Due process – 10 Sep 2022
`In the circurnstances of the present case, she appears to be a person, in the words of Shakespeare`s King Lear, `rnore sinned against than sinning`.` -Justice Asif Saeed Khosa WI T H nearly 500,000 Pakistanis leaving the country for greener pastures each year, those who continue to reside in Pakistan are often confronted with the limits of their optimism as nepotism, misgovernance, and the conflagration of violent extremism threaten to push us over the edge of the precipice. Nonetheless, there are certain moments, every now and then, that continue to reinforce the belief that a democratic and pluralistic society where the rule of law reigns supreme and where the rights of women, minorities, and other marginalised segments are protected may not elude us forever. One such moment recently came in the form of the decision rendered by a two-member bench of the Supreme Court comprising Justices Qazi Faez Isa and Syed Mansoor Ali Shah in Salamat Mansha`s case.
Facts: Salamat Mansha`s case involved a Christian man who was charged for of fences under Section 295 of the Pakistan Penal Code, 1898, which pertains to offences against religion and hurting the religious sensitivities of others. The complainant had stated that he along with four other friends had visited the Model Town Park where the accused was engaged in preaching Christianity. The sessions court and the high court had both rejected the accused`s bail, thus bringing the appeal to the Supreme Court.
Scope of the judgement: The judgement in the Salamat Mansha case does not question the established principles underlying our religious jurisprudence nor does it challenge the validity or constitutionality of Section 295, PPC. To the contrary, the judgement merely highlights how the conflagration of religious intolerance irrevocably and irreparably jeopardises the right to fair trial and due process of a person charged with an offence under Section 295, PPC. The judgement moreover iterates that our fidelity to fundamental rights and constitutional safeguards should not submerge merely due to an accused being charged with an of fence that we feel most profoundly about.
Due process and fundamental rights: The preceding decade has been characterised by an alarming increase in the propensity to weaponise religion against political movements. As political parties align themselves with sectarian groups and banned outfits during electoral campaigns, the latter are able to maintain their stranglehold over the media and shape the dominant narrative.
Unsurprisingly, those who question theirmonopoly over religion and their proclivity to use violence are muzzled through the weaponisation of laws relating to offences against religion and exciting the passions of those susceptible to their propaganda. The right to due process and f air trial of a person accused of such crimes is, thus, trampled under the weight of a mob that lusts after blood while the state remains a silent spectator as consutudonal guarantees are flouted at the altar of political expediency.
Cognisant of the weaponisation of such laws to settle personal scores, the judgement observes that allegations are often `levelled to settle personal scores and cases are also registered for mischievous purposes or on account of ulterior motives` as mobs arrogate to themselves the function of the state and pronounce judgements even before the courts have declared an accused to be guilty.
Dilating on the prosecution`s case, the court held that while the accused was stated to have uttered offensive words in a public park, no one from the park except the com-plainant and his friends testified against him nor did anyone including the complainant make a video of the accused`s utterances despite the complainant and his friends being in possession of their phones.
Further, while the accused had been incar-cerated for over a year and had his phone examined, no incriminating evidence could be gathered against him. Most importantly perhaps, the court observes that `oftentimes righteous zeal, moral outrage, and/or indignation also steers the prosecution to a pre-determined destination by eclipsing the general standard of proof in criminal cases; that is, beyond reasonable doubt`.
As repression and intolerance seeps across our society, the judgement serves as a reminder that the court would not remain a spectator as fundamental rights are brazenly violated unlike neighbouring Indiawhere the judiciary has capitulated before its f ascist regime`s Hindutva project, as evident from the Karnataka High Court upholding the hijab ban in educationalinstitutions and the Supreme Court of India condoning the destruction of the Babri mosque.
While we continue to remain on the edge of the precipice, the judgement in Salamat Mansha`s case may have averted our impending f all. The polis may not be falling apart after all! The writer is a lawyer.