Islam as state religion: The provision not contradictory to constitution

The High Court in the full text of a verdict has observed that the provision -- Islam as the state religion -- is not contradictory to the constitution.

Article 2A of the constitution says, "The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions."

In the full text of judgement, the HC said, "Article 2A of the Constitution, impugned herein, in our view, neither offends the basic principles of the Constitution, as contained in the preamble nor offends any other provision of the Constitution."

".... Therefore, it is our considered view that the impugned amendment through Article 2A recognizing Islam as state religion is not ultra vires to the Constitution," a special HC bench of three judges headed by Justice Naima Haider said in the 52-page full text of verdict, which was released on April 21.

The other two judges are Justice Quazi Reza-Ul Hoque and Justice Md Ashraful Kamal.

On March 28, 2016, the bench had delivered the verdict after rejecting a writ petition filed 37 years ago challenging the legality of a constitutional provision in this regard.

Fifteen distinguished citizens had filed the petition with the HC in 1988, challenging the amendment that gave Islam the status of state religion.

The petitioners have no jurisdiction to move such a petition, the HC bench that binned it said while passing its ruling.

The then government led by military ruler HM Ershad had inserted a section in the eighth amendment to the constitution making "Islam" state religion on June 9, 1988.

The petitioners were Begum Sufia Kamal, former chief justice Kemal Uddin Hossain, Khan Sarwar Murshid, Prof Kabir Chowdhury, Prof Dr Mosharraf Hossain, Maj Gen (retd) Chitta Ranjan Datta (Bir Uttam), Prof Serajul Islam Choudhury, Badaruddin Umar, journalist Faiz Ahmed, Dr Borhan Uddin Khan Jahangir, Prof Anisuzzaman, Justice Devesh Chandra Bhattacharjee, Justice KM Sobhan, Syed Istiaq Ahmed, and Kalim Sharafi.

The HC on June 11, 2011 issued a rule asking the government to explain why the part of the eighth amendment to the constitution that had made "Islam" state religion should not be declared illegal.

The government did not respond to the rule.

On June 30, 2011, the parliament passed a bill on the constitution's 15th amendment retaining Islam's status as state religion. The amendment, however, restored "secularism" as one of the four fundamental principles of the state which had been omitted by a martial law regime after the 1975 changeover.

Following an application filed by the petitioners, the HC in December 2011 issued a supplementary rule asking the government to explain why the part of the 15th amendment to the constitution that gave "Islam" the status of state religion should not be declared illegal.

They said there was no scope to keep "Islam" as state religion after the Supreme Court had declared illegal the fifth amendment and restored "secularism" in the constitution.

The amendment validated all laws made by military rulers following assassination of Bangabandhu Sheikh Mujibur Rahman along with most of his family members in 1975.

In the verdict's full text, the HC bench said, "As an attempt to simplify the issue, we have discussed the arguments advanced in our judgement. We have refrained from setting out specific submissions made by the Counsels for the petitioners and respondents because the constitutionality issue should be dealt with "as a whole".

"The conferment of status of 'State Religion' on its own does not tantamount to an action on the part of State to grant political status in favour of Islam.

"Article 2A must be read as a whole and once read, it becomes obvious that the insertion of the concept of Islam being the state religion does not, on its own, affect the constitutional rights of others having different religious beliefs. It does not affect the basic structure of the Constitution and also does not render the Constitution redundant.

The impugned amendment also does not offend the concept of secularism, as provided for in the Constitution," the HC judges said in the full text of judgement.

However, Justice Md Ashraful Kamal in the judgement said that he agreed with the decision of rejecting the writ petition, but he does not agree with the analysis made by Justice Naima Haider for the rejection. 

Justice Ashraful added that in fact, the writ petition has been rejected on the ground that the writ petitioners had no locas standi for filing this petition.