The controversy before the Supreme Court related to the fundamental right of religious freedom, guaranteed by the Constitution of Islamic Republic of Pakistan. In the Constitution of Pakistan, the right of religious freedom has been assigned a greater sanctity and has a higher dignity than the other fundamental rights because Article 20 of our Constitution cannot be suspended even under emergency declared under Article 232 of the Constitution. The right under Article 20 is, therefore, a right which cannot be derogated.

Ordinance XX was challenged before the Supreme Court of Pakistan, both, as an Ordinance on the face of it and in its application, which had to be examined on the internationally recognized judicial principles.

The judgment of the Supreme Court itself indicates that it was not seriously controverted that Ordinance XX did violate the fundamental rights of religious freedom guaranteed by Article 20 of the Constitution of Islamic Republic of Pakistan. The majority judgment validated the Ordinance as being within the permissible limitations and on the ground that the fundamental right of religious freedom was, according to Pakistan Constitution, “subject to law”. In doing so the majority opinion has obviously overlooked the fact that the concept of permissible limitation of the human rights is referable to Article 29 of the Universal Declaration Of Human Rights, which provides that the exercise of this right and freedom shall be subject only to such limitations as are determined by law. The clause (2) of Article 29 of the Universal Declaration Of Human Rights reads:

It is now universally recognized and in a study carried out by the United Nations the special rapporteur also observed that in order to be legitimate such limitations must satisfy two essential criteria: it must be determined by law and it must be enforced solely for one or several of the purposes mentioned in the Article. ² But the law itself should not be unduly restrictive of the rights of the freedom of thought, conscience and religion.’ ³ ‘Such limitations should not be of such a nature as to sacrifice minorities on the altar of majority, but to ensure greater measure of freedom for society as a whole.’ ⁴ ‘No doubt the balance between the limitations and the overriding importance of the religious freedom has to be maintained. Genuine and legitimate aspirations and apprehensions of the majority group and its concerns about social cohesion must no doubt be given due consideration. It should be apparent, however, that in evaluating this particular aspect of the attitude of the State and of the predominant group towards a minority, the greatest caution must be observed; for, while the maintenance of social cohesion may be a legitimate aspiration, it has only too often been invoked by States and by predominant groups within States to justify tyranny and persecution’ ⁵

In keeping with these International standards the Supreme Court of Pakistan has consistently held that a fundamental right cannot be abridged or taken away by law, though the exercise of the right may be regulated under certain circumstances. The words “subject to law” in Article 20 has been interpreted by the Pakistan courts to permit regulatory measures and not to deny the fundamental right itself. Jibendra Kishore Achharyya is the leading case and lays down binding law on this point. In that case the fundamental right of religious freedom was in issue and Mr. Brohi had contended that the rights were “subject to law” and could therefore be taken away by law. The Supreme Court of Pakistan repelled that contention and observed:

This observation of Chief Justice Munir sounds very much like Justice Johnson in Fletcher versus Peck that the “state cannot revoke its own grants”, and echo the observations of Justice Frankfertin in Harry Bridjes versus State of California that “Bill of Rights is not self-destructive.” ⁷ In Jibendra Kishore Achharyya the Supreme Court of Pakistan further observed that:

In Abdul Ghani versus Islamic Republic of Pakistan, M.R. Kiani, J. carried the concept a little further and referring to observations of the Supreme Court in Jibendra Kishore Achharyya observed:

This interpretation of the phrase “subject to law” has been consistently followed by the Pakistan Supreme Court in other cases as well. Dealing with a question of shia religous procession in Syed Sarfraz Hussain Bukhari versus the District magistrate Kasur the Supreme Court of Pakistan followed the rule that the law did not envisage a total prohibition or outright refusal for all times to take out processions to participate in religious ceremonies or observances. The court held that authorities had only power to regulate the processions with regard to route, timing, halting places, the accomplishments and the conduct of the procession itself. The court held that such control and regulatory conditions must have the sole object of avoiding breach of peace. This power could not be used to completely prohibit the assembly or procession. ¹⁰

These concepts applied by the Pakistan Supreme Court may be usefully compared with American concepts. When we study the American experience on the subject we find that in their search for a standard to ascertain and determine the permissible limits, the American Supreme Court has at different times applied “the secular regulation”, “clear and present danger”, “interest weighing” and “neutral purpose” standards.

The “secular regulation” test was applied by the American supreme courts in cases touching on religious freedom. The rule meant that in the prosecution of its secular objectives the state may make laws and any objection to such a law on the ground that it violates some individuals religious belief should not be entertained. But in applying this principle the courts always insisted that the law must be secular in nature. The courts however insisted that the power to regulate must be “so exercised as not, in attaining a permissible end unduly infringe the protected freedom.” ¹¹

However, the secular regulation rule was dropped after sometime and it became defunct because it left the door open for a great deal of disguised religious persecution and because a general regulation can be easily framed so as to deal with almost any unpopular group. Another rule known as the “clear and present danger” was evolved. Though the test of clear and present danger was evolved and insisted upon, Potential or threatened danger was never considered as a ground for limiting exercise of religious freedom. But even while applying the test of clear and present danger the courts in the U.S. did not refuse to examine the issue whether the clear and present danger did in fact exist. The legislative declaration was held to create merely a rebutable presumption.’ ¹² Then came the “interest weighing” approach. Lately the concept of “neutral purpose” has been evolved. About the American case law cited by the Supreme Court of Pakistan in Zaheer ud Din a more detailed analysis will be taken up in the next chapter.

Ordinance XX is neither covered by the concept of secular regulation nor by the concept of “clear and present danger” nor is it “a neutral law only incidentally touching the religious belief.” The law is clearly meant to restrict and punish the religious belief and practices of Ahmadis only. The very title of the law speaks of its religious character. The law is entitled anti-Islamic activities of Qadianis and Lahori Groups Prohibition and Punishment Ordinance.

Reverting to the Pakistani case law, the Jibendra Kishore Achharyya, which represented the basic law on the interpretation of “subject to law” was cited at the bar during the hearing of Zaheer ud Din. It was a unanimous judgment of five judges. The majority opinion in Zaheer ud Din did not even advert to this case in the evaluation of concept of “Subject to law”. It could not have been overlooked. Shafi-ur-Rahman J. relied on this judgment and quoted extensively from Jibendra Kishore Achharyya. The majority opinion starts with the observation “I have had the benefit of going through the draft judgment proposed to be delivered by my learned brother Shafi ur Rahman J. but with respect I do not agree with the opinion of my learned brother.” With this benefit of having gone through the minority opinion it is not easy to assume that Jibendra Kishore Achharyya was ignored only by an accidental omission. It would have been more in keeping with the practice of the Supreme Court either to dissent with the judgment after full consideration and overrule it as bad law or to refer the case to a larger bench. None of these two courses was adopted by the majority opinion. On this interpretation of “subject to law”, therefore, the position of Pakistan Supreme Court is that as against the judgment of 5 judges in Jibendra Kishore Achharyya, the case of Zaheer ud Din represents another view of presumably 4 judges. It may be even less. The majority opinion on this question is therefore not a binding law. It is neither in conformity with the internationally recognized juridical principles nor with Pakistani case law on the subject.