PAKISTAN’s constitution recognises the right to freedom of religion or belief as a fundamental right of the citizens. All citizens are equal before the law and are entitled to equal protection of the law. Our courts have attempted to protect the religious right of minorities, albeit, frequent abrogation and suspension of fundamental rights in Pakistan. In 2019, the Lahore High Court dealt with the issue of conversion of a minor girl, namely, Pumy Muskan, from Christianity to Islam and her illegal custody in a constitution petition (Nasira v. Judicial Magistrate etc.).
The petitioner was a Christian lady and the respondents employed her 14-year-old daughter for the household job. When the petitioner went to meet the minor daughter, the respondents conveyed to her that she was in another city and having accepted Islam, she did not want to meet her mother. The petitioner then approached the police but of no use. However, upon the request of a Christian community member, the police produced the minor girl before the Magistrate and stated that the minor girl had embraced Islam. The police further stated that due to tender age of the minor girl, she ought either to be delivered to her mother or shifted to shelter homes. The Magistrate recorded the statement of the minor girl and sent her in a shelter home.
The petitioner was denied her right by the Superintendent of shelter home to meet with her daughter. The petitioner further learned that the Magistrate ordered the release of her daughter from shelter home, and the Superintendent handed the custody of the minor girl again to the respondents. The petitioner then filed a writ petition.
The counsel for the petitioner argued that the respondents had converted the minor girl to Islam by way of enticement and undue influence. The minor girl could not take a well-versed judgement to alter her faith; and even if she had accepted the Islam (under coercion) the same was of no legal value. He stated that even if the change of faith of the minor is acknowledged and pronounced legal, her custody cannot be refused to her mother. He maintained that the respondents had disregarded the injunctions of Islam and the law of the land while converting the minor girl from Christianity to Islam. Thus, the custody of the minor girl with the respondents be declared illegal and she may be reverted to her mother. The Assistant Advocate General, Punjab, conceded to the submissions of the learned counsel for the petitioner.
The respondents opposed the petition. They asserted that the minor girl had accepted Islam with her free will and choice being influenced by the teachings of Islam and had memorized a number of verses from the Quran within a short span of time. Thus, the counsel submitted, giving custody of the minor girl to her mother would put her life and security at great risk and would be unlawful.
The learned amicus curiae pointed out that there was no proof of the forced conversion, however, it was uncertain that the minor girl could take an informed decision regarding converting her religion. He pleaded the court to declare her conversion invalid due to her legal incapacity. He further argued that even if it was presumed that she had acted with his will, the petitioner could not be denied from the custody of the minor girl.
Justice Tariq Saleem Sheikh authored the judgment on 02.08.2019. While accepting the petition, the Court rejected the prayer of the respondents for the custody of the minor girl. The Court held that the minor girl is just 14 years old therefore, she lacks legal competence to convert her faith. Nevertheless, the Court noted, the question of belief is a subject of mind and soul and one’s faith, no Court can pronounce her change of faith illegal or void.
It may be argued that once the Court held that the minor girl lacks ‘legal competence’ to convert her faith, the question of ‘subjectivity of mind or soul’ in this case becomes irrelevant for the purposes of the law. The decision by a ‘legally incompetent’ person (minor girl in this case) may not be protected under the law, even in matters of religion or belief, as it lacks the essential ingredients of an independent decision such as ‘conscious thinking’ and ‘informed choice’. In any case, conversion of religion under undue influence and coercion is void and invalid, as the Quran says: There is no compulsion in [acceptance of] the religion (2:256).
Finally, the Court held that the petitioner being the legal guardian of the minor girl is entitled to her guardianship. Thus, the custody of the minor girl was given to her mother/petitioner. It is expected that this decision will have a far-reaching impact on the religious rights of the minorities in Pakistan. It will increase their confidence in our justice system.
The freedom of conscience and thought and the right to profess, practice and propagate religion is considered as a fundamental human right. It includes the freedom to change one’s religion or belief. All international statutes support the freedom of religion: Article 18 of the Universal Declaration of Human Rights (1948) (UDHR), Article 18 of the International Covenant on Civil and Political Rights, (1996) (ICCPR), Article 9 of European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965), Article 12 of the American Convention on Human Rights (1969), Article 8 of the African Charter on Human and Peoples Rights (1981), Universal Islamic Declaration on Human Rights (1981), and Arab Charter on Human Rights (1994).
The freedom to religion rests at the heart of any democratic state. Therefore, Article 20 of Pakistan’s Constitution of 1973 recognized and protected freedom to profess religion and to manage religious institutions as a fundamental right. Moreover, the Supreme Court of Pakistan observed that freedom of religion must be construed liberally to include freedom of conscience, thought, expression, belief and faith. However, this freedom does not extend to permit anyone to convert a person to another religion by coercion or inducement. The SC emphasized that forced conversion or imposing beliefs on others constitutes an infringement of the right to freedom of religion.
In PLD 2014 SC 699, Justice Tassaduq Hussain Jillani issued robust directions to the Federal Government of Pakistan: (a) constitute a task- force for developing a strategy of religious tolerance, (b) develop curricula at school and college levels to promote the culture of religious tolerance, (c) take appropriate steps to discourage hate speech in social media and bring the delinquents to justice, (d) constitute a National Council for minorities’ rights, (e) establish a special force to protect places of worship of minorities, and (f) reserve and implement quota for minorities in all services. The SC further proposed a three members bench to ensure the implementation of its directions and to entertain the complaints regarding the violation of fundamental rights of non-Muslim minorities.
Muhammad Ali Jinnah, the founder of Pakistan, demanded full religious liberty including liberty of belief, worship and observance, propaganda, association and education of all communities for the Muslims and non-Muslims of subcontinent [Jinnah’s Fourteen Points].
Despite the aspirations of the founding father of Pakistan, constitutional guarantees, the directions of our superior courts and State’s international commitments to protect the freedom of religion and belief, the state of minorities rights is fragile. Therefore, the issues of non-Muslim minorities such as the forced conversion of religion need to be redressed. The protection of the right to freedom of religion or belief is a universally recognized human right. It needs proper protection in ALL countries.