June 19 marked the 10^th anniversary of a milestone verdict on the rights of religious minorities passed by a Supreme Court bench headed by the then chief justice of Pakistan, Justice Tassaduq Hussain Jillani. The judgment won praise from across the globe. Justice Jillani, the author of the judgment, received two international awards for upholding the principles of justice.

Ten years on, it is important to examine whether and how Pakistan has benefitted from the judgment. It is also crucial to identify the obstacles hindering the progress it aimed for. Moreover, it is important to assess the effects of the lack of implementation/ enforcement visible in the form of religious intolerance and extremism.

The making of a landmark

The opportunity emerged from a crisis. Suicide attacks on All Saints Church, Peshawar, in September 2013 left around 90 people dead and many injured. The Supreme Court then held self-initiated proceedings. The court clubbed together eight applications that had been pending (with the SC) regarding the minorities’ rights, including the protection of minorities’ properties, issues of forced faith conversions, marriage registrations and implementation of job quotas. Consequently, the bench delivered an all-embracing judgment to address the issues institutionally.

The anatomy of the landmark

Before suggesting practical measures, the judgment elaborated on Article 20 of the constitution which relates to religious freedom. It emphasised that irrespective of certain political reservations for the citizens belonging to the majority religion — for instance, the offices of the president and the prime minister, (Para 11, a, b, c and d) — Article 20 enjoyed a pre-eminence in fundamental rights as it was not subject to any other restrictions and accorded equal protections and freedoms to all citizens (Para 15-b).

The judgment also observed that the “right to profess and practice is conferred not only on religious communities but also on every citizen. This means that every citizen can exercise this right to profess, practice and propagate their religious views even against the prevailing or dominant views of its (sic) own religious denomination or sect. In other words, neither the majority religious denomination or sect nor a minority religious denomination or sect can impose its religious will on the citizen” (Para 15, c).

In the concluding para (37) of the judgment, the SC issued eight directives to the government which called for: 1) constituting a task force to develop a strategy to promote religious tolerance; 2) developing curricula at school and college levels to promote a culture of religious and social tolerance; 3) taking steps to discourage hate speech on social media and bringing delinquents to justice; 4) setting up a national council for minorities’ rights, inter alia, to monitor the practical realisation of the rights and safeguards provided to minorities with a policy of safeguarding and protecting their rights; 5) establishing a special police force with professional training to protect the places of worship of minorities; 6) ensuring enforcement of reservation of quota for minorities in all services; 7) law enforcement agencies to take prompt action, such as registration of cases against violation of the rights guaranteed or desecration of the minorities’ places of worship; and 8) the court to open a separate file to be placed before a three-member bench to ensure that the judgment is given effect to. The bench may entertain complaints of violation of the fundamental rights of minorities.

In the last directive, the court committed itself to treating this case as alive until full compliance was achieved. This was perhaps the best way to ensure that the verdict would not be brushed aside.

As for follow-up, a bench has been in place for around six years after the SC failed to constitute a bench during the 30 months between December 2015 and June 2018 and later during 2023-24 (15 months). The implementation bench has conducted 33 hearings after the verdict and issued 90 directions for compliance with original instructions and in response to new applications.

In January 2019, realising that regular assessment and oversight was needed to achieve substantive compliance with the judgment, the court established a One-Man Commission headed by Dr Shoaib Suddle. Dr Ramesh Kumar and Advocate Saqib Jillani were appointed committee members.

Substantive compliance

Lack of cooperation from certain quarters in the government aside, Dr Suddle and his colleagues worked diligently and devotedly, making some breakthroughs. For instance, they identified gaps in the implementation of job quota, the hidden millions of rupees and malfunctioning at the Evacuee Trust Property Board (mostly Hindu and Sikh communal assets under governmental control).

Dr Suddle submitted 14 reports to the bench over five years, on the commission’s work and the issues needing intervention by the court. Responses to some of these issues are still pending. This included the implementation of Article 22(1), which requires that students belonging to minority religions should not have to learn the majority religion. In practice, it means the lessons related to majority religion in the subjects that all students have to study, for instance, languages and social sciences, and history, need to be taken out.

The Centre for Social Justice, a non-government organisation and an applicant before the implementation bench of the SC, has been participating in the court proceedings since 2018. The CSJ issues assessments of compliance reports submitted by the provincial and federal governments annually. It has observed that, on paper, compliance with the judgment had reached about 24 percent. Actual or substantive progress may be less.

Compliance has been particularly slow with regard to the institutional framework proposed in the judgment, including the establishment of the National Commission for Minorities’ Rights. The Ministry of Religious Affairs set up an ad hoc and toothless commission in 2020 through an executive order, in line with the practice since 1990. In June 2022, the ministry chose to establish a statutory body, but fearing that it was going to be an ineffective one, civil society opposed the move and the bill lapsed in the Senate. There is therefore no reason the Ministry of Law cannot introduce an empowering and enabling legislation.

Defiance of court verdicts is hardly unprecedented in a weak democracy. However, flouting this judgment appears to have become a consistent gesture to maintain a majoritarian paradigm. A couple of case studies should suffice for demonstration.

The most telling example is that nearly 200 direct victims of the suicide bombing in Peshawar (2013), the departure point for the judgment, have not received compensation from the government. To add insult to injury, instead of paying compensation to the bombing victims, the Khyber Pakhtunkhwa government has converted the Rs 20 million provided by the federal government into an endowment fund to be used for future victims of similar incidents.

In another example, the implementation bench under had to issue 10 directives for legislation of the Hindu Marriage Act that came about in 2017 but has been dormant because rules of procedures have not been adopted.

Over the 10 year period, no provincial assembly, parliament or cabinet has discussed the implementation of this judgment. The political leadership has been either oblivious of the state of implementation or evasive on the subject, even though election manifestos of some parties mention the judgment.

The bureaucracy has been apathetic towards the religious minorities, mostly denying, defying and deflecting the issues related to the life, liberty and well-being of minority citizens.

The inertia that this judgment sought to address and the imbalance that it aimed to treat are eating up the reformative potential of one of the finest judgments delivered. The privileges enjoyed by traditional decision-makers and those sharing power with them are obstructing affirmative action that will enable equality of rights of the millions of people.

The way forward

It’s high time the court considered empowering the One-Man Commission, with the capacity to fulfill its mandate through contempt of court authority.

The prime minister should set up a high-powered implementation committee to target maximum compliance in one year. This is not impossible to achieve if there is manifest will and commitment to protect the rights of marginalised religious minorities. The rule of law and good governance will follow.

The civil society should help bring quality applications before the bench to enable more meaningful proceedings and play its role as a vigilant watchdog.

The writer is a researcher, freelance journalist and human rights defender. He can be reached at jacobpete@gmail.com