Monday, October 26, 2020

Does law of sedition undermine free speech?

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With a crime report registered against the senior politicians of this country under the law of sedition; a controversy arises: whether the law of sedition is against the fundamental right of free speech?

Free speech

Freedom of speech is protected under article 19 of the Constitution of Pakistan, 1973. However, it provides eleven reasonable restrictions that are allowed to be imposed by law: “in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof, friendly relations with foreign states, public order, decency or morality, or in relation to contempt of court, the commission of or incitement to an offence”.

True that fundamental human rights are crown jewels of democracy. Nevertheless, rights have limitations too. As observed by Professor Aharon Barak in his book Proportionality (Constitutional rights and their limitations) 2016 that “although in democracy human rights are considered as its soul, however, even in democracy fundamental rights have limitations. This is because in a democratic society a human right may be limited to ensure the very existence of the state, to ensure its continued existence as a democracy, to ensure public health, to ensure public education, as well as several other national causes. These are the purposes for which a democratic society may limit the rights of its members”.

Read more: Why ‘freedom of speech’ doesn’t exist for PTM in Pakistan?

Therefore, it is now settled and indubitable that freedom of speech is limited. Now the next question: whether the law of sedition is against the right to free speech?

Law of sedition vs free speech

The sedition is an offence provided by section 124-A of Pakistan Penal Code, 1860. It is also an offence in our sister jurisdiction: India. The legality and constitutionality of this offence never came as a question before the higher courts of this country; however, it had before the Supreme Court of India in Kedar Nath Singh Vs State Of Bihar in 1962. The section provides that “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”.

Be that as it may, the Supreme Court of India, after an exhaustive review of the case laws on the subject, held Section 124A to be valid. Justice Sinha of the Supreme Court gave the following reasons:

“…the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof,… may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression… The expression in the interest of ‘public order' are words of great amplitude and are much more comprehensive that which is enacted in the interest of public order may be saved from the vice of constitutional invalidity…”. “…The provisions of the section read as a whole, along with the explanations make it reasonably clear that the section aims at rendering penal only such activities as would be intended or have a tendency, to create disorder or disturbance of public peace by resort to violence”.

The court further clarifies that “, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order”.

“So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order”. “It must, therefore, be now taken as well-settled that words, deeds or writings constitute sedition punishable under Section 124A only if they incite violence or disturb law and order or create public disorder or have the intention or tendency to do so”.

Read more: Indian police harass primary school children for sedition

Here it would be pertinent to refer another case Manubhai Tribhovandas Patel Vs the State Of Gujarat 1971, wherein the book ‘Extracts from Mao-Tse-Tung’ was banned by the government on the ground of containing seditious matter. The Supreme Court of India after setting aside the restrictive order held that “the thoughts of Mao-Tse-Tung as expressed in these passages are with a view that the public may be able to study the principles and practice of Communism… They are not exhortations to our public to resort to violence or create public disorder with a view to subverting Government by law established in India”.

The court further held that “these passages expound the philosophy of Mao-Tse-Tung… to condemn them as seditious would be to close the doors of knowledge… and there can indeed be no real freedom unless thought is free and unchecked, not free thought for those who agree with us but freedom for the thought we hate. It is only from a clash of ideas that truth can emerge, for the best test of truth is the power of the thought to get itself accepted in the competition of the market”.

The doctrine of proportionality 

To conclude, in the words of Article 1 of the Code of Conduct issued for the judges of the Supreme Court of Pakistan that “on equiponderance stand the heavens and the earth. By equiponderance, oppression meaning unjust and unequal burdens is removed. The Judge's task is to ensure that such equality should prevail in all things”.

Therefore, the doctrine of proportionality, today, holds the status of a grundnorm in deciding whether the restrictions imposed on a fundamental right are reasonable and appropriate or not. It means whether the law regulating the fundamental human right is least restrictive in nature or choice of means to achieve the purpose of the legislation. And to decide the question: whether a matter falls within the ambit of sedition or not; the proportionality must be followed amid free speech and offence of sedition.

The writer is an advocate of the high court and writes on various topics. He can be reached at Khokhar.azeem@yahoo.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and teaches law.

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