Five months after the landmark verdict of the Lahore High Court (LHC) [Haroon Farooq vs Federation of Pakistan], which struck down Section 124-A of the Pakistan Penal Code (PPC), 1860 — commonly known as the law of sedition — state authorities in provinces beyond Punjab and in the Islamabad Capital Territory (ICT) continue to frivolously use it against political opponents to stifle dissent.

The most recent illustration of this includes the arbitrary arrests of prominent human rights lawyer, Imaan Mazari, and former lawmaker and leader of the Pashtun Tahaffuz Movement (PTM) Ali Wazir, on charges of sedition.

Not only do these rampant violations of civil liberties pose a clear manifestation of the increasing repression and shrinking space of dissent in Pakistan, they also reinforce the role colonial laws play in undermining the constitutionally protected right to freedom of expression, liberty, dignity and political association guaranteed to each and every citizen.

Vestiges of colonial law

While Pakistan gained independence from British India on Aug 14, 1947, it continued to be governed for the next several years by the Government of India Act, 1935 and the Indian Independence Act, 1947 — two powerful symbols of deriving power and legitimacy from the Crown.

It was not until March 1956 that Pakistan became a ‘republic,’ no longer under the control of the British monarch or Parliament. This change, however, did not fully cast off her colonial chains as the newly enacted Constitution of 1956 made little to no substantive difference to the right to free speech in Pakistan, but rather maintained what lawyer and legal scholar Abhinav Chandrachud terms ‘colonial continuity.’

Interestingly, the birth of this post-colonial independent state was characterised by more continuities than departures. This continuity of retaining the law of sedition begs one question. Did we perpetuate our own oppression?

The law of sedition in England was a ‘misdemeanour’ or a minor offence that attracted a sentence of up to two years of imprisonment. It was also non-cognisable (meaning a police officer could not arrest anyone accused of it without an arrest warrant), bailable (a person arrested in connection with it was entitled to be released on bail while their trial was pending) and required a unanimous verdict of 12 jurors for a successful conviction.

When the penal code in British India was drafted by Thomas Babington Macaulay and passed in 1860, it did not contain Macaulay’s 1837 draft on the law of sedition. It was only in 1870 — 11 years after Macaulay’s death — when Sir James Fitzjames, counsel of the Governor-General tabled the bill, that Section 113 of Macaulay’s draft was introduced as Section 124-A of the Indian Penal Code.

This provision made it an offence for any person to “excite feelings of disaffection to the government”, though making critical yet ‘obedient’ and respectful comments on the government did not attract any penalties. Unlike England, the Indian version of the law was drafted in a rather different manner. By contrast, Section 124-A was defined very broadly to include merely evoking hatred, disloyalty or bad feelings against the government. It was cognisable, non-bailable, carried a sentence of life imprisonment and did not require a unanimous verdict by the jury to secure a conviction.

In 1898, Section 124-A was made even more stringent when Justice Arthur Strachey of the Bombay High Court observed that disaffection not only meant “the absence of affection” but “every possible form of bad feeling to the government.”

Strachey’s observations led to the 1898 amendment whereby the said provision was revised to include “contempt”, “hatred”, and “disloyalty” within the ambit of disaffection, as the pre-1898 version of the law was insufficient for the colonial powers to secure convictions. This expansive wording weaponised free speech as various political leaders, activists, and journalists alike fell prey to this vague provision.

Crackdown begins

One of the most prominent and early uses of this colonial law was when Bal Gangadhar Tilak, a nationalist and independence activist, was sentenced to imprisonment for 12 months in the Queen Empress vs Bal Gangadhar Tilak case (1897-1898) for “exciting disaffection” through one of his articles published in a local newspaper. Tilak’s conviction marked the criminalisation of dissent as a grand spectacle of a political trial, narrativised by the press across colonial India.

His ordeal did not end there. Little did Tilak know that the offence of sedition would come to haunt him again in 1908 and 1916. Ironically, this time around, he was tried under Section 108 of the then-Criminal Procedure Code, which provided for “taking security for good behaviour from persons disseminating seditious matters.” With Muhammad Ali Jinnah representing him, the Bombay High Court overturned his conviction and set him free.

Similarly, in another significant case — Mrs Annie Besant vs Government of Madras, 1916 — Annie Besant, an English activist was tried for her ‘seditious’ articles which condemned the charges against Tilak. In 1922, Mohandas Karamchand Gandhi, who would later end up becoming the founding father of the Republic of India, was sentenced to six years of imprisonment for his involvement in protesting against the British colonial government.

Gandhi’s famous remarks of terming Section 124-A as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen” summarises the role this oppressive colonial law plays in exalting the government to a position of sanctity and seeks to make the citizens unquestioning vassals of the state.

The cases of Tilak, Gandhi and Besant backed the interpretation that Section 124-A did not require violent upheavals, rioting or acts of terror threatening the colonial yoke; rather, it merely required the creation of disaffection towards the government through spoken or written words or signs. Sedition meant that creating or feeling certain kinds of feelings was enough to be criminal — it required no other action. Thus, the feeling of disaffection or hatred was to be the litmus test for sedition in colonial India.

Sedition in Pakistan

The law as it stands today in Pakistan is as follows:

124-A Sedition

“Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Federal or Provincial Government established by law shall be punished with imprisonment for life to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

However, the jurisprudential evolution of Section 124-A by the superior courts of Pakistan after 1947 has seen a move away from the mere creation of feelings being seditious to the disruption of public peace or inciting rebellion as being violative of Section 124-A.

In Inamullah Khan vs The State (1977), the LHC laid down that mere criticism, even if harsh language is used, of government action or policy was not sedition and for sedition to be established, there had to be a call to rebellion or the usage of unconstitutional means to disturb public peace. This view was reaffirmed by a division bench of the LHC in Tehmina Doltana vs The State (2001) where the court was of the view that words and speeches ought to be construed in a fair and liberal spirit.

Similarly, the Indian Supreme Court in the seminal Kedar Nath Singh vs State of Bihar (1962) judgement held that subversion of the government established by law through violent means would fall within the ambit of sedition, however, strongly commenting on the government’s acts or policies would not constitute sedition. The Kedar Nath decision was reaffirmed by the Indian SC in Balwant Singh vs State of Punjab in 1995.

The fault in Section 124-A

The provision that was once used to criminalise and impede indigenous nationalist movements by an alien colonial regime is now used as a repressive tool to curb and criminalise political dissent following its migration into the Pakistani legal system.

Ironically, England repealed the law of sedition through the Coroners and Justice Act in 2009. At the time, the United Kingdom’s Parliamentary Under Secretary of State remarked: “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 …”

The continued operation of the offence of sedition is not only problematic because it is used by the government of today or political parties in power to crack down on political opposition, but also because it has a chilling effect on legitimate concerns and critiques brought forth by the people of Pakistan, with whom the very mandate of the government lies — quite simply it is unconstitutional and undemocratic.

The operation of Section 124-A impinges on the very crux of democracy by criminalising any form of speech or writing that expresses disapproval or discontent with the government. Even if these expressions of discontent are based on factual information or truths about government actions, the sedition law does not accept truthfulness as a defence.

The full bench of the Apex Court in The State vs Ataullah Khan Mengal held that “it is irrelevant for the purpose of establishing the charge whether the allegations of fact made in such a statement are true or otherwise. I also agree that it is not relevant even for determination of sentence, whether the allegations of fact are true or untrue … the truth of the statement may indeed be an aggravating factor.” As a result, Section 124-A perpetuates the marginalisation of already marginalised groups that face government-sanctioned violence.

Decolonising the law

The archaic offence of sedition has no place in the PPC, especially in light of Article 19 of the Constitution which guarantees freedom of expression. Since sedition itself has not been explicitly listed as an exception to Article 19, this leads us to the question — is the offence of sedition a reasonable restriction placed on a citizen’s right to freedom of expression?

A colonial provision enacted to suppress the voice of the indigenous population cannot be seen as a reasonable restriction in a democratic republic which is duty-bound to protect the rights of its citizens, especially when there is no threat to public peace, order or state security.

The repulsion of the sedition law is not only necessary due to its vague language and frequent weaponisation by government authorities, but also because the provision serves no purpose in a post-colonial democratic country.

More importantly, in light of some of the safeguards placed by Pakistani courts, there is no need for a provision that merely exists now to create an atmosphere of fear and perpetuate a narrative that citizens do not have the liberty to be critical of the government.

Justice Shahid Karim, in a powerful critique while striking down the sedition law in Haroon Farooq supra wrote: “It is thus inconceivable for a fiduciary to gag and muzzle the delegator by making use of a provision which is archaic and is antithetical to the instincts and traditions of a people under a constitutional democracy.”

It is time that Section 124-A be repealed across Pakistan. Grievances need to be redressed not repressed.

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