Colonial legacy

Published October 18, 2022
The writer is a lawyer based in Lahore.
The writer is a lawyer based in Lahore.

N.V. RAMANA, former chief justice of India, observed: “Is the law of sedition still necessary in our country after 75 years of independence? There is enormous misuse. Use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself.”

Section 124-A of the Pakistan Penal Code, which defines sedition, criminalises any action bringing or attempting to bring hatred, contempt or disaffection towards the government. Since independence, this colonial remnant has been arbitrarily used in Pakistan as a tool to muzzle dissent and free speech. Usual victims of the sedition law are the political leadership, students, journalists and activists.

Section 124-A is opposed to the preamble of the Constitution, which commands that sovereignty over Pakistan on behalf of Allah belongs to the people of Pakistan. This notion asserts the paramountcy of the people’s will over everything. The elected representatives are nothing but the mediums through which the collective will of the people is expressed, asserted and executed. The people possess the authority not only to change the existing government but to alter the Constitution itself. Now, this brings forth the question as to how can the people, who are themselves sovereign, commit sedition against themselves?

Further, Section 124-A contravenes Article 19 of the Constitution, which grants the right to free speech. Although Article 19 allows the legislature to impose reasonable restrictions on the right to free speech, sedition doesn’t find any place in six categories of restrictions stipulated in Article 19. Even otherwise, if a restriction related to sedition had existed in Article 19, Section 124-A would still have failed to pass the test of reasonability.

Citizens have the right to show disaffection towards the government.

The Supreme Court, in a catena of judgements, has held that ‘reasonable restriction’ connotes that the limitation imposed should not be arbitrary and excessive. Besides, it should not be disproportionate to the mischief sought to be prevented. ‘Reasonable’ implies intelligent care and deliberation. For an action to be qualified as such, it must also be just and fair, and should be in the public interest. Thus, Section 124-A, which prescribes the punishment of life imprisonment for a mere act of or attempt at exciting a feeling of hatred, contempt or disaffection, is unreasonable by any stretch of the imagination.

Likewise, another aspect corroborating the unreasonableness of Section 124-A is that it fails to take into account the truth of the charges levelled against the government. Hence, criminalising speeches encompassing even true charges seems to be evidently unreasonable.

Additionally, terms like hatred, contempt and disaffection in Section 124-A are vague and exceedingly broad. The same have not been defined anywhere in the statute and are subject to different interpretations as per the whims of the police. Hence, such unstructured and unbridled discretion leaves ample room for abuse and misuse, making it an instrument of tyranny.

Moreover, Section 124-A is archaic and socially irrelevant. It was inserted in the Indian Penal Code in 1870 after the Indian Mutiny. The need for Section 124-A was naturally felt by the colonials as the foundation on which their rule rested was illegitimate and frail. Hence, Section 124-A was the perfect device for subduing the freedom movements of the natives. However, post independence, in democratic Pakistan, all authority is derived from the people. “The state now consists of the representatives of the people that are elected by them through democratic elections.” Thus, Pakistan’s foundation stands on the voluntary and free will of its people and the same is not frail.

Realising the out­moded nature of the sedition law, many countries have repealed it. For instance, the UK abolished it through the Coro­ners and Justice Act, 2009, Australia and Scotland repealed it in 2011, New Zealandin 2008 and Indone­siain 2007. Interestingly, the Supreme Court of India in the Vombatkere case (2022)granted status quo order with respect to the enforcement of Section 124-A of the Indian Penal Code.

It must be noted that the relationship between the public and the government is not of that of Romeo and Juliet; citizens cannot be forced to unconditionally love and eulogise the government. Citizens have a right to show disaffection towards the government or any other state institution and openly disagree with its policies. In modern democracies, singing from the same songbook is not a yardstick of patriotism: people are free to show their disagreement in their own way. The words used in such thoughts can be harsh, but that does not render them seditious. Section 124-A has long passed its expiry date; this provision is a silhouette of the colonial empire that should not see the light of day in a free and democratic Pakistan.

The writer is a lawyer based in Lahore.

ask.niaze@hotmail.com

Published in Dawn, October 18th, 2022

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