus and Christians went to, or stayed, in what is now Pakistan as they were promised that they would be protected in Pakistan. How can the current context regarding religious conflicts between and within religious communities be evaluated in the post-colonial period?

Religious Conflicts in Pakistan

During the post-colonial period, the category of religious offences took different directions under the new geo-political and socio-political status of India and Pakistan. The major concern regarding the issue of conversion and application of the conversion acts affected the application of religious offences in some Indian states. However, Pakistan faced major ethnic and religious conflicts within the Islamic community of East and West Pakistan based upon differences in religious views on shaping the constitution. The religious differences in the theological beliefs of Ahmadis and Muslims remained critical in West Pakistan. It was a theological argument, particularly related to the finality of the Prophet Muhammad, which finally split both sects, with the majority declaring Ahmadis non-Muslims in 1974. Pakistan’s Islamic reformation in the 1980s brought major changes in the constitution and law including changes such as blasphemy laws which affected religious arguments, differences, discussions, conversion and even social quarrels and banal disputes among different religious communities. It changed the nature of the 1860 law against insulting religious feelings which have particularly affected non-Muslims of Pakistan and impacts on the entire country.

This research is also influenced by my own personal experience and search for identity as a non-Muslim in Pakistan when I found myself silent, unable to answer questions about Christianity in some religious conversations and discussions with fellow students, mostly Muslims and one Ahmadi, in 1992–1996. We were a happy group of young women enjoying and celebrating Christmas and the Muslim Eid: but given the religious difference I was usually regarded as the one lacking true religion. They raised various apologetic questions: the Bible is not pure but is an altered and corrupted book; Jesus did not die on the Cross and did not rise from the dead; British and American Christians with whom I usually associated do not keep themselves in parda veil, and similar issues. I was unable to answer freely and if I attempted to respond, I deliberately kept my voice flat, especially when comparing Christianity to other religions.

I was shocked one day when one of my friends brought me an Urdu book written about Christianity especially comparing it with Islam. I read the book, checking all biblical references, and realized that many references were misquoted. I took that book back and asked whether misquoting the bible was a religious offence or not? They were somewhat embarrassed, but no-one answered. I was aware if any Christian had commented in such way in respect of Islam without taking care and respect, the situation would have been different. Misquoting or changing the context of some biblical references was not a big deal for my friends but it wounded my religious feelings and indeed changed my life. Initially I became interested to learn more about Christianity and the social issues Christians face in Pakistan. Later, I started to research the historical roots and causes of religious conflicts among religious communities: the result is this book. Though my initial interest was to understand the nature of present religious injury, I eventually saw that the roots of religious conflict injury lay not in the last few years, but rather far back, in the law, colonial legacy, religious protest, political power and religious conflicts among and within religious communities, and that it affected not only Christians, but variously Hindus, Ahmadis including some Muslims.

It is understandable that discussions arise when two different religions confront each other, as I experienced as a girl, but in contemporary Pakistan, religious conflicts have been turned into a very volatile affair, quickly resulting in legal accusations claiming religious disturbance, whatever the facts of the case. For example, one of the recent blasphemy cases gained national and international attention in the news when eleven-year-old Rimsha Masih, an illiterate Pakistani Christian girl with Down’s syndrome was accused under section 295-B of committing blasphemy for burning pages of Nurani Qaida containing verses of the Qur’an and was arrested on 16 August 2012. It is important to see what kind of religious tension or conflict lay in the background to such an accusation. After Rimsha’s arrest, Khalid Jadoon, a Muslim local cleric, said in a television interview that he was disturbed by the church music and prayers of the local Christian community and had warned them that they will suffer if they continue such practices. He called for the eviction of all Christians from the neighbourhood because Pakistan is an Islamic country given by Allah.[12] During the investigation of the case, Khalid Jadoon came under suspicion for changing the evidence, especially mixing pages of the Qaeda in the ashes coming from Rimsha’s home on 22 September 2012. The main reason for doing this was, as Zubair the witness asserted: Jadoon said that it is evidence against the Christians and a way to get them removed [from the area].[13] Rimsha was later released by Islamabad High Court on the basis of lack of evidence or of the intention to commit blasphemy.[14] Now she is free from the charge but actually not free from the fear of further attacks and has moved with her family to Canada. This case attracted much attention and was mostly condemned by Muslims and non-Muslims alike. It was the first time when members of Pakistan Ulama Council stood up for non-Muslims especially to condemn misusing the law against an innocent girl.[15] Such condemnation, though showing the world that Pakistan is concerned that the law should not be misused, does not mean the country has safeguarded the future of the minorities who have little or no power to protect themselves today.

The Aims of the Research and Current Literature on the Issue

The issue of religious offences and their implications for Pakistan, especially from the 1980s to the present, has been discussed in contemporary sources. Over the last thirty years, current approaches have tended to describe Pakistan as an intolerant state especially in terms of not providing adequate protection for its religious communities from violence. Some sources claim that the Islamic reformation brought under the military rule of Zia-ul-Haq caused the recent intolerance while others dignify his intentions of reforming Pakistan. Though elements of his laws have been changed, the most debated issue is the application of the law of blasphemy which prescribes the death sentence for defiling the name of the Prophet Muhammad under section 295-C and life imprisonment for defiling the copy of the Qur’an under section 295-B. The implication of this law has not only led communities themselves to protest for their security and human rights but also directed others to write on human rights and freedom of expression. However, there is an absence of any examination of the historical roots of the law which would show how gradually not only the law but also the mode of its prosecution has been changed.

Yet the focus of this thesis is not limited to blasphemy law in modern Pakistan, easy though it would have been to do that. The thesis does not aim to give details and arguments about the scales of punishments such as death sentence or life imprisonment for assaulting God, Prophets and beliefs in Judaism, Christianity and Islam. The major reason for doing this research is to set out the historical promulgation and objectives of Chapter XV: Of Offences Relating to Religion, of the Indian Penal Code. Thomas B. Macaulay (1800–1859), an English Christian, historian and legislator, and a member of the Supreme Council of India, played an important role in introducing English education and preparing the penal code for British India between 1834 and 1838.[16] This research particularly reviews how the legislation on religious offences was revised from 1837, applied in 1860 and practised till 1947 under colonial rule and in the post-colonial era in South Asia.[17]

One of the important foci is to examine the actual application and procedure of the law. What kind of religious issues were tried under this law in the various eras since promulgation: the nineteenth century; the run-up to Independence; the early years of Pakistan; and the Zia-ul-Haq era and beyond? How were these various laws and clauses used, dropped, or annulled by later amendments? This discussion covers a range of case studies to show the early objectives and procedure by taking a careful historical approach, especially the setting out and use of intention necessary when prosecuting anyone for religious offence.

Before embarking on this evolutionary procedure it is significant to note that Macaulay and his legislation for the Indian Territory were inspired by the ethical and political theories of utilitarianism usually associated with British social and philosophical reformers such as Jeremy Bentham (1748–1832) and J. S. Mill (1806–1873). The general concept of utilitarianism is based on the view that the nature of each human being includes the desire to obtain happiness and avoid pain. To ensure each relationship with other individuals will enable that outcome, specifically targeted legislation is necessary. Bentham, in his Essays on the Influence of Time and Place Matters of Legislation, urged that India be reformed through utilitarian ideology, by promulgating and reforming laws and judgments[18] based on moral principles, hence his famous phrase, the greatest happiness of the greatest number in Indian society.[19] Though Mill’s theory, discussed in his book Utilitarianism, was influenced by Bentham, it was slightly different.[20] For example, one of the examples of Mill’s utilitarianism is based on a standard of morality which is different from Bentham’s who reviews all forms of happiness: Mill argues for the importance of intellectual and moral pleasures as superior to physical pleasure.[21]

It is not relevant to discuss the whole theories of early utilitarianism. However, it is sufficient to note that Macaulay, influenced by Bentham’s principles of utilitarianism for reforming Indian law and social life, used this as the basic principle for a rational and efficient legal system, as admirably set out in Eric Stokes’s, The English Utilitarians and India.[22] Through Macaulay, utilitarianism thus played an important part not only in the drafting of the Penal Code but also in modernizing and reforming British rule in India.[23]

Macaulay’s Penal Code was accepted, subject to revision in 1837 and finally enacted in 1860. It cannot be denied that the Indian Penal Code remained an impressive example of comprehensive law reform, despite retrograde changes introduced in the 1860 enacted version.[24] Together with later colonial amendments, it was used in British South Asia and other British Asian areas until and beyond independence.[25] Stokes argues that later reforms in the law resulted in the loss of some of his radical innovations, which will be set out in the following discussion of the legislation concerning Offences Relating to Religion.[26]

Macaulay’s designation of Chapter XV: Of Offences Relating to Religion shows his concern to foster multicultural understanding by attempting to ensure that the laws imposed by the colonial power matched the expectation of its colonial subjects. Therefore, in the context of religious diversity, the law’s major objective was to bring harmony among religious communities and to control religious conflicts which occurred through the differences among communities of feeling.[27] This aim encouraged the legislature to protect religious places, worship or objects including all funeral rites and to prevent religions discussions from causing violence. Various rules and regulations, case studies and judgments and procedures have been found in legal documents published in the Indian Legal Reports of British India and in commentaries written on the Indian Penal Code (IPC) in order to discuss the historical period and practice of religious offences in British India.[28]

Macaulay was aware that there were bound to be deficiencies in the interpretation and application of the Code, and therefore proposed some careful revisions, which were effected between 1837 and 1858. However, after his death, his basic principle could be said to have remained as the cornerstone of reforms of the law in British India and the early post-colonial era.[29] For example, the law to control religious offences was amended and reformed in the 1920s to punish the person who with deliberate and malicious intention of outraging the religious feelings of any class . . . by words, either spoken or written, or by visible representation, insults or attempts to insult the religion or the religious beliefs of that class . . .[30] This law (section 295-A) was an addition to the earlier clauses of Chapter XV of IPC, and was especially included to protect the Muslim community from offensive publications written against the Prophet Muhammad. However, a change to the philosophy and intention of Macaulay’s law came after 1980 in Pakistan, when further amendments were made to protect the sanctity of the Prophet. The law, originally intended to avoid religious conflicts in India, was very different from the blasphemy laws then existing in England and used in British history to protect Christianity. Indeed that first British India law of 1860 as it has evolved in Pakistan has only been referred to as the Blasphemy law for at the most the last thirty years. The outcome, therefore, of these recent changes has been to restrict and arguably to diminish the 1860 Penal Code.

Setting out the variations between English law, the British India 1860 law, and its outworking over the years proved all the more necessary in order to understand the later picture, the application and amendments of the law in the last thirty years, which are usually discussed in modern sources with at best a very limited assessment and incomplete or irrelevant historical evaluation. For example, Linda S. Walbridge gives adequate information about the historical existence of Christianity with her main focus on how Bishop John Joseph came to commit suicide in protest in order to encourage reform of the blasphemy law in Pakistan in 1998. However, she not only gives insufficient information but also gives an incorrect background for the legislation of Offences Relating to Religion in the Indian British subcontinent. For example, she notes that section 295-A was added in 1980 to the Pakistan blasphemy law to punish offensive speech and writing, adding her unsubstantiated assumption that the law may have been an attempt to prevent intra-Islamic violence since Sunnis and Shia’s have different opinions . . .[31] This is a totally inadequate conclusion as the historical setting of section 295-A, applied by the British in 1927, is an addition to Chapter XV to protect Muslims from offensive publications and speech. Regarding the concern of Walbridge, that section 295-A could be used for Sunni-Shia conflicts, it must be noted that section 295-A successfully protected the Christian community before the law was amended in 1980s. However, it cannot be denied and will be argued that application of this law was significantly limited in Pakistan.[32] Major sectarianism did not start in 1980s but began with the birth of Pakistan, as exemplified by the Ahmadi-Muslim conflicts in the 1950s and 1970s, which gradually affected Chapter XV: Of Offences Relating to Religion and later came to affect all religious communities, making Christians, in the same way as Ahmadis and now Shias, more vulnerable to accusation today in Pakistan as discussed in the second part of the thesis.

Significantly, reviewing the early judicial dealing regarding some cases in West Pakistan deemed religious, makes clear that contrary to Walbridge’s assumption, Chapter XV did indeed bring justice to protect different classes. Contrary to the later application of the law, which discourages communities from discussing religious matters freely, some historical cases took the prosecution of religious matters very seriously, discussing and judging without any disorder or violence. In one of the cases, for example, Christian beliefs which had been insulted by a Muslim were discussed and protected[33] and, even more important for this research, that religious rights of religions were protected provided the issue of intention was clear. In two other cases, two books were judged inoffensive, despite containing matter which might be offensive to Muslims, because they were judged as not having been written maliciously to offend Muslims.[34]

Pakistani lawyers and writers, who have reviewed the historical background of the law in British India, are important to mention. Ismail Qureshi, a Muslim writer and a senior advocate of the Lahore High Court, is one of the important sources mentioned in this research. From an Islamic perspective, he argues that blasphemy against the Prophet Muhammad is punishable with death in Islam, as discussed in detail in Namoos-e-Rasalat or Qanoon-e-Toheen-e-Rasalat (The honour of the prophethood of Muhammad and the law of blasphemy) an Urdu book published in 1994. This book states that Pakistan changed its law to protect the sanctity of the Prophet which was not protected in British India.[35] Qureshi wrote another book Muhammad the Messenger of God and the Law of Blasphemy in Islam and West published in 2008 in English, especially to address the readers in the West and also for those interested in Islamic laws. In his book the research was done with historical details and judicial aspects of law of blasphemy in Islam and other religions: Christianity and Judaism.[36] Furthermore he discussed in this book how punishments for blasphemy as prescribed in the Bible were implemented in the past in European countries and America. Qureshi commented, while discussing the Salman Rushdie case which was not tried under British and European Blasphemy law, that Europe is conservative in maintaining its own orthodox laws while Pakistan’s Government proposed to make amendments in the just equitable law of blasphemy in an attempt to show the country as a secular, modern state.[37]

Qureshi provides adequate detail about European Blasphemy laws but gives little of the historical implementation of Chapter XV: Of Offences Relating to Religion in 1860 (amended in 1920s in British India and then in Pakistan in 1980s). He does not detail, for example, that religious conflicts, generally occurring between Muslims and Hindus, came under the law especially regarding the protection of religious worship, places of worship, religious assemblies and freedom of religious discussions. Qureshi put much more focus on the events which occurred in 1920s and 1930s and argues that the main reason for religious violence over the offensive writings in this period – which brought extra-judicial judgment such as killing of two Hindu blasphemers, Rajpal and Ram, by young Muslim men – was the absence of a proper law to protect Muslim feelings in British India.[38] This is demonstrably not the case, as will be discussed in detail in the first half of the thesis, and briefly clarified here. The issue is to what extent the British were successful or unsuccessful in bringing religious tolerance, to what extent all religious communities and their religious objects were protected, including Muslims, and how the British dealt with offensive publications which assaulted the Prophet Muhammad.

Qureshi does insist that Muslims should refrain from taking the law into their own hands as an adequate remedy is available against the offender through due process of law.[39] According to Qureshi, an accusation of blasphemy should be judged only by the intention which is the most important element introduced by the Islamic law. He can be regarded as the first who tried to amend the blasphemy law, especially to revise the death sentence carried out according to Islam, and to add mention of intention in section 295-C as the basis of prosecuting anyone accused of defiling the Prophet. However, his proposal was withdrawn by the ruling Government of Nawaz Sharif in 1991.[40] He also argues that Pakistani non-Muslims should not be afraid as the law of blasphemy is not aimed against them. He further notes