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Home Critical Analysis/Archives ERROR AT THE APEX
ERROR AT THE APEX
The Error
VAGUENESS
The majority opinion did not dispute the proposition that if a law goes beyond the frontiers that are fixed for a legislature or where a law infringes a fundamental right, or a law, particularly criminal, is vague, uncertain or broad, it must be struck down as a void law, to the extent of the objection. The court however was of the view that “appellants have not shown or demonstrated as to where is that vagueness. In order to succeed, the appellants ought to have shown that the constituents of the offence, as given in the law are so indefinite that line between innocent and condemned conduct cannot be drawn or there are attendant dangers of arbitrary and discriminatory enforcement or that it is so vague on the face of it that common man must necessarily guess at its meaning and differ as to its application.” [26]
The court completely overlooked the fact that the appellants had submitted a long list of the day-to-day practices involving normal behaviour of Ahmadis, which had been made subject to the impugned law.
Given below is an abstract of cases indicating the nature of allegations for an offence under section 298-C PPC which was produced before the Supreme Court at the hearing of Zaheer ud Din.
Total no. of cases under 298-C
1,790
Break-up:
1.
On offering daily prayers
84
2.
On the use of kalema Tayyeba
691
3.
On the allegation of calling Azan
36
4.
On the allegation of preaching
251
5.
On the allegation of posing as Muslim on various grounds
676
6.
On the allegation of using epithets and verses
52
Break up of various acts brought under the Mischief of “Posing”
1.
Writing Bismillah on Invitation card for a marriage;
2.
Sending an Eid card with a Hadith of the Holy Prophet.
3.
Writing Bismillah on the face of a shop;
4.
Displaying a calendar bearing Iftar and Sehr timings and prayers for Iftari and Sehri;
5.
Writing Assalam-o-Alaikum and Inshallah on an Invitation Card for inaugural ceremony of a shop;
6.
Using the word “Iftar Party” on an invitation card;
7.
Writing of Quranic verse on a Neon sign;
8.
Writing Kalema on a Tombstone;
9.
Wearing a ring with an inscription of “Alaisallah-o-be Kafin Abdaho
10.
Writing a Qur’anic verse “Nasrun Min Allah” on a sign board;
11.
Displaying a calendar having the Qur’anic verse saying “It is better for you if you fast”.
12.
Greeting with Assalam-o-Alaikum
13.
Displaying bunting on the occasions of Miladun Nabi
14.
Reciting Takbirat in the Eid Prayers;
15.
Reciting Holy Quran in a loud voice;
16.
Centenary celebrations;
17.
Using the word Marhooma in an obituary notice;
18.
Offering Janaza prayers;
19.
Having Bismillah printed on a cash memo;
20.
Reciting Darood on loud speaker;
21.
The use of world Aitekaf in an application for leave during the month of Ramazan in order to sit in Aitekaf.
In view of this recorded submission of the appellants it could not be said that the appellants had not shown the vagueness of section 298-C in its application. The Ordinance XX had been challenged on its face and in its application. On the face of it the ordinance clearly and unmistakably denied all the three rights guaranteed under Article 20 of the Constitution i.e. right to profess, right to practice, and right to propagate. The right to profess and practice were prohibited by the clear text and letter of the ordinance which made the calling of the faith as Islam and preaching and propagating punishable. The practice of faith was denied by an extended application of the word “pose”. The manner of application was clearly demonstrated by reference to the cases registered. Not only were the ordinary day to day innocent spontaneous social behavior and etiquette brought under the mischief of law but also admitted religious practices of prayers, sacrifices, fasting and funerals were brought under the ambit of 298-C by applying the word “pose”. There can be no worse application of a law so vague. It was clearly a case of the law being “overbroad” and indefinite so as to leave the appellant constantly guessing as to what conduct will constitute an offence. The application was clearly arbitrary and discriminatory in its enforcement. There was no line between the condemned and innocent acts. Yet the law was validated. This is a clear departure from the recognized cannons of interpreting criminal statutes.
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