A brief history of the anti-blasphemy laws

In November last year, Islamabad in particular and the rest of Pakistan in general were in thrall of a sit-in at Faizabad, just where the federal capital meets Rawalpindi. The protest was occasioned by a modification in an oath election candidates must take while filing their nomination papers. The change was made through the hastily passed Election Reforms Amendment Bill 2017. The act, pushed through the federal legislature in late September, was initially controversial for clauses seen as a means for allowing Nawaz Sharif to regain his position as the head of the ruling Pakistan Muslim League-Nawaz (PMLN) after he had become ineligible to hold the post due to his disqualification by the Supreme Court.

Within days of the act’s passage, some opposition legislators noticed that the wording in one of the electoral forms, where candidates are required to affirm the finality of the Prophethood, had changed. Facing accusations and intense criticism that they had compromised on the issue of the finality of the Prophethood, the government’s representatives immediately retracted, ascribing the change to a clerical error and restoring the original text. In the public debate that ensued, Interior Minister Ahsan Iqbal warned clerics to desist from issuing fatwas of kufr (apostasy) and blasphemy against those they thought responsible for the alteration, as it would lead to chaos. But this plea did not prevent an irate former prime minister, Zafarullah Khan Jamali, from taking exception to the new text and wishing death upon Parliament for approving it. A few days later, Captain Muhammad Safdar, Sharif’s son-in-law, unleashed a tirade against the Ahmadi community which, he argued, was an existential threat to Pakistan. Allegations against (now former) federal law minister Zahid Hamid, that he had committed blasphemy and that he was an Ahmadi, soon began to be aired by clerics and on social media.

Within weeks, hundreds of men, armed with batons and led by Khadim Hussain Rizvi who heads a previously little-known organisation, Tehreek-e-Labbaik Ya Rasool Allah, began their sit-in at Faizabad, blocking traffic to Islamabad. They set up camp on a main highway, attacking and intimidating citizens and often clashing with law enforcement personnel. When, after a lot of prevarication, the Islamabad administration tried to disperse them on November 25, it resulted in demonstrations that disrupted daily life in many areas across the country and led to the death of five protesters and one policeman.

Hundreds of others were wounded. Joined by other religious groups such as Tehreek-e-Khatm-e-Nabuwat and Sunni Tehreek, the protesters also attacked the houses of sitting and former ministers and many PMLN representatives in various towns and cities. They agreed to end their protest only after Hamid resigned and the government signed an agreement with their leaders, promising to punish those who had changed the text in nomination forms besides making many other concessions.

It remains unclear why they went ahead with their protest in the first place given that the government had already reversed course. What is clear is the close connection between anti-blasphemy laws and Ahmadism and how this connection has been highlighted by the relationship between the finality of the Prophethood, parliamentary legislation and subsequent violence in this particular instance. While accusations of blasphemy outside of the political arena can lead to myriad consequences, within the political sphere, such allegations and, indeed, sympathy for the Ahmadi community, serve to delegitimise a person’s Muslimness and, as a corollary, a person’s morality — so intricately entwined are the two concepts in Pakistan.

When Jamali invoked ruin and death on the legislature, his comments echoed those made by Nisar Fatima in the summer of 1986 when she warned that the National Assembly invited wrath on itself if it did not pass a law immediately to protect the honour of the Prophet (may peace be upon him). Faced with agitated emotions, the government of the day soon conceded. The then minister of state for justice and parliamentary affairs, Mir Nawaz Khan Marwat, accepted the ulema’s contention that the death penalty be added to the proposed anti-blasphemy law, Section 295-C of the Pakistan Penal Code (PPC). He declared: “In my opinion with this [amendment] adequate sentence has been made for blasphemers and in future no one will dare to commit blasphemy of the Holy Prophet.”

Yet 30 years later, the reverse seems to be true. If Section 295-C was a law designed to end blasphemy, the evidence indicates it has failed. Over the last few decades, it has produced numerous accusations, countless cases, instances of assassination and lynching, widespread intimidation and censorship. Khadim Hussain Rizvi has had many predecessors who have appropriated to themselves the defence of the Prophet (may peace be upon him). Blasphemy allegations have impaired our politics and infiltrated our everyday life. Routinely expressed regrets about the “misuse” of blasphemy laws are as routinely forgotten. Mashal Khan’s lynching by his fellow students inside a university over blasphemy allegations in April last year is already a fading memory.

Yet, one has to ask how it is that a law designed to defend the Prophet’s honour has had such unforeseen and tragic consequences. Perhaps it is time to reassess Section 295-C by revisiting the forces that occasioned it, the incident that triggered it and the parliamentary debates that justified it. Classically trained muftis, after giving their reasoned opinion (fatwa), would always conclude by writing “wa Allah a’lam” (but God knows best) in acknowledgment that human reasoning, even when exercised to the best of human ability, remains fallible. It is an expression of humility that we all, our legislators included, would do well to remember. After all, Section 295-C is a man-made law and if Islam, above all, is a religion centered on justice, then a review and reassessment of this law is incumbent upon us. As a starting point, we must revisit the mundane politics and social tensions of 1986.

Zia and Islamisation

After eight years of martial law, General Ziaul Haq had finally conceded to hold elections in 1985. Fearing the Pakistan Peoples Party (PPP) might stage a comeback through the polls, he insisted that candidates stand independent of party affiliation, that is, we were to have non-party based elections. Benazir Bhutto and her PPP decided not to contest, thus allowing the Pakistan Muslim League to win a majority as independents. Zia selected Muhammad Khan Junejo, a little-known Sindhi politician, as prime minister, someone who, Zia reasoned, might be more palatable to the PPP’s supporters than a Punjabi politician would be. With hindsight, the PPP’s non-involvement in the election was a mistake, as it allowed forces allied with Zia to further propagate and consolidate their agenda.

Many of the new members of the National Assembly (MNAs) had earlier worked as members of Zia’s handpicked Majlis-e-Shoora (a powerless consultative council that existed between 1981 and 1984) and supported demands for Islamisation and the enforcement of sharia. In 1985-86, senators Samiul Haq and Qazi Abdul Latif of Jamiat Ulema-e-Islam (JUI) pushed the first iteration of a sharia bill, forcing Junejo’s government to promise legislation towards further Islamisation in the shape of the ninth constitutional amendment. This amendment was passed by the Senate but lapsed when Parliament was dissolved and Junejo’s government dismissed by Zia in 1988.

Before Junejo came to power, Zia’s Islamisation had consisted of establishing the Federal Shariat Court, widening the mandate of the Council of Islamic Ideology (CII) and promulgating the Hudood Ordinances in February 1979. The last move introduced punishments for theft and robbery, zina (extramarital sex), false allegations (qazf) and consumption of alcohol. Subsequently, the Majlis-e-Shoora proposed the Qanun-e-Shahadat Order and the Qisas and Diyat Ordinance. The former was enacted through decree in 1984, replacing the 1872 Evidence Act. While much of it was a translation of the British-era act into Islamic terminology, it did reduce the weight of women’s evidence in financial matters. As far as the qisas and diyat law is concerned, a version of it was enacted in 1990 through executive decree before it became a parliamentary act in 1997.

The zina provisions of the Hudood Ordinances and the Qanun-e-Shahadat Order diminished women’s evidential capacity and equality before the law. Repeated calls to further diminish women’s rights by repealing the Muslim Family Laws Ordinance of 1961 and the rhetoric of “chador and char diwari” – that is, attempts to regulate women’s dress and curtail their public activities – meant that much of the symbolic, legal and rhetorical weight of Islamisation fell on women. From being at least formally equal citizens, if not necessarily so in practice, their legal status was increasingly eroded. This was a remarkable shift from the public discourses of the 1960s and early 1970s, when the national development agenda included commitments to tackling gender discrimination. Unsurprisingly, Zia’s actions – supported by a wide array of patriarchal forces, both religious and secular – led to resistance from women’s groups.

At the forefront of this resistance was the Women’s Action Forum (WAF), with Asma Jahangir as one of its leading activists. Asma and WAF were portrayed in the conservative nationalist press as anti-national foreign agents and the enemies of Islamisation. These “nasty women”, to use Donald Trump’s characterisation of another forceful articulate woman, refused to be socially subordinated and legally discriminated by prevalent forms of patriarchy. They took to the streets of Lahore, demonstrating on The Mall in February 1983. It was the moment when symbolic violence transmuted into physical violence.

Regarded as ‘loose’, ‘elitist’ and ‘immoral’ and accused of acting outside social norms, these ‘unruly’ citizens were physically assaulted by the police. This state attack on women occasioned much public shock. It shouldn’t have. There is often only a small step separating legally sanctioned discrimination and rhetoric from physical violence and public vigilantism. Witness the Trump-inspired actions against Muslims in the United States today. It almost goes without saying that the same thing is happening in Modi’s India.

Sectarianism and offences against religion

Islamisation, however, had multiple fronts and manifold effects beyond the women question. It unleashed all kinds of dreams and aspirations and also antagonisms. Islamisation policies quickly demonstrated that, despite the rhetoric of Muslim unity, there were, in fact, many differences within the Muslim community. These policies provoked the question of which or whose Islam. The provisions introduced for the official deduction of zakat (in 1980), for example, were opposed by Shias who would not accept the state’s role in this regard. This opposition and a Sunni version of Zia’s Islamisation were instrumental in the formation of the first specifically Shia party in Pakistan, Tehreek Nafaz-e-Fiqh-e-Jafaria, that subsequently became Tehreek-e-Jafaria Pakistan. This only encouraged the formation of their sectarian rivals such as Anjuman Sipah-e-Sahaba that subsequently became Sipah-e-Sahaba Pakistan and has been lately renamed Ahle Sunnat Wal Jamaat.

Zia sought to cultivate support for himself by co-opting various religious groups and, to that end, organised ulema and mashaikh conferences in quick succession in August and September of 1980. At the first conference, the ulema made a number of radical demands that would have opened up state offices to their direct employment and influence in education, judiciary and administration as they sought to manage and implement Islamisation. In his concluding speech, Zia agreed to some of their demands but for the most part he did not follow through. One notable exception was the demand for a law to protect the dignity of holy Muslim personages.

Less than a month later and days before the start of the mashaikh conference, the government added Section 298-A to the PPC. The new law stated: “Whoever by words, either spoken or written, or by visible representations, or by any imputation, innuendo or insinuation, directly or indirectly, defiles the sacred name of any wife [Ummul Mumineen], or members of the family [Ahle-bait], of the Holy Prophet [Peace be upon him] or any of the righteous Caliphs [Khulafa-e-Raashideen] or companions [Sahaaba] of the Holy Prophet [Peace be upon him] shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both.”

This was the first post-independence addition to the criminal laws regulating ‘offences against religion’, which had remained unchanged (barring one addition in 1927) since the institution of the Indian Penal Code in 1860. The original laws protected places of worship and sacred objects from damage and defilement (Section 295), religious assemblies from disturbance (Section 296), funeral remains and burial sites from malicious trespass (Section 297) and religious feelings of any person from deliberate insult (Section 298). Although designed to regulate religious conflict, these laws seem to have had a role in fostering and furthering it. They were used by religious reform movements and groups who encountered each other through vernacular print publications and in expanding urban centers.

Punjab in the early 1920s was a hotbed of religious strife with active Hindu, Sikh, Muslim and Christian movements. These antagonisms heightened as religion under British colonial rule increasingly became the basis of political identities. One especially active and disruptive Hindu reformist sect, Arya Samaj, was provocative towards both orthodox Hindus and Muslims alike. One of its members wrote an offensive and sacrilegious tract against the Prophet (may peace be upon him). The British authorities discovered they were unable to prosecute him under Section 298, which only criminalised spoken – but not written – language.

Consequently, they tried the publisher, Rajpal, under Section 153-A, which criminalised incitement of hatred and causing enmity against religious, racial or caste groups. He was convicted by a trial court but the verdict was overturned on appeal in May 1927 by Justice Dalip Singh of the Lahore High Court. While the judge accepted that the publication was a “scurrilous satire”, he held that Section 153-A did not apply to deceased religious personalities and suggested the government consider enacting another provision to address the loophole.

Section 295-A

The colonial authorities were surprised when Chief Justice of the Lahore High Court, Sir Shadi Lal, chose Singh, who was a Christian convert from Hinduism, to hear the case. They were even more surprised at Rajpal’s acquittal and Singh’s reasoning for it. They moved swiftly to do damage control by trying to ensure an authoritative judgment in a similar case involving Arya Samaj. They hoped the judgement, in what was known as the Risala-e-Vartman case, would supersede Singh’s judgment. Ultimately, however, they decided that the Vartman judgment was insufficient and a new law was required.

This new section was designed specifically to criminalise insults to religion but these had to be intentional, deliberate and also result in “outrage”. These stipulations, it was thought, would prevent frivolous allegations. As an additional safeguard, the charges could only be brought by the government. Throughout the process of the law’s drafting and passage, there was considerable concern that it should not be too wide in scope so that it did not infringe upon reasonable criticism.

After internal debate and consultations, the colonial government presented the draft law to the Central Legislative Assembly in Delhi. Muslim members of the assembly, such as Sir Abdul Haye and Mian Sir Muhammad Shah Nawaz, while recognising the necessity for a new law, thought the draft law was too wide. Jinnah, while reserving his suggestions for the select committee stage, nonetheless commented:

“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.”

While the ulema in the Imperial Legislative Council supported the bill, a few of them also voiced some reservations about its scope. Maulvi Mohammed Yakub thought the law should be limited to attacks on the prophets and founders of great and recognised religions. A Muslim member, T A K Sherwani, made one of the most interesting comments. He acknowledged that the law had been necessitated due to communal strife between Hindus and Muslims but raised the possibility that it might contribute to discord within the Muslim community, among Shias, Sunnis and Ahmadis.

Ilm-ud-din and Rajpal

After revision in a select committee, the new law gave colonial authorities a means to clamp down on the vitriolic polemics by some of the highly communalised vernacular newspapers and journals. But Rajpal’s trial, and his eventual acquittal, had already stoked communal acrimony. In April 1929, two years after his acquittal, he was attacked by a 20-year-old Muslim, Ilm-ud-din. The colonial home department correspondence reports the incident:

“Around 2.30 on 6th of April last he was sitting in his shop situated about 100 yards down a side street … when he was stabbed by one Ilmud Din with a knife. Death was apparently instantaneous … the murderer was pursued and caught.”

After Ilm-ud-din was convicted and sentenced to death, his trial lawyer requested Jinnah to represent him during the hearing of his appeal before the Lahore High Court. Jinnah’s strategy was to attack the prosecution evidence produced before the trial court as insufficient. He also challenged the death penalty as being too harsh a punishment given the defendant’s age. But these arguments were rejected and the sentence was affirmed. Ilm-ud-din was executed and buried on October 31, 1929 in Mianwali jail. Shortly thereafter, at the request of leading members of the Muslim community, including Allama Muhammad Iqbal, the colonial authorities allowed him to be reburied in Lahore on November 14.

Ilm-ud-din’s example has become a hagiographical staple among some religious groups who routinely cite his action as an appropriate and natural response to blasphemous insults. However, it ought to be remembered that Rajpal’s assassination occurred some six years after the offensive publication. It happened amid some of the worst communal tension in Punjab’s history — exceeded only by the violence around Partition. In other words, Ilm-ud-din’s action was an exception rather than the norm, produced by inflammatory discourses on all sides.

That highly polarised times produce such viscerally motivated murders is not uncommon — witness, for example, the murder of British MP Jo Cox in June 2016, by a xenophobic nationalist, Thomas Mair, during the British referendum on exiting the membership of the European Union. Mair regarded Cox as a “traitor” to the white race. Yet the discourse around the Brexit referendum pales in comparison to the level of animosity and active antagonisms that existed among extremist communal groups in Punjab of the 1920s. Ilm-ud-din’s vigilante action was the end result of a series of unfortunate and unique events. It cannot be taken out of its historical context and naturalised as the norm. For if it is the norm, then its logical corollary is that anyone who is perceived as blaspheming is liable to be killed. Mashal Khan was a victim of such a presumption — one that has been encouraged by some of the more extreme religious groups.

In the case of slain Punjab governor Salman Taseer, this went even further in that he did not commit blasphemy but was defending the legal rights of a woman convicted on blasphemy charges. Ironies abound. One of the pall-bearers at Ilm-ud-din’s reburial was Salman Taseer’s father, Muhammad Dir Taseer. Among Muslim movements at the forefront of the campaign against Rajpal and Arya Samaj were Ahmadis.

In a more recent case, a mere reprimand led to accusations of blasphemy and consequently to a murder. Faheem Ashraf, a student at New Islamia College in Charsadda, had not attended classes in order to participate in Faizabad protests. On January 22 this year, he killed Sareer Ahmed, a college principal, who had rebuked him for being absent. “I have been taught … to kill …to not be afraid. Don’t be afraid of disrespecting the one who commits blasphemy,” he is reported to have told the officer who arrested him.

The Islamisation of offences against religion

Zia’s Islamisation had inadvertently renewed and revitalised the undercurrents of sectarianism. The demand at the ulema conference of 1980 for the protection of sacred Islamic personages – which Section 298-A provided for – was probably a result of sectarian controversies between Sunnis and Shias, Deobandis and Barelvis, and Ahle Hadith and everyone else at the time. Section 298-A, however, was an exception to the structure of the penal code in two crucial ways.

Firstly, it specifically protected only key Islamic personages. Secondly, the delineation of particulars – in this case, specifying the holy personages – was counter to the philosophy underlying the original penal code that enunciates general principles and eschews particulars, because if one were to specify particulars there would be no end to it. The specification of particulars always leads to discoveries of omissions and, hence, to demands that the laws be extended. Imagine, for example, if one began to list all the persons, objects and places deemed sacred in a multireligious society.

The list would be extensive, running into hundreds if not thousands of names, and would potentially never be complete as more and more religious groups seek the inclusion and protection of who and what they consider sacred. Keeping them out of the purview of the law would lead to protests over perceived legal discrimination. Thus, the general language of the code had the advantage of protecting all religions and could be applied wherever thought necessary. Legally speaking, then, Section 298-A is redundant as sections 298 and 295-A are more than adequate to prosecute insults to sacred personages. One is forced to conclude that Section 298-A was a symbolic gesture by the Zia regime to burnish its Islamic credentials — a gesture comparatively easy to make.

The section differed from the colonial laws in another – and important – respect. It dispensed with the criterion of “intent” that hitherto was a key feature in determining the commission of an offence. The addition of the phrase “… or by any imputation, innuendo or insinuation, directly or indirectly” suggested that the interpretation by those who heard the words rather than the intent of the speaker in saying the words became the foremost criterion. This emphasis on the effect of words rather than the speaker’s intent was a radical and fundamental change.

Once Section 298-A was introduced, the demand for including additional particulars in it, by logic of extension, started arising. Today, few argue that we should return to the original provisions. Many, however, ask for the laws to be extended to include sacred personages of Christianity, Sikhism, Hinduism as well as all the 124,000 prophets recognised in Islam.

As a legal template, Section 298-A changed everything. Somewhat surprisingly, however, it omitted the Prophet (may peace be upon him) while specifying his wives, family, companions and early caliphs. Two years later, in 1982, another section, 295-B, was added through an ordinance. It criminalised the defiling of the Quran and seems to have been induced by a media-led moral panic. Urdu newspapers began to report instances where the Quran was apparently defiled.

In many of these reported incidents, Quranic text, whether as part of newspapers, primers, pamphlets or the Quran itself, was being discovered from rubbish heaps and sewage. That the vast majority of cleaners and sewage workers were illiterate Christians who may well have been unaware of what they were disposing does not seem to have been taken into account.

Another contributory factor was the use of the Quranic texts in taveez (amulets) and by aamils, practitioners of black magic. Both of these practices were subjects of controversy and fear as well as the grist for the mills of inter-sectarian and inter-religious disputes. The incidents of Quranic desecration were seen as but another example of the activities of dark forces aligned against Islam, Islamisation and the Muslim polity. Once again, Zia’s government displayed its Islamic credentials by adding this additional provision to the penal code. Once again, it was unnecessary, because the offences specified in 295-B were already adequately covered in principle by Section 295. If the punishment given in the original section was deemed insufficient, it could have easily been increased.

Both of the new sections, 298-A and 295-B, are technically discriminatory. They privilege one religion, Islam, through specification of particular sacred persons and books, and imply that other religions are secondary. This is not by any means peculiar to Pakistan. In the United Kingdom, for example, the Queen’s designation as ‘Defender of the Faith’ has its origin in the British sovereign’s historical association with Christianity, but has led many, including Prince Charles, to argue that it should be pluralised to “Defender of the Faiths” to reflect a non-discriminatory approach to the multicultural and religiously pluralistic society that Britain has become.

More pertinently, when Muslims in Britain mobilised to protest against Salman Rushdie’s book, The Satanic Verses, they discovered that their country’s blasphemy laws only protected Christianity. This led to demands for the extension of these laws to other faiths (by the logic of extension), something that was seriously considered until a House of Lords Select Committee recommended in 2008 that the best solution was to repeal blasphemy laws and prosecute offensive speech under hate speech laws instead. This abolition has effectively ended calls for blasphemy prosecutions by activist groups and is indicative of the power of laws to shape public discourse.

The next Zia-era addition – an ordinance that introduced two new sections, 298-B and 298-C – was even more explicitly discriminatory. Its very title, The Anti-Islamic Activities of Qadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance of 1984, made no bones about it. Commonly known as ‘the anti-Ahmadi ordinance’ or Ordinance XX, the edict was a long-standing demand of groups such as Tehreek-e-Khatm-e-Nabuwat that had been at the forefront of anti-Ahmadi agitation in 1953 and again in 1974 when it succeeded in forcing a reluctant Zulfikar Ali Bhutto to bring the question of Mirza Ghulam Ahmad’s alleged claim to prophecy before the National Assembly.

Parliament found the argument to be against Ahmadis and declared them “non-Muslims” through the second constitutional amendment. Having been forced to a decision he initially resisted, Bhutto was not above making political capital from it. He, however, was not prepared to further infringe upon Ahmadis’ citizenship right by criminalising their religious expression. But, in 1984, Zia did not put up much resistance. Responding to renewed anti-Ahmadi agitation, he soon succumbed to the protesters’ demands.

The new sections criminalised Ahmadi engagement with Islam. Section 298-B criminalises the use of various Islamic terms by Ahmadis whereas 298-C is so unlimited in its scope that it basically criminalises anything Ahmadis may say or do in relation to Islam. Not surprisingly, thousands of Ahmadis have since been charged with a bewildering array of offences. The two sections are highly discriminatory laws, designed against one particular community with the singular purpose of forcing its members to desist from using terms and signs that are considered the sole preserve of Muslims. In short, the aim of the laws is to prevent Ahmadis from displaying signs of Muslimness — or, to use the wording employed in the sections, to prevent them from “posing” as Muslims. These laws have Orwellian forebodings and say to the Ahmadis: we are watching you.

Given the close association between the anti-Ahmadi movement and the anti-blasphemy movement, demands were raised again in 1984 for a law specifically to protect the honour of the Prophet (may peace be upon him). The Federal Shariat Court had been petitioned on the matter but its decision was still pending, whereas the Council of Islamic Ideology had already recommended the enactment of such a law. Zia, however, did not take any immediate action as he was preoccupied with the political pressure on him to share power and gain legitimacy by holding elections.

“The addition of Section 295-C to the penal code was passed and became law after presidential approval on October 5, 1986. Hamza was the only member who opposed the bill in the National Assembly.

This, then, was the legal, political and social background to the introduction of Section 295-C in 1986: a set of new laws that gave particular Islamic personages and texts protection and ring-fenced Islam from Ahmadis; a political scenario where many figures from the erstwhile Majlis-e-Shoora continued to push for Islamisation as members of the National Assembly along with religious parties, and without any meaningful resistance given PPP’s absence from the political field; and a socially conservative and patriarchal public discourse that sought to circumscribe women in social and political life and threatened to further erode their rights.

With demands for the implementation of sharia and the government’s willingness to make further concessions to religious groups, entities such as the Women’s Action Forum (WAF) continued to mobilise against what they considered a patriarchal, clerical and retrogressive implementation of Islam.

This was the context in which Asma Jahangir made a speech at a WAF seminar in Islamabad on May 17, 1986 and sought to challenge the ulema’s role. She questioned the need for a clerical class with specialist knowledge to mediate the scriptural message.

To make her point on the direct, unmediated relation between the revelation and the individual, she used the example of the Prophet (may peace be upon him) and said that an “ummi” had been chosen for receiving the divine word. What she meant was that one does not require specialist knowledge to understand the divine message. The Herald of July 1986 reports on the controversy:

At a WAF seminar in Islamabad, Asma had stated that since Islam was revealed to an ummi (unlettered person), it was a clear indicator ‘that there was no wall of priesthood between a believer and Allah.’ This being so, she asked why should the ulema of the Council of Islamic Ideology monopolise Islam.

It was the choice of this term – ummi – that unleashed a chain of events that eventually led to the introduction of Section 295-C. Asma’s remark, however, did not seem to have occasioned much protest in the seminar itself except that one or two lawyers in the audience apparently took umbrage. Neither of the English or Urdu newspapers of record, Dawn and Jang respectively, made any mention in their immediately subsequent editions of either the seminar or of any untoward comments during it.

In traditional Muslim scholarship, ummi had been understood as “unlettered” or “untaught”, which is often summed up as “illiterate”. For classical scholars, however, this was not an aspersion or in any way pejorative. Rather, it signified that the Prophet (may peace be upon him) was untouched and unsullied by human knowledge and as such was the perfect person to be the messenger of direct revelation from God.

In short, ‘illiteracy’ for classical Muslim scholars was a sign and proof of the genuineness and nobility of his Prophethood and the inimitability of his revelation, the Quran. More recent scholarship suggests that the term “al-Nabi al-Ummi” can also be understood as a prophet sent to a people (ummah) without a scripture. Whatever connotation or inflection the term may have, it is not pejorative in classical Islamic discourse. In contemporary Pakistan, however, with the country’s emphasis on education as indicative of development, progress and civility, ‘illiteracy’ has come to signify low status and backwardness. The social context of interpreting “ummi” has thus radically changed.

To her detractors, Asma was a rich, elitist, westernised woman who represented a class that flaunted its cultural status and presumed superiority through the use of the English language and western education. Challenging the ulema’s scholarly credentials and their interpretations was like suggesting that they were backward and ill-educated — as the popular genre of ‘mullah jokes’ indicates. Her remark was interpreted within this class context and crystallised generations of subordination and resentment that resulted from class inequality.

Class dimension is an important and understandable element of the conflicts and resentments that contribute to religious politics. As Jamaat-e-Islami’s Liaqat Baloch once explained to me, he and other leaders of his party from the middle and lower-middle classes had encountered liberal elites and socialist ideologues on college campuses in the 1960s and 1970s.

These secularists, infatuated with notions of progress and prone to ridiculing religion and tradition as backward, irrational and superstitious, were dismissive of religious attachments and sentiments. In fact, many of them regarded religion as an anachronism that was bound to fade or disappear with the advent of development, education and modernity. They exhibited an arrogance of power, a confidence that the future was theirs. In Baloch’s opinion, these attitudes led them to exhibit disrespect towards religion which, on occasion, he argued, included disrespecting Islam and the Prophet of Islam (may peace be upon him).

Jamaatis like him interpreted Asma’s comment in this context — as yet another instance of elite arrogance. But times had changed. Ideas of progress, secularisation and development had stalled and the turn to Islam was on the ascendant. With Islamisation, Jamaat leaders hoped the future could become theirs, though seemingly it was still in the balance as Benazir Bhutto had made a triumphant return from exile only months before and the spectre of her PPP reversing the gains of Islamisation could not be discounted.

It was one of Baloch’s Jamaat colleagues, Nisar Fatima, who took the initiative against Asma. Like Baloch, she too was a member of the recently reconvened National Assembly and shared the Jamaat’s antagonism towards liberal-secularists — an antagonism sharpened by her completely different gender politics from that of WAF. She first attempted to move a privilege motion in the National Assembly on June 4, 1986, directing its attention to the WAF seminar, seeking a ban on WAF and asking for action to be taken against Asma for making allegedly derogatory remarks. She was backed by her fellow party members, Baloch and Maulana Gohar Rehman, who alleged that this “blasphemy” was not an isolated incident and accused WAF of speaking against sharia.

Speaker Hamid Nasir Chattha, who had replaced Syed Fakhar Imam a week before, ruled the privilege motion out of order but pointed out that if a crime had been committed then criminal charges could be filed. He was correct in indicating that the criminal law rather than the National Assembly was the way to proceed. If Asma had made an insulting comment then criminal laws already existed, namely Section 295-A and Section 298, under which she could be charged. Why go to the National Assembly when the criminal law provided redress?

Asma, for her part, argued her words had been misinterpreted and welcomed a full inquiry. A former chief justice of the Federal Shariat Court, Justice Sheikh Aftab Hussain, who had also given a presentation at the WAF seminar, issued a statement, saying there was nothing objectionable in her speech. He went on to olaud the WAF members for their scholarly engagement with Islam. Neither paper of record, Dawn nor Jang, report any direct eye witness accounts that corroborated Nisar Fatima’s accusations and allegations. Legally, they amounted to hearsay in that she herself had not been present at the seminar. Khalid Ishaq, a renowned Islamist jurist, one who supported the imposition of sharia and was at the same seminar as one of the presenters, pointedly commented in a 1986 interview with the Herald:

There was no point in insisting that sacrilegious words were uttered, when the complainant never heard the words personally and when serious, knowledgeable and responsible persons found nothing offensive uttered.

Nisar Fatima and the Jamaat-e-Islami, however, persisted. Daily Jang’s Lahore edition of June 8, 1986 reported a press conference that Nisar Fatima held at Model Town’s Ladies Club in Lahore where she was quoted saying: “Asma [Jahangir] said in her statement why has Justice Aftab Hussain not objected during her speech … [Another] lawyer, however, took note.”

Jang further reported Nisar Fatima saying that the use of the word “unparh” (illiterate) for the Holy Prophet (may peace be upon him) was blasphemy, that she was resolved to go to court if the government failed to take notice of the incident and that she was consulting lawyers for this purpose. In a linked report, Jang noted that representatives of various women’s organisations at the Ladies Club expressed resentment against the growing activities of WAF and ladeen (irreligious) elements and demanded that due punishment be given to Asma and other women who had committed blasphemy.

As the Jang report makes clear, Asma’s use of “ummi” had been interpreted by groups associated with Jamaat-e-Islami as “unparh” and she, therefore, was accused of committing an insult. The references to courts and trials notwithstanding, Nisar Fatima apparently did not pursue the option of filing criminal charges. The most obvious conclusion is that she did not have a case under the laws that existed at the time.

However, on June 16, 1986, Jamaat-e-Islami accused the minister of state for justice and parliamentary affairs, Mir Nawaz Khan Marwat, of having earlier misled the National Assembly by stating that there were “specific” legal provisions protecting the Prophet (may peace be upon him). Two privilege motions were admitted by the National Assembly to allow debate the following day, June 17, in which Marwat denied misleading the house and articulated the government’s position that sections 295-A and 298 covered blasphemy against the Prophet (may peace be upon him). But Shah Baleeghuddin, a religious scholar elected to the National Assembly from Karachi and a member of the government benches, was quick to point out these provisions were not specific.

He also argued that if Section 298-A existed to protect other important figures in Islam, how could there not be a law to protect the very foundation of Islam? The logic of extension, once in place, was unassailable. Since the laws had already shifted from general principles to particulars, there was no real response to his question. No one pointed out that all these particular laws were legally unnecessary and contrary to the principles of the penal code. Shah Baleeghuddin went on to express astonishment and outrage that the existing punishment under Section 295-A was less than the three-year imprisonment for desecrating the Pakistani flag (punishment under Section 295-A was later increased to 10 years in 1991).

Other ulema such as Maulana Gohar Rehman supported his position and argued that the appropriate punishment for blasphemy against the Prophet (may peace be upon him) in Islamic jurisprudence was the death penalty. Without a law to protect the Prophet (may peace be upon him), he insisted, it was inevitable that there would only be more incidents of blasphemy. He then signalled the enemy – alluding to WAF and other “westernised” women as the ‘one per cent’ who were outside the norms of the nation and Islam – as opposing these measures. Rehman’s intervention put the women question at the forefront of the debate. Some women members of the National Assembly, such as Begum Sher Ali Khan Pataudi, walked out in protest against these remarks but other women members were provoked to defend their own Muslimness.

They sought to distance themselves from the heavily criticised, supposedly “anti-national”, “westernised women” and attempted to firmly locate themselves within the social norms of the nation. Begum Kalsoom Saifullah Khan, for example, was so eager to disassociate herself from the ‘one per cent’ that she sought the guidance of superior male wisdom, asking the Maulana not to scold but to gently guide “us women” to the right way.

The tone of the debate, it is fair to say, was already quite emotional when Nisar Fatima, already instrumental in the whole episode, rose to speak. She demanded the law be passed that very day. Otherwise, she warned, the lawmakers risked divine displeasure and the National Assembly might not survive. Other members – such as Malik Muhammad Aslam Katcheela, a treasury representative from Sargodha, and Maulana Moeenud Din Lakhvi, an Ahle Hadith stalwart from Kasur – supported her demands. Speaker Chattha ended up making a crucial concession by agreeing that the existing sections were inadequate and that a bill should be introduced.

He agreed to the contention that if the Prophet’s family, companions and the caliphs could be protected then the omission of the Prophet (may peace be upon him) from protection was especially glaring and galling. Following the speaker’s lead, Marwat promised that the government would introduce a bill soon, but members of religious parties such as Liaqat Baloch continued to press the urgency of the matter. Chaudhry Amir Hussain, a treasury member elected from Sialkot who would become the National Assembly speaker in 2002-07, suggested that anyone who opposed such a bill would have their Muslimness questioned.

A few others – such as Khan Muhammad Arif Khan, elected from Jhang, and Hamza, then elected from Toba Tek Singh and now a sitting PMLN senator – suggested the need for patience as drafting laws required time, consideration and review. They were quickly drowned out by the upwelling of emotion. Begum Qamarun Nisa Qamar, a female member, echoed Nisar Fatima in demanding an immediate passing of the law that very same day while Begum Bilqis Nasar Minalla implicitly endorsed extrajudicial violence, saying that had she been present at the WAF seminar she would have taken the matter into her own hands.

As Chattha struggled to stop the emotionally charged rhetoric from escalating and terminate the debate, Nisar Fatima intervened one last time to disparage Asma by claiming that she was not even a Muslim as she had allegedly married into an Ahmadi family. Accusing someone of being an Ahmadi is a default means of questioning their Muslim identity — as the recently removed law minister Zahid Hamid and many other prominent people in the past few decades have discovered. Finally, Chattha was able to prevail, preventing further comments and promising the tabling of the bill.

Within a week, Liaquat Baloch gave notice that he was going to introduce a private member’s bill. His proposed draft was as follows:

“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 Muhammed (may peace be upon him) in any manner shall be punished with death or imprisonment for life.” (Emphasis added)

This was a copy of the language used in Section 298-A, as the italicised part shows. The government sought to pre-empt his bill by tabling its own version which, too, copied the wording of Section 298-A but omitted the mention of the death penalty. It read:

“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 Muhammed (may peace be upon him) shall be punished with imprisonment for life, and shall also be liable to fine.” (Differences between the two versions are highlighted in bold.)

The government’s internal correspondence on this matter does not indicate any considered process of analysis, assessment or comment to weigh the implications of this wording. On the contrary, an internal memo dated June 26, 1986, sent by Marwat indicated his haste to introduce the bill and asked that the requirement for a mandatory cabinet discussion on it to be waived:

“In view of the urgency of this matter, it is requested that under the sub-rule 20 of rule 16 of the Rules of Business 1973, the [prime minister] may be pleased to waive the requirements of this case being submitted to the Cabinet and approve of the Bill at Annex I for the introduction in the National Assembly.”

After getting the approval to introduce the bill as the Criminal Law (Amendment) Act (1986), the minister consulted the Nizam-e-Mustafa group in the National Assembly a few days before the scheduled debate on July 9, 1986. The ulema members of the assembly impressed upon Marwat that the omission of the death penalty was unacceptable to them and that there was a consensus (ijma) among various schools of jurisprudence (fiqh) on the death sentence being the only punishment for blasphemy towards the Prophet (may peace be upon him).

Consequently, in his opening remarks while introducing Section 295-C, Marwat proposed to add to the tabled bill the option of the death sentence along with life imprisonment. The ulema’s principal concern in this debate was to ensure that the death penalty was declared the primary punishment if unquestionable guilt was determined. They would accept life imprisonment as a secondary punishment insofar as some doubt continued to exist in a case. The minister, however, sought to keep these as two alternate but equally available options. He argued that if there was some doubt in a case then the legal system would acquit the accused as is the judicial norm, which requires guilt to be proven beyond reasonable doubt. There was clearly some confusion on whether life imprisonment and the death penalty were equal and alternative punishments.

Hamza, while conceding that a law may be required, again felt that the legislation was being passed with undue haste. He argued that such an important law required greater deliberation, public consultation and careful review, as the tabled draft seemed to be vague and easy to misuse. In a country already blighted by sectarian conflict where accusations of kufr and blasphemy were too easily made, such a law, he suggested, would be misused by irresponsible people. The legislation required considered reflection, he said, otherwise it might pass a law that would “make a mockery of ourselves in the world”.

Hamza’s argument for due process, however, was severely criticised. Shah Turabul Haq Qadri, a Hyderabad-based religious scholar who represented Jamiat Ulema-e-Pakistan, a Barelvi party, echoed a common refrain when he responded that public consultation was unnecessary as “there are no two opinions in this matter” — consensus among classical jurists that the penalty for blasphemy was death alone having already settled the debate. Opposition to the death penalty, he said, would mean there would be a “mob” outside the assembly. Publicity of and consultation on the bill might cause delay, result in changes in its draft or may even prevent its passage, he argued. In any case, as Nisar Fatima reiterated, public debate was completely unnecessary. She cited the Council of Islamic Ideology’s report of 1984 to support her argument:

“… any person who intentionally says such words or acts in a manner which directly or indirectly [insults] the status [glory] of the Holy Prophet, he will be liable to death sentence.” (Emphasis added)

Perhaps nothing illustrates the salience and relevance of Hamza’s argument more than this comment. For had Nisar Fatima even momentarily reflected on the difference between her citation and the bill before her, she might have realised that the proposed law was missing the crucial element of “intentionality” — a key criterion in determining culpability in modern criminal law. The draft law theoretically made even an accidental remark, as long as it was interpreted as defiling by “imputation, innuendo or insinuation”, a criminal act potentially punishable by death.

Winding up the session, Marwat put forward the government’s case for retaining both sentencing options, death or life imprisonment, and further stipulated that only Muslim judges should preside over such cases. He rejected one member’s suggestion that punishment for the complainant be incorporated if the allegation was proved false, commenting:

“Sir, we will have to have some trust in judiciary, where such a case will go. He will also be a Muslim, he will also interpret law, he will try the case and fulfil requirements for justice.”

The minister then proceeded to comment that, as a Muslim, he was against anyone who opposed such legislation. In such an instance, he too would be one with the “mob”. If the law was in any way inadequate, he suggested, it could always be amended — deferring the problem and its resolution to the future.

The addition of Section 295-C to the penal code was passed and became law after presidential approval on October 5, 1986. Hamza was the only member who opposed the bill in the National Assembly. Maulana Gohar Rehman concluded the debate by congratulating the members and commenting that the law would put to rest any attempt to implement a secular system in Pakistan and that it would enable the achievement of an Islamic system. Ironies abound — again. A law designed to protect the Prophet (may peace be upon him) has had the consequence of empowering allegations and accusations, many of them false or resulting from misunderstandings, sectarian rivalries and at times, it has to be said, frivolous personal reasons, which, if anything, have contributed to besmirching Islam.

The government files of 1986 record a letter dated July 28 received from one John Wilkinson, MP for Ruislip-Northwood (United Kingdom). He said:

“My only anxiety is that this legislation could be invoked to make life difficult for minorities within Pakistan who have always been an accepted as a part of the overall community, although Pakistan is an Islamic state.”

The files also record the government’s response, sent by an official of the ministry of foreign affairs:

“The undersigned is further directed to state that the law will apply equally to Muslims and non-Muslims and everybody in Pakistan would be required to abide by it. There is already in force in Pakistan a law (section 295A PPC) which was enacted as far back as 1927 and provides for the punishment of insulting and attempting to insult the religion or religious beliefs of any class of citizens. There should therefore be no apprehension that the proposed law when enacted might be used in the manner referred to by Mr. John Wilkinson, MP.”

The foreign office official, like Marwat, demonstrated the confidence, unwarranted as it turned out, that nothing much would change. They both did not consider the fact that the relatively few prosecutions between 1947 and 1986, under the previously existing laws, resulted from judicial circumspection as well as the safeguards inherent in Section 295-A. But the new laws changed these and everything changed with them. The poor and hurried drafting of the new laws has allowed differences of opinion and statements taken out of context to be interpreted as insult and blasphemy — as was the case with Nasir Fatima’s accusations against Asma Jahangir.

The ostensible and immediate cause of Section 295-C is illustrative of the difference between a judiciously designed law and one not fit for the purpose. Under sections 295-A and 298, a case did not exist against Asma for the simple reason that there was no evidence to indicate that she had committed an offence. But perceptions, such as Nisar Fatima’s, came to be privileged under the newly approved Section 295-C. Is it unsurprising, then, that the new law encouraged the practice of accusations that has proliferated, multiplied and intensified over the years? In the new reality created by the law’s use, it is also unsurprising that the trial court judges, contrary to Marwat’s hopes, have been unable to follow the dictates of justice, especially because they have often faced intimidation in blasphemy cases.

In one respect, however, the ministry of foreign affairs official was right. It is not just non-Muslim Pakistanis who have been at the receiving end of Section 295-C and other anti-blasphemy laws. Numerically more Muslims have been charged of committing blasphemy than non-Muslims, though the latter are still disproportionately tried and punished for religious crimes given their tiny presence in the country’s population.

These Zia-era additions to the penal code – hastily conceived as political and symbolic gestures – were barely considered with the kind of responsibility they deserved. The consequences they have engendered leave us with little choice but to ask: are we to continue with the law sponsored by Nisar Fatima and drafted by Liaqat Baloch – one that everyone, Liaqat Baloch and the ulema included, have conceded is “misused” – or should we revert to the one, Section 295-A, that, having borne the brunt of Jinnah’s legal acumen and scrutiny, has the seal of his approval?

A law that recognises the importance of respect for revered and foundational religious figures but one in which the test is the intent behind sacrilegious comment and not the interpreted and perceived hurt of the listener? In short, there is a choice between the Jamaat-e-Islami version or Muhammad Ali Jinnah’s. It is not that the invocation of Jinnah is the automatic answer to all that ails Pakistan, but those who support Section 295-C often use his legal representation of Ilm-ud-din as evidence of his approval for the murder of real and alleged blasphemers. The evidence does not bear this out. Given that Jinnah was directly involved in the drafting of a law, one that was widely understood at the time as necessary for the protection of the honour of the Prophet (may peace be upon him), it is clear that he saw 295-A as maintaining a balance between the rightful protection against offensive speech and a responsibility towards reasonable expression of criticism.

A Senate committee is once again reviewing possible procedural changes to prevent “misuse” of blasphemy laws. Some of the suggestions being discussed include the possibility of harsher sentences for those making false accusations. But given the emotive nature of the issue, people’s attachment to the Prophet (may peace be upon him) and the law’s capacity to generate and mobilise protests in its defence, few are willing to consider the case for making any substantive changes to it. Yet, if, as the Supreme Court observed in the case of Salman Taseer’s murderer, Mumtaz Qadri, the “majority of blasphemy cases are based on false accusations stemming from property issues or other personal or family vendettas rather than genuine instances of blasphemy” then more than just the procedural aspects of the law need to be reviewed.

If the intention of the legislators who approved Section 295-C back in 1986 was to ensure that, as Mir Nawaz Khan Marwat said, “… in future no one will dare commit blasphemy of the Holy Prophet”, then the evidence of three decades is unequivocal. It has failed. If anything, it has resulted in the multiplication of real and perceived blasphemous content. Every accusation and allegation, whether a genuine one or a false one resulting from misperceptions, misunderstandings, socioreligious differences or plain malice, gets repeated and reproduced in newspapers, judicial documents, digital media and in individual conversations.

There is a direct causal link between the law and the incidence of blasphemy. This may seem counter-intuitive but the evidence is compelling. The available data indicates there were less than ten cases of alleged blasphemy between 1947 and 1986, before the law was passed, whereas there have been over 1,500 allegations in the subsequent 30 years. The common argument by the law’s proponents that without this law people would be free to blaspheme against the Prophet (may peace be upon him) is mistaken as Section 295-A has adequate provisions for their trial and punishment.

In the passage of both the recently enacted Election Reforms Amendment Bill and Section 295-C back in 1986, we can see a rush to legislate without proper democratic debate, reflection and accountability. While adhering to minimal democratic procedures, these enactments have been anti-democratic actions that did not allow for a substantive ethic and ethos of democracy, one that shows respect for difference and due consideration and reflection to ensure our obligation to justice. The parliamentarians of 30 years ago invoked the spectre of the “mob” to justify their actions, but it is the law they passed – one that empowered and encouraged cases resulting from perceived harm to sentiments – that has led directly to Khadim Hussain Rizvi and the accusations against and attacks on parliamentarians themselves.

Research contribution by Peter Jacob of Centre for Social Justice, Amal Zaman and Sohail A Warraich

This was originally published in the Herald's February 2018 issue. To read more subscribe to the Herald in print.