Negotiating Democracy and Religious Pluralism: India, Pakistan, and Turkey by Karen Barkey & Sudipta Kaviraj & Vatsal Naresh

Author:Karen Barkey & Sudipta Kaviraj & Vatsal Naresh [Barkey, Karen & Kaviraj, Sudipta & Naresh, Vatsal]
Language: eng
Format: epub
Tags: political science, Comparative Politics, Religion, Religion; Politics & State
ISBN: 9780197530023
Google: FWQzzgEACAAJ
Publisher: Oxford University Press
Published: 2021-08-17T00:29:19.764551+00:00

8.4.2. Ireland/India as Empty Signifier

Although Pakistan’s Second Constitutional Amendment redefined the Ahmadiyya as “non-Muslims” in 1974, the Pakistani judiciary did not immediately jettison its traditional reading of religious freedom. Even one year after the military coup that replaced Prime Minister Zulfiqar Ali Bhutto with General Zia-ul-Haq in 1977, the Lahore High Court decided a case known as A.R. Mubashir v. A.A. Shah, noting that, although official recognition of the Ahmadiyya as “Muslims” was now constitutionally barred, their fundamental right to peaceful religious practice was still intact. In effect, the court held that the peaceful religious practices of Pakistan’s Ahmadi community (including references to their places of worship as “mosques”) were neither a provocation amounting to a public nuisance nor a threat to any group-based right associated with denominational “property.” Again, recalling the case of A.K. Shorish Kashmiri (1969), the court simply reiterated that the Ahmadiyya could be excluded from “Muslim” matters only when those matters were clearly defined by the terms of constitutional law—for example, matters of “public office” or “property.”

At the same time, however, just across the border in India, the Indian Supreme Court had begun to modify its own understanding of group-based religious freedoms, highlighting the power of the state to identify the “essential” practices of any religion and, by extension, any “nonessential” practices that might be subject to legal regulation, restriction, or reform (Ahmad 2014: 13). This “Indian” notion—that states were empowered to regulate the “nonessential” features of any religion (outlined by Mathew John in Chapter 9 in this volume)—was also in place during Pakistan’s first CA (1947–54), wherein a provisional article was adopted stipulating that, “subject to regulations,” every religious denomination “shall have the right to procure . . . articles which are proved as being essential for worship” (1954: Article 12). But, in Pakistan, this constitutional provision was dropped in 1956, forcing future Pakistani judges to rely on jurisprudence from India (rather than their own constitution) whenever they sought to consider the statutory regulation of any religious practice that might be deemed “nonessential.”23

Still, Indian and Pakistani judges adopted very different approaches to the notion of “essential” and “nonessential” religious practices. Whereas Indian judges sought to regulate an ever-expanding notion of “nonessential” religious practices, for instance, Pakistani judges chose to stress (a) “essential” Muslim practices (protected from adverse forms of state encroachment) as well as (b) “essential” non-Muslim practices construed as a provocation to public disorder (and, then, legally restricted as such).24

During the dictatorship of Pakistan’s General Zia ul-Haq (1977–88), for instance, officials faced with yet another round of violent protests by right-wing religious activists stepped in to further restrict the formal parameters of Ahmadi religious freedom.25 In particular, they stepped in to prevent the Ahmadiyya from using ostensibly “Muslim” words (e.g., masjid, or mosque) and “Muslim” practices (e.g., the azan, or call to prayer), describing their attachment to such words and practices as a provocative form of “encroachment” on the special religious “property” of Muslims.

This notion that Muslim property might include words like masjid as

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