‘Incompatible with democracy’: Why a Pakistani court has struck down its colonial sedition law

On March 30, a single-judge bench of the Lahore High Court struck down Section 124-A of the Pakistan Penal Code – the provision dealing with sedition. It said that the law went against Pakistan’s fundamental right to free speech and expression.

“Section 124-A in its current form, cannot stand the critical interrogation of our Constitution and its ethos,” the court said.

The sedition law in both India and Pakistan is near identical given that both countires inherited it from the British Raj. While the High Court in Lahore has struck down the law, the Indian Supreme Court had upheld the validity of sedition in 1962. In May, however, the Indian Supreme Court had put the law in abeyance and asked all governments to not take any coercive actions on grounds of sedition.

Pakistan’s sedition law

Section 124-A of the Pakistan Penal Code punishes any words that “brings or attempts to bring into hatred or contempt, or…disaffection towards, the Federal or Provincial Government” of Pakistan. Disaffection includes “disloyalty and all feelings of enmity”. This offence is punishable with life imprisonment, along with a fine.

However, the law also says that comments disapproving governmental measures “with a view to obtain their alteration by lawful means” while not exciting hatred would not be punished.

Haroon Farooq, a social activist challenged the constitutionality of this provision. He argued that the provision went against the fundamental rights under Article 14 (the dignity of a person), Article 19 (freedom of speech and expression) and Article 19A (access to information in matters of public importance) of Pakistan’s Constitution.

Constitutional republic

The court agreed with the petitioner’s plea. It held that sedition did not fall into any of the “reasonable restrictions” that can be put on citizens to curtail their right to free speech. According to Pakistan’s Constitution, a reasonable restriction can be put in the interest of the following: Islam’s glory, Pakistan’s integrity or security or defence, friendly relations with foreign countries, public order, decency or morality, contempt of court, or incitement to an offence.

The court also went into the historical background when sedition was inserted into the Indian penal code in 1870. Noting the sedition cases against freedom fighters such as Jawaharlal Nehru and Mohandas Karamchand Gandhi, the court said that sedition was “quintessentially a colonial law” that was “enacted to perpetrate and entrench British rule in the sub-continent”. The offence “had no other purpose but suppression of people’s voices by the colonial masters”, it said.

This was inconsistent with an independent Pakistani republic. “Freedom from colonial rule was meant to usher in freedom of thought and it is impermissible for the citizens of Pakistan to be vilified and persecuted by allowing Section 124-A to remain part of our legal system,” the court said.

After independence, elected government functionaries hold power through the will of the people and the citizens have a right to hold the government accountable the court noted. “The people of the country are the masters and the holders of the office of the government are the public servants,” it explained. Sedition overturns this position “by arming the public servants with the power to stifle the masters”, it said.

The court added that to keep a check on “governmental overreach and excess of authority”, fundamental rights such as freedom of speech were essential.

Dissident speech

In this context, the court said that sedition was a way to seek “revenge on a political dissenter”. The offence was “broadly worded”, it added, “which gives wide leeway to a government” to restrict what the citizens and the press says. This “seriously dents” the right of the media to “impart information” on issues of public importance, it said.

The terms used in the sedition law – “contempt”, “hatred” and “disaffection” – are broad and “entirely subjective”, the court explained. “At a given time…those strong feelings of disapproval may go unnoticed yet in another case and under different circumstances, lesser feelings of disapproval would be enough to attract the offence,” it said.

What this law promoted, the court said, was an “utter disregard” for a dissenting view. “Any political opponent or a citizen holding loyalty to a different political group [than the ruling party]” could commit an offence of sedition.

Better informed public

The court said that if sedition was allowed to stand, then this would restrict the functioning of a democracy. The public “has a right to know and be informed of the different issues in order to make a more informed decision regarding political matters”. For that, it was essential that the press also worked freely, without the threat of sedition being used against it.

Unless the people are informed about political matters, they cannot truly participate in a democracy. However, as long as sedition existed on the statue books, the media would be under “constant threat” and will not be able to “write freely and…dispense information without any fear of prosecution”.

Sedition in India

Like in Pakistan, several citizens and journalist groups have approached the Indian Supreme Court asking it to hold the provision of sedition to be unconstitutional. This includes journalists who have been arrested under sedition for their critical coverage of the government.

In 1958, a three judge bench of the Allahabad High Court held that the sedition provision in India is unconstituitonal since it unreasonbly restricted the right to free speech. However, this was overturned by the Supreme Court in 1962, which said that the offence of sedition would be attracted when the actions have a “tendency to create disorder, or disturbance of law and order, or incitement to violence”.

Presently, in a case pending from 2021, the Supreme Court has suspended the law and said that it “hoped and expected” that the Centre and state governments will restrain from registering a fresh case under this section or taking any coercive actions in existing cases. Meanwhile, the Central government has informed the court that it is re-evaluating the manner in which sedition provision should exist in Indian law.

Several human right activists claim that the provision has been “rampantly misused” in India. According to a database maintained by Article14, sedition cases have been filed against more than 13,000 Indians since 2010.