Junaid Jamshed’s case has highlighted some inherent flaws of blasphemy law and the way it is implemented in Pakistan. The main reason why the case has attracted so much attention is that Junaid Jamshed is affiliated with the Deobandi brand of Islam -- a powerful Sunni denomination which has a large network of madrassas throughout Pakistan.

Let me state at the outset that I am not claiming any theological expertise in exploring the concept of blasphemy and the punishment prescribed for it in Quran, Hadith and fiqh. I am simply arguing that Junaid Jamshed’s case offers an ideal situation for discussing some aspects of blasphemy law as it exists in the statute books of Pakistan which need serious and urgent revisions.

The two most obvious flaws are that it has no scope for compassion nor does it take into consideration the question of intention. In the case of Junaid Jamshed, it is quite clear in my opinion that he did not intend to cause an affront to religious sentiments. He just got carried away with his misogynist stream of thought. But the moment he realised his mistake, he made an unconditional apology. Still, as per the various clauses of blasphemy law passed during the 1980s, there can be no respite for Junaid Jamshed as the law does not admit of intentionality and compassion.

The historical genesis of blasphemy law in South Asia

With the notable exception of Harvard-based anthropologist Asad Ahmed, and a lengthy article written by Osama Siddique and Zahra Hayat, there has been little academic work on the content of blasphemy laws, its historical genesis and discursive formation. Ahmed has traced the origin of these laws from the colonial period as they were first introduced in the Indian Penal Code of 1860. The original provision of section 295 of Indian Penal Code stated:

"Whoever destroys, damages, or defiles any place of worship, or any object held sacred by any class of person with the intention of thereby insulting the religion of any class of persons or with the knowledge that any class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." [Italics are mine]

Also read: Running for life

This law remained operational without any change for more than 60 years before the notorious Rajpal affair forced the British to make an addition to section 295 in 1927. It said:

"Whoever, with deliberate and malicious intention of outraging the religious feelings of His Majesty’s subjects, by words, either spoken or written, or by visible representations, insults or attempts to insult, the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both." [Italics are mine]

This addition had to be made because the original clause did not cover religious offences in written form. The original clause had helped Rajpal -- the publisher of a book considered deeply offensive by the Muslims -- to escape from any severe punishment. He later survived an assassination attempt before being murdered by Ilam Din.

The colonial law covering blasphemy remained operational and effective from 1860 till 1980 with just one amendment in between. Between 1980 and 1987, several additions were made to the relevant sections covering blasphemy.  It started with section 298-A to prohibit the use of derogatory language against Holy personages (such as wives of the Holy Prophet (PBUH), his companions and members of his household), section 295-B against the defiling of copy of Holy Quran, section 298-B and C to disallow Ahmadis to use Islamic terminologies or to call themselves as Muslims and, finally, section 295-C to protect the honour of Holy Prophet (PBUH). This particular section stated:

"Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly defiles the sacred name of the Holy Prophet Muhammad [Peace be upon him] shall be punished with death, or imprisonment for life and shall also be liable to fine."

As Osama Siddique and Asad Ahmed have pointed out, the amended section of the law makes it clear that while the colonial law covered all religions, Zia’s law only protected Islam and the Prophet of Islam; while colonial law laid emphasis on the question of intentionality, Zia’s law did not even touch upon it.

 The question of intentionality

The question of intentionality is important for many reasons. First, without considering the intention of an author or a speaker for his/her written or spoken word, any genuinely academic or scholarly work can also fall under the category of blasphemy. Ironically, this particular aspect was invoked in early 1950s in Pakistan not by Muslims but by Christians. The government of Punjab had banned a book titled ‘Jesus in Heaven on Earth’. Written by Khawaja Nazir Ahmad, an Ahmadi of Lahori Jamat, the book argued that Jesus survived crucifixion and travelled all the way to Kashmir (staying in Murree - named after Mary - on his way) where he died a natural death. The author also used some harsh language against St. Paul and other notable figures held sacred by Christians. The book was, thus, a staunch criticism of Christianity and some of its fundamental belief structures. In his defence, however, Khawaja Nazir Ahmad argued that his purpose and intention was to offer genuine criticism and not to offend religious sensibility. What actually draws a line between ‘genuine’ criticism and ‘deliberate’ provocation became a question of interpretation of law which was settled in the Lahore High Court. Justice M.R. Kayani wrote the judgment on this case in 1954 in favour of Christians. He observed:

"The honest preaching of a creed, however, which a man sincerely believes will lead to the salvation of humanity, being an effort worthy of emulation, the injury attendant thereon may be ignored. But a limit must be drawn somewhere, and even a laudable effort knows limits. It is the limit where controversy ends and malice begins, that is to say, where the speech or writing does not further the ends of the controversy and says a thing which could be left unsaid without injuring the controversy, or saying it, not exactly ‘with sweets’, but with a little bitterness as can be brought to the occasion."

At the time Justice Kayani wrote this judgment, the colonial law protecting all religions with an additional safeguard in the form of notion of ‘intent’ was still operational. But now that this safeguard is no longer there, an expression of one’s own religious beliefs can also fall under the category of blasphemy. This happens both to non-Muslims as well as Muslims. In the case of non-Muslims, it is very clear. They are non-Muslims because they do not believe in the prophethood of Prophet Muhammad (PBUH). But saying this in the wrong way or loudly or in a charged environment can easily be construed as blasphemy. In the case of Muslims, it is an expression of one’s idea of prophetology itself that can cause trouble at times. This happens mostly in the case of Ahl-i-Hadith, widely condemned as Wahabis and cases have been registered against them.

There is absolutely no doubt that the vast majority of believers in Pakistan have an utmost reverence, love and devotion for the figure of Prophet Muhammad (PBUH). This requires that one should be careful in expressing even religious beliefs, let alone academic opinion, in public. The choice of words has to be appropriate. But then equally important should be the question of intention.

 The question of compassion

The other important lapse in the present law on blasphemy is that it is completely devoid of the idea of compassion. Again, Junaid Jamshed serves as an example. He has apologised for his act. But the law does not recognise compassion and mercy in any case. Those who campaigned for blasphemy law in the 1980s claimed that blasphemy falls under the category of hudd. While humans can pardon the acts committed against them, this hudd is unpardonable because it is committed against the Prophet.

One can argue that this is not a consensual position in Sunni fiqh. There are more qualified people who are experts in Islamic law and theology and can talk about this particular aspect. I am not even remotely an expert on the issue but whatever secondary literature I have seen alludes to the fact that there is a great deal of scope for compassion in this matter -- especially for non-Muslims. There are numerous instances in which the accused of blasphemy were given a chance to repent; if they did so, they were let off the hook.

The concept of compassion, mercy and forgiveness is most evident from the life and teachings of Prophet Muhammad himself. Many of those who persecuted him or hurled abuses at him eventually repented and became some of the leading, pious figures of Islam.

One could argue that such an approach was necessary from a practical point of view when the Muslims were lacking in power. But even after the conquest of Mecca which made Muslims the supreme authority in the region, Prophet Muhammad chose to pardon most of his bitter opponents. Those who cite the example of Kaab b. Ashraf overlook the fact that he was among those who were persistent and non-repentant.

 Reforming the law

Every year numerous cases on blasphemy charges are registered in Pakistan. The experience of going through court proceedings can vary in individual cases. Usually a non-Muslim is more prone to go through a traumatic experience and a lingering fear of an assassin’s bullet. If the case becomes high profile for some reason, the judicial proceedings suffer inevitably as hardline clerics attend the proceedings in large numbers to influence the judge and the lawyers through intimidation. The experiences of a Muslim booked under this law can be varied as well. If an Ahl-i-Hadith gets accused, he can count on the support and influence of his wider religious community. But if an ‘ordinary’ Muslim gets accused, the experience can be extremely painful.

Because of these flaws, threats and intimidation, there is hardly any chance of justice being administered. The accused are mostly gunned down by a zealot inspired in the name of safeguarding the honour of the Prophet (PBUH). The few lucky souls who have been set free by the courts have only been exonerated because the testimony of witnesses against them was dismissed by the courts. In other words, there has never been a conviction on charges of blasphemy which has been upheld by superior courts and which has led to the execution of the accused. The trial either gets discontinued because the accused is assassinated or the case is dismissed by higher courts because the testimonies are weak.

The case of Junaid Jamshed can lead to some positive outcomes. Since Jamshed is associated with the powerful Deobandi group, he can count on their support and protection. Given the hostile mobilisation carried out by the Barelvis to settle their sectarian scores, Deobandi groups have not been able to keep themselves aloof from this controversy. Several Deobandi scholars have come on social media to say that since Junaid Jamshed has repented, he should be pardoned. They overlook the fact that the current law on blasphemy in Pakistan does not accept apology. Junaid Jamshed could have either kept silent or insisted that he had not committed blasphemy and there would have been some legal scope still left. But the fact that he has admitted to being disrespectful implies as per the law that he be awarded extreme punishment.

This is why I am arguing that the law must be reformed to include provisions of compassion and intentionality. But since no political party in Pakistan can afford to even think about proposing any amendment in this law, the only way to do so may be through a court verdict.

Given the nature of Junaid Jamshed’s Deobandi connection and the power which Deobandi Islam has in the state and society of Pakistan, there is a possibility that if this case goes to trial, its proceedings will take place in a relatively secure environment and taken to a logical conclusion. My presumption is that in this particular case, the judges of the superior court -- preferably from Federal Shariat Court -- will be more at ease to discuss this case without the fear of reprisals. This will allow a platform on which to discuss the issue of blasphemy and the blasphemy law at length.

I do not claim to have seen many court verdicts on blasphemy, but whatever I have seen is suggestive of the fact that courts have never exonerated any individual by saying that the remarks made by the accused did not amount to blasphemy. They have exonerated people for lack of credible evidence though. What constitutes a blasphemy, in other words, has not been under judicial scrutiny at a higher level. This needs to be debated because, as pointed out earlier, the vagueness of law makes the mere expression of faith as blasphemy as well. In addition to elaborating on the concept of blasphemy and what constitutes a blasphemy, the judges, in this particular case, will also be able to take into consideration the question of compassion and intentionality which, again, is lacking from the law in its present form.

It is my firm estimate that if the court functions in a free manner and devoid of any threat or intimidation, and once the principles of intention and compassion are established, it will help not just Junaid Jamshed but countless others who are languishing in jails on charges of blasphemy with a constant threat of assassination.