An Indian Reads the Constitution of Pakistan

I scanned (not machine based) the Constitution of the Islamic Republic of Pakistan [As modified up to the 30th March, 2017] today. I just wanted to see how an Islamic state deals with its minority, at least in theory. What I read there was not only interesting but also worthy of attention and praise. The minds that framed the constitution wanted to give the best possible most democratic system to the nation and to find its roots in Islam. Their wish was to remain faithful “to the declaration made by the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, that Pakistan would be a democratic State based on Islamic principles of social justice”. The preamble makes it clear:

 

… it is the will of the people of Pakistan to establish an order;

Wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed;

Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah;

Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;

Wherein shall be guaranteed fundamental rights, including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;

Wherein adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; [Italics mine]

 

 It’s a good piece, but the parts I have italicized deserve a second reading.

  • Tolerance, social justice etc. have been guaranteed in the “holy land” based on the guiding light of the Holy Quran.
  • Muslims will order their lives following the one book.
  • The constitution guarantees provisions for saving minority religion and culture and safeguard their legitimate
  • It also guarantees the fundamental rights including freedom of thought, faith; worship etc. albeit subject to law and public morality.

 

In the preamble itself one can read its various self-contradictions.

 

  • Words like “democracy, freedom, equality, tolerance and social justice” are from English language and belong to the stream of thought that developed since the Enlightenment in the West. Any attempt to trace them backward into a book that belongs to the seventh century A.D. will not get streams of thoughts that lead to the modern Enlightenment concepts. So, basing the interpretation of English words on an Arabic Quran is doubly irrational, as they are two different languages, originating in two different cultures and times.
  • The single assertion right in the beginning of the constitution that Muslims (i.e. each Muslim) will live life as Quran spells it out, makes two things clear. First, that Muslims are homogeneous in molding their life on what Quran stipulates. And then, no dissent will be tolerated.
  • Safeguarding the legitimate interests of the minority underlines the idea of legitimacy that the state gets to define. It simply means that an element of subjectivity has been inserted so that the state gets to shape the lives of the minority in any way it pleases to.
  • The fundamental rights are guaranteed with a proviso. Even here the element of subjectivity and interpretation are introduced, giving the state final decision making power. Because of the elements of subjectivity, the decisions made by the state will be virtually unchallengeable in various Pakistani courts of law, as they have to uphold the constitution and follow it too. There’s a vicious cycle here, right in the preamble of the nation built on the logic of religious antagonism.

 

After reading the preamble I went through the content and read the sections and articles I was interested in. The second article declares that “Islam shall be the State religion of Pakistan”. The twentieth article begins with the proviso “Subject to law, public order and morality”:

(a) every citizen shall have the right to profess, practice and propagate his religion; and

(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.

As I underlined earlier, in practice the proviso in the beginning actually nullifies the good intent. History proves me right.

 

The twenty-first article prohibits a practice that comes directly from the history of various Islamic reigns, even in India. It’s actually against jajiya:No person shall be compelled to pay any special tax the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own”.

 

The very next article is relevant to the contemporary India. I don’t know how Pakistan managed to keep the promise made, but if it did, then it ensured that no “person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own”.

I have taught in public schools in India and have known others who have taught or studied in schools run by specific religious organizations. I have seen many students attending the ceremonies of dominant community, participating in ritual steps and reciting their mantras. A secular India has failed to do what an Islamic Pakistan promises in its twenty-second article.

 

The constitution assumes that all Muslims of Pakistan will follow the Holy Quran. There’s no alternative for them but to follow the “Islamic way of life”. Again, high degree of subjectivity can be found in the language of the thirty-first article:

 

(1) Steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to the Holy Quran and Sunnah.

(2) The State shall endeavour, as respects the Muslims of Pakistan,—

(a) to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran;

(b) to promote unity and the observance of the Islamic moral standards;

 

 The first clause posits that there’s a definite meaning of life that a whole nation of Muslims may be taught through a couple of great books. It presumes that the teachers and the students will reach same conclusion regarding life and living, time and again, following the same set of instructions. It also presumes that the level of understanding of all Muslim learners will be equivalent. If it does not presume that, there’s no way a whole nation can be made to lead a holy life. The reality of Pakistan shows it clearly. 2.b posits that there’s a definite moral standard that’s Islamic. There are two hidden assumptions here, that there’s a non-Islamic moral standard and that somehow it is not good for Muslims.   

 

 The thirty-sixth article makes a very theoretically elevating claim: “The State shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services”. The minority in Pakistan is persecuted and marginalized. There’s no way that they are given their due representation in various state services.

 

The one thing that I loved in the constitution of Pakistan, and that is sadly absent in Indian constitution is the provision of the “Vote of no-confidence against Prime Minister” in article ninety-five. There’s also a “Vote of no-confidence against Chief Minister” in article one hundred and thirty-six. These two provisions are in addition to one found in Indian Constitution, that of the Removal [or impeachment] of President. The details of article ninety-five are as follows:

  

(1) A resolution for a vote of no-confidence moved by not less than twenty per centum of the total membership of the National Assembly may be passed against the Prime Minister by the National Assembly.

(2) A resolution referred to in clause (1) shall not be voted upon before the expiration of three days, or later than seven days, from the day on which such resolution is moved in the National Assembly.

(3) A resolution referred to in clause (1) shall not be moved in the National Assembly while the National Assembly is considering demands for grants submitted to it in the Annual Budget Statement.

(4) If the resolution referred to in clause (1) is passed by a majority of the total membership of the National Assembly, the Prime Minister shall cease to hold office.]

 

Articles 95 and 136 are definitely missing from the constitution of India. Of course they can be misused, but there absence means loss of all accountability at the highest offices of either country or state. No democracy can afford it, and India has suffered a lot due to the complete lack of control over elected heads of nation and states.

 

The Constitution of the Islamic Republic of Pakistan has all the elements of an adequate code but it suffers from its basic premise: a state run on the basis of a religion. Somehow my modern (read Western educated) mind cannot accept this. I am a firm believer in a non-Indian and non-Nehruvian kind of secularism for states. The moment state and religion are mixed, a disaster is born. Before we go looking for another case of such mixing and subsequent disaster, we need to look at a modern, democratic, secular constitution, i.e. the constitution of India.

  

The Constitution of India (As on 9th November, 2015), declares boldly and clearly in its preamble:

 

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation…

 

India is a secular state, and at least theoretically, keeps the running of the state away from religion. I only wish that the spirit of our constitution was followed after 1950. Somehow, the politicians found ways to circumvent the written and unwritten texts and wrote India in their own image. The twenty-eighth article covers the ground somewhat similar to the ground covered by articles 20-22 in the Constitution of Pakistan:

 

(1) No religious instruction shall be provided in any educational institution wholly maintained out of State

funds.

(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.

(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.

 

The first clause of the thirtieth article is a short and simple, “All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice”.

 

The forty-fourth article is committed to the cause of equality:

“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”.

This article, along with article 370 has been invoked umpteenth number of times by one party or the other in the recent past. They are polarized over the actual application of the spirit of article 44. As religion has been poiliticized in India, justice is not equal for all. Even in the court of law, Hindus and Muslims are treated differently in a secular nation.

 

Article 51A is about the fundamental duties of an Indian and some of them need to be quoted in full:

 

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

 

Although contemporary India is far from realizing the goal, the very commitment to the promotion of harmony while acknowledging the diversity, including religious, is something theoretically impossible in an Islamic Republic run on the basis of lines from a set of books or their interpretations. The composite culture of India stands strongly against the monologic cultural stream of Pakistan. Finally, there’s no way the constitution of Pakistan can allow any attempt at reforming the directive force behind it. How can the Holy Quran or allied texts be reformed? After reading sections of the Constitution of Pakistan, I felt that Dr. Ambedkar et. al. had done a wonderful job, until I read M. S. Golwalkar’s Bunch of Thoughts:  

 

Our Constitution too is just a cumbersome and heterogeneous piecing together of various articles from various Constitutions of Western countries. It has absolutely nothing which can be called our own. Is there a single word of reference in its guiding principles as to what our national mission is and what our keynote in life is? No! Some lame principles from the United Nations Charter or from the Charter of the old League of Nations and some features from the American and British Constitutions have been just brought together in a mere hotchpotch. 

It sent me searching for the directive principles and fundamental rights he had in mind. More about that in my next blog.

 

 

 

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