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  • Masoom Sanyal and Mahika Suri

Unshackling Free Speech- Pakistan Abolishes Sedition Law, Will India Follow Suit?

This article is authored by Masoom Sanyal and Mahika Suri, 2nd-Year Students of B.A LL.B (Hons) at Gujarat National Law University.


​“I regard freedom of expression as the primary right without which one cannot have a proper functioning democracy.”

– Lord Hailsham


Background

In a landmark ruling, the Lahore High Court has struck down the colonial sedition law incorporated in Section 124A of the Pakistan Penal Code, 1860 (“PPC”). The provision in question reads as “whoever by words or visible representation brings or attempts to bring ‘into hatred or contempt or excites or attempts to excite disaffection’ against the government shall be punished with a term which may extend to life imprisonment.” Section 124A, popularly known as the Sedition Law, has been used by successive governments to silence opposition and suppress dissent. Notably, similar provisions are found in the Penal Codes of India and Bangladesh as well.


A single-judge bench of the Lahore High Court presided over by Justice Shahid Karim was hearing the challenge against Section 124A of PPC. The High Court has finally declared the law as inconsistent with the Constitution of the Islamic Republic of Pakistan in view of Article 8 of the Constitution, which declares that “laws inconsistent with or in derogation of fundamental rights” shall be void. The Court held that Section 124A was inconsistent with Article 19 of the Constitution of Pakistan which guarantees all citizens the fundamental right to ‘freedom of speech and expression’ and ‘freedom of the press’. The Court further held that the provision of Sedition was also violative of Article 9 (Security of Person), Article 14 (Inviolability of Dignity of Man), Article 15 (Freedom of Movement), Article 16 (Freedom of Assembly), Article 17 (Freedom of Association), and Article 19A (Right to Information). Although Article 19 provides for the freedom of speech and expression, it also reasonably restricts the citizenry’s right to freedom of speech and expression in the interest of the following six grounds: (a) the Glory of Islam; (b) Integrity, Security or Defence of Pakistan or any of its parts; (c) friendly relations with Foreign States; (d) Public Order, Decency or Morality; (e) Contempt of Court, and (f) Commission or Incitement to an Offence. Still, the Lahore High Court was not inclined to hold that the offence of Sedition as provided in Section 124A falls within any of the reasonable restrictions provided in Article 19 of the Constitution.


Implications of the judgement in Pakistan

This judgement is being lauded as an important win for free speech and civil liberties in Pakistan. The Human Rights Commission of Pakistan (HRCP) also had previously expressed concerns over the increasing use of the provision of Section 124A of PPC by successive governments to suppress dissent and cases being filed against opposition leaders and journalists under this law. The Commission had urged that the Sedition Law must be abolished, since it constituted “a constraint on the legitimate exercise of constitutionally guaranteed freedom of speech and expression.”


However, the Ministry of Law as well as the Ministry of Human Rights defended the sedition law in the Court. They argued that Section 124A of PPC was not inconsistent with Article 19 of the Constitution and fell well within the ambit of reasonable restrictions stipulated in the Article. The Government of Pakistan will almost certainly appeal this decision and there exists a possibility that this judgment may be overruled by the Supreme Court of Pakistan. Nevertheless, the current verdict by Lahore High Court is applicable across Pakistan since the PPC applies across the country.


Indian position

A similar challenge was instituted against Section 124A of the Indian Penal Code (IPC) in the Supreme Court of India. Originally drafted by the colonial government of the day, the provisions with respect to sedition in the IPC and PPC are identical. Previously, in the judgment of Kedar Nath v. Union of India (1962), the Supreme Court of India had heard a challenge to the validity of the Sedition Law. In a decision rendered by a Constitutional bench of five judges, the Hon’ble Court had held that the restriction imposed by Section 124A of the IPC falls within the ambit of “public order” as a ground of reasonable restriction under Article 19(2) of the Constitution of India.


However, the Court limited the applicability of the Section to acts and speeches which have a “tendency or intention to create public disorder” or if such act or speech constitutes an “incitement to violence”. Although the Court attempted to greatly reduce the scope for misuse of the Section, the use of the sedition law to suppress dissent has only increased over time. Given the scope of misuse of this Section and its alleged inconsistency with the right to freedom of speech, in February 2021, a petition was filed in the Supreme Court of India against the constitutionality of the Sedition Law. The Supreme Court clubbed nine other previously pending petitions with the one filed in February 2021 and decided to hear them collectively under the title S G Vombatkere v. Union of India. In May last year, while hearing the S G Vombatkere batch of petitions, the Supreme Court ordered that all proceedings under Section 124A must be kept in abeyance for time being and that all those incarcerated currently could get bail from Sessions Courts.


The Court is yet to decide whether or not there is a need to revisit the judgement in Kedar Nath Singh v. Union of India. However, it is submitted that the time is ripe for the Indian Supreme Court to declare Section 124A of the IPC unconstitutional and constitutive of an illegitimate limitation on the exercise of the fundamental right to freedom of speech and expression by the citizenry. Historically, the offence of Sedition was used to curb dissent against the government in colonial India. Many of India’s freedom fighters were charged under this section for voicing their opposition to the British Government, including leaders like Gandhi and Bal Gangadhar Tilak. Interestingly, the founding father of Pakistan, Mohammad Ali Jinnah, appeared for and defended Tilak when the latter was charged with sedition. In light of this legacy of Sedition, both India and Pakistan must get rid of this colonial invention of a law whose very inception was the result of the then government’s willingness to curb dissent.


Analysis

In our independent, post-constitutional nations that have adopted democracy as a cornerstone, there is no need for this law. It also cannot be justified as a reasonable restriction upon the exercise of free speech under Article 19(2) of the Indian Constitution. It is helpful to refer to the Constituent Assembly Debates of the Indian Constituent Assembly at this juncture. Our Constitution-makers, after a lengthy debate, resolved to exclude “sedition” as a ground for reasonable restriction on freedom of speech and expression. In Ram Nandan v. State of UP, the Court quoted Pt. Jawaharlal Nehru who called Section 124A “highly objectionable and obnoxious” and said that “the sooner we get rid of it, the better.” The Law Commission of India has also recommended in its Consultation Paper on Sedition, published in 2018, that there is a need for the Sedition Law to undergo change and asked, “The United Kingdom abolished Sedition ten years back citing that the country did not want to be quoted as an example of using such draconian laws. Given the fact that the Section itself was introduced by the British to use as a tool to oppress the Indians, how far it is justified to retain S 124A of IPC?” The NCRB started compiling data on Sedition in 2014. The data suggests that 475 cases have been filed under S 124A between 2014 and 2021 and the pendency has remained unusually high. The conviction rate in these matters has also remained low – the lowest being 3.3%, as recorded in 2019.


Those in favour of this Section argue that it is important to balance the interest of the State with the protection and enjoyment of the fundamental rights of the citizens. However, as argued previously, sedition as an offence was introduced with the very intention to curb dissent. Moreover, there is adequate protection available to the State under Chapter VI of the IPC and PPC, respectively, by virtue of other sections in that chapter, whose constitutional validity is not in question. The offence of Sedition is a colonial legacy being increasingly misused as a political tool to curb the civil liberties of citizens and stifle free speech. It is not in line with the idea of a modern democratic nation committed to constitutionalism, and therefore it must be read down at the earliest.


The judgment of the Lahore High Court is a major victory for Free Speech and Civil Liberties in Pakistan; it is time that the Indian Supreme Court also follows suit and holds Section 124A of the IPC unconstitutional.

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