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Home Critical Analysis/Archives ERROR AT THE APEX
In the Supreme Court
Dealing with the centenary celebration case where the order of the District Magistrate had been challenged, the minority judgment held:
“There is no authority possessed by the Assistant Commissioner, the District Magistrate, the Resident Magistrate or the Home Department of the Government to extend indefinitely till further orders an order passed under Section 144, Cr.P.C. This part of the order recorded by the Resident Magistrate referring to an order by the Assistant Commissioner had to be declared as without lawful authority and of no legal effect. None of the counsel appearing at the hearing, not even the Advocate-General, has been able to sustain this order recorded by the Resident Magistrate. Hence, the Appeal (Civil Appeal No. 412 of 1992) is allowed to this extent with no order as to costs.” [4]
Dealing with the Constitutional question and provisions relevant to the subject and taking up the arguments of the Government on the question of religious freedom guaranteed by the Article 20 vis-à-vis the Islamic provisions, the minority view observed:
”……an argument was advanced that the other provisions of the Constitution should all be read, interpreted and applied as if they are additionally subordinate to and controlled by injunctions of Islam. Even the Fundamental Rights invoked in these appeals and the others not in issue should also be interpreted as if subordinate to Injunctions of Islam.” [5]
Repelling this argument the minority view held that Article 2A was not supra Constitutional and did not have an overriding effect. The learned judge observed:
“The effect of introduction of Article 2A of the Constitution and its becoming a substantive provision of the Constitution has been considered at great length by this Court in Hakim Khan and 3 others v. Government of Pakistan through Secretary Interior and others (PLD 1992 SC 595). Its effect on the other Constitutional provisions and as a controlling and supervening provision has been considered as per Dr. Nasim Hasan Shah, J. (now the Chief Justice) in the following words:
“This rule of interpretation does not appear to have been given effect to in the judgment of the High Court on its view that Article 2A is a supra Constitutional provision. Because, if this be its true status then the above-quoted clause would require the framing of an entirely new Constitution. And even if Article 2A really meant that after its introduction it is to become in control of the other provisions of the Constitution, then most of the Articles of the existing Constitution will become questionable on the ground of their alleged inconsistency with the provisions of the Objectives Resolution… Thus, instead of making the 1973-Constitution more purposeful, such an interpretation of article 2A, namely that it is in control of all the other provisions of the Constitution would result in undermining it and. pave the way for its eventual destruction or at least its continuance in its present form… The role of the Objectives Resolution accordingly in my humble view, notwithstanding the insertion of Article 2A in the Constitution (whereby the said Objectives Resolution has been made a substantive part thereof) has not been fundamentally transformed from the role envisaged for it at the outset; namely that it should serve as beacon light for the Constitution-makers and guide them to formulate such provisions for the Constitution which reflect ideals and the objectives set forth therein… In practical terms, this implies in the changed context, that the impugned provision of the Constitution shall be corrected by suitably amending it through the amendment process laid down in the Constitution itself.”
As per Shafi ur Rahman, J., it was considered as hereunder:
“The provisions of Article 2A were never intended at any stage to be self-executory or to be adopted as a test of repugnancy or of contriety. It was beyond the power of the Court to have applied the test of repugnancy by invoking Article 2A of the Constitution for striking down any other provisions of the Constitution (Article 45).” [6]
Dealing with the argument raised on behalf of the Federation, that the fundamental right guaranteed by Article 20 was itself subject to law and that Ordinance XX of 1984 was a law for the purposes of Article 20 and therefore would hold good notwithstanding any apparent or substantial conflict with this provision, the minority view held that the supreme court decision in the case of Jibendra Kishore Achharyya (PLD 1957 SC 9 AT page 41) had adequately dealt with that argument. The minority judge quoted a lengthy extract from that judgment. A small portion of that excerpt is reproduced below for a ready and quick grasp of the issue at hand. The Supreme court had in the excerpt reproduced from the Jibendra Kishore’s case held:
“The very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law.” [7]
Dealing with Section 298B relating to restriction on Masjid and Azan, the minority view held:
“Historically this has been shown in the Lahore High Court case to be a tenet or a practice of Ahmadis or Qadianis not of recent origin or device and adopted not with a view to annoy or outrage the feelings and sentiments of non-Ahmadis and non-Qadianis. Being an essential element of their faith and not being offensive per se prohibition on the use of these by them and making it an offence punishable with imprisonment and fine violates the Fundamental Right of religious freedom of professing practicing and propagating and of Fundamental Right of equality inasmuch as only Qadianis or Ahmadis are prevented from doing so and not other religious minorities. It is not the “Azan” or the naming of the “Masjid” which has been made objectionable by law but doing of these by Ahmadis or Qadianis alone.” [8]
About the prohibition on preaching by Ahmadis and inviting others to their faith the minority view held that the ban “would be violative of fundamental rights of religious freedom and of equality and of the speech in so far as they prohibit and penalize only the Ahmadis and Qadianis from preaching or propagating their faith by words either written or spoken or by visible representation. Invitation to one’s faith when it is not accompanied by any other objectionable feature cannot be condemned…”
Dealing with the criminal cases involving conviction for wearing the badges of Kalima Tayyeba the minority view held that:
“This conviction is defective because in view of the discussion and findings already recorded for an Ahmadi to wear a badge bearing ‘Kalima Tayyeba’ inscribed on it does not per se amount to outraging the feelings of Muslims nor does it amount to his posing as Muslim.” [9]
The minority further held:
“The exhibition or use of ‘Kalima Tayyeba’ correctly reproduced, properly and respectfully exhibited cannot be made a ground per se for action against those who use ‘Kalima Tayyeba’ in such a manner. If for ascertaining its peculiar meaning and effect one has to reach the inner recesses of the mind of the man wearing or using it and to his belief for making it an offence then the exercise with regard to belief and the meaning of it for that person and the purpose of using and exhibiting the ‘Kalima Tayyeba’ would be beyond the scope of the law and in any case it will infringe directly the religious freedom guaranteed and enjoyed by the citizens under the Constitution, where mere belief unattended by objectionable conduct cannot be objected to.” [10]
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