Sedition and its discontents

03 Feb 2020

Email

The writer is a legal adviser for the International Commission of Jurists.
The writer is a legal adviser for the International Commission of Jurists.

WHEN charged with sedition by the British colonial government in 1922 for his articles published in a local magazine, Gandhi famously said: “Section 124A, under which I am happily charged, is perhaps the prince among the political sections of the Indian Penal Code designed to suppress the liberty of a citizen. ... Affection cannot be manufactured or regulated by the law. If one has no affection for a particular person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

Section 124A relates to the offence of sedition or exciting “disaffection” against the government. It was first included in the Indian Penal Code (IPC) in 1870 — 10 years after it was first enacted — ostensibly in response to the Wahabi movement in the 1860s. The provision covers almost any form of expression: words, “either spoken or written”, signs, as well as “visible representation”.

In 1898, the provision was made even more stringent and was amended to include “contempt”, “hatred”, and “disloyalty” within the ambit of “disaffection”, as the colonial authorities were finding it difficult to secure convictions on the basis of proving “disaffection” alone.

The offence was non-bailable, carried a sentence of up to life imprisonment, and was used against a number of prominent anti-colonial and nationalist figures in India in response to their written and verbal speech.

Elements of the offence are vague and over-broad, and open to subjective interpretations.

Ironically, this colonial relic, which has at its foundation the belief that people are obligated to feel “affection” towards the government or else be punished, continues to thrive in a number of post-colonial states, including Pakistan.

The sedition law itself impedes on multiple human rights such as freedom of expression, the freedoms of association and assembly, and the right to a fair trial: international law is crystal clear criticism of the government and its institutions, even harsh criticism, is a protected form of expression.

Unsurprisingly, the vagueness in its text has also allowed sedition to be misused against political activists, human rights defenders and other individuals exercising or demanding their constitutional rights.

A key precondition to a fair trial recognised universally is that criminal offences must be prescribed by law and must conform to the principle of legality. This means that they must be formulated clearly and precisely to ensure individuals can regulate their conduct accordingly. Vague laws undermine the rule of law because they leave the door open to selective prosecution and interpretation, based on discriminatory policies of government officials and the personal predilections of judges.

The Supreme Court of Pakistan has held, in the context of deciding on the lawfulness of the Anti-Terrorism Act, 1997, that “every citizen has an inalienable right under the Constitution to know what is prohibited by law and what the law does not require him to do”. The court interpreted this to mean that “the language of the statute, and, in particular, a statute creating an offence, must be precise, definite and sufficiently objective so as to guard against an arbitrary and capricious action on part of the state functionaries...”

Section 124A criminalises words/expression which “brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection” towards the Government.

As is evident from a plain reading of the provision, elements of the offence are vague and over-broad, are open to subjective interpretations, and give virtually no instruction to the people or to law-enforcement officials and the judiciary regarding what behaviour is prohibited.

The implementation of section 124A — a bad law to begin with — has further made it a tool of oppression.

As early as 1954, Pakistani courts warned against the misuse of the sedition law, and clarified that the offence applies only to “that degree of disaffection, hatred or contempt which induces people to refuse to recognise the government at all and leads them to unconstitutional methods…”

Courts also laid down a number of mandatory guidelines on how Section 124A should be applied, including reinforcing that complaints could only be initiated by the federal or provincial government, which must give reasons explaining their decision to institute such proceedings.

In practice, however, the police, prosecutors, the government, as well as courts routinely flout such directions. In recent years, other activists, human rights defenders, and journalists have also been charged with and arrested for sedition for simply speaking against or criticising certain government actions or policies.

In the last few weeks alone, organisers and participants of students’ solidarity march in Lahore as well as activists peacefully protesting against the arbitrary arrest of Manzoor Pashteen in Islamabad have been charged with sedition and other similar offences in clear violation of these rulings by the superior courts.

While it is rare for such charges to result in convictions, the charges and arrests alone are enough to harass, intimidate and attempt to silence dissenters, as well as chill the exercise of freedom of expression.

Like a number of other such laws imposed by the British in the colonies, Britain repealed the offence of sedition in 2009 after the law commission recommended abolition in 1977. The then parliamentary undersecretary of state at the ministry of justice, Claire Ward, said at the time of the repeal: “Sedition and seditious and defamatory libel are arcane offences — from a bygone era when freedom of expression wasn’t seen as the right it is today … The existence of these obsolete offences in this country had been used by other countries as justification for the retention of similar laws which have been actively used to suppress political dissent and restrict press freedom.”

Sedition is an archaic, oppressive colonial law that exalts the government to a position of sanctity and seeks to make us obedient, unquestioning vassals of the state. It has no place in a democracy and must be abolished.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: reema_omer

Published in Dawn, February 3rd, 2020