The Lahore High Court, in its decision in Imran Hameed etc v. The State has finally ruled on an issue that has for long excited the imagination of religious bigots in our society: the question of the architectural design of Ahmadi places of worship.
There have been countless incidents in Pakistan, increasingly over the last few years, where Ahmadi places of worship have been desecrated and demolished by miscreants and the police alike. These miscreants and police find the basis for their actions in Sections 298-B and 298-C of the Pakistan Penal Code, which state the following:
298-B
(1) Any person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name who by words, either spoken or written, or by visible representation-
(a) refers to or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as "Ameer-ul-Mumineen", "Khalifatul- Mumineen", Khalifa-tul-Muslimeen", "Sahaabi" or "Razi Allah Anho";
(b) refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as "Ummul-Mumineen";
(c) refers to, or addresses, any person, other than a member of the family "Ahle-bait" of the Holy Prophet Muhammad (peace be upon him), as "Ahle-bait"; or
(d) refers to, or names, or calls, his place of worship a "Masjid";
shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
(2) Any person of the Qaudiani group or Lahori group (who call themselves "Ahmadis" or by any other name) who, by words, either spoken or written, or by visible representation refers to the mode or form of call to prayers followed by his faith as "Azan", or recites Azan as used by the Muslims, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
The priestly class in Pakistan wanted Ahmadis to disavow being Muslims, a demand that would hit at the fundamental right to religious freedom
298-C
Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith:
Any person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), who directly or indirectly, poses himself as a Muslim, or calls, or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or in any manner whatsoever outrages the religious feelings of Muslims shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.
Introduced by General Zia ul Haq, these provisions aim at circumscribing the religious freedom of the Ahmadi community in Pakistan.
In 1974, Pakistan's parliament had taken the extraordinary step of declaring Ahmadis Non-Muslim for the purposes of law and Constitution. Not content with this, the priestly class in Pakistan wanted Ahmadis to disavow being Muslims, a demand that would hit at the fundamental right to religious freedom.
In 1984, General Zia ul Haq made the Objectives Resolution a substantive part of the Constitution with one crucial omission. The original resolution read: Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures. The word "freely" was dropped. This was done specifically to promulgate Ordinance XX of 1984, which introduced Sections 298-B and 298-C to the Pakistan Penal Code. Objectives Resolution was made a substantive part specifically to provide a legal basis for Islamisation in Pakistan, but in its original form, it would not allow for curtailment of religious freedom of any religious minority, and since Ahmadis had been constitutionally declared a minority, they were legally entitled to the specific protections of the Objectives Resolution i.e. the right to "free profess and practise their religions".
In 2010, the 18th Amendment restored the word "freely" to the Objectives Resolution. In any event, Article 20 of the Constitution of Pakistan is more expansive. It speaks about the right to propagate as well. On the face of it, Section 298-C is a clear violation of Article 20 as well as the Objectives Resolution. Nevertheless, it was upheld by the Supreme Court in Zaheeruddin v. State in a highly problematic ruling that all but abolished religious freedom in Pakistan.
The Constitution declares Ahmadis to be a minority. As a minority, therefore, the Constitution upholds their right to "freely" profess and practise their faith and develop their cultures
What this meant was an endless new debate on what kind of architecture Ahmadis can use for their places of worship. This is where the Lahore High Court's decision in the present case is so important. It makes some very important points:
The earliest Muslim mosques did not have minarets, and that the incorporation of minarets as an architectural feature was borrowed either from the Greeks or Babylonians.
The provisions do not mandate the razing of structures built before the promulgation of 1984 ordinance i.e. 298-B and 298-C, and therefore, all Ahmadi places of worship built before 1984 are protected structures which cannot be demolished or altered.
The petitioners could not be punished for architecture crafted 100 years ago.
This is a welcome development for a much-maligned and persecuted community that has been at the receiving end of both state-sponsored persecution and societal intolerance. It underscores the importance of upholding religious freedom and protecting the rights of Ahmadis, providing some measure of relief to a community that has long been marginalized and targeted. To this end, the judgment relies on the Supreme Court's judgment in the Tahir Naqqash case, which states the following:
"Article 260(3) of the Constitution, though it declares the Ahmadis/Qadianis as non-Muslim, it neither disowns them as citizens of Pakistan nor deprives them of their entitlement to the fundamental rights guaranteed under the Constitution. The Constitution treats, safeguards and protects all its citizens equally, whether they are Muslims or non-Muslims. Article 4 of the Constitution is an inalienable right of every citizen, including minority citizens of Pakistan, which guarantees the right to enjoy the protection of law and to be treated in accordance with law."
This is significant. Pakistani Ahmadis are citizens of Pakistan, and as citizens, they are entitled to the same fundamental rights as other citizens of Pakistan. Furthermore, the Constitution declares Ahmadis to be a minority. As a minority, therefore, the Constitution upholds their right to "freely" profess and practise their faith and develop their cultures.
All in all, the judgment is the best you are going to get in a society riven with fear and held hostage by reactionary and bigoted elements. Both the Lahore High Court's judgment in the instant matter and the Supreme Court's judgment in Tahir Naqash are important first steps to righting the manifold wrongs committed against the Ahmadi community in Pakistan. It would have been better if the honourable judge had referred to the community as Ahmadis and not Qadianis, but that sensitivity is still some time away. Nevertheless, under the circumstances, one can appreciate this judgment as the first step towards the restoration of dignity to a community which has been at the receiving end of some of the worst persecution in the world.