On 30th March, 2023, the Lahore High Court declared Section 124-A of the Pakistan Penal Code unconstitutional for violating several of the rights guaranteed in the Pakistan Constitution, such as the freedom of speech and expression. This follows on the heels of the Indian Supreme Court putting the Indian equivalent of the same provision in abeyance while a process of review takes place on its efficacy and need. The Indian Supreme Court order, similar to the Lahore High Court judgment, takes note of the argument that the law of sedition, as Section 124-A is known, is used as a tool for the prosecution and targeting of views and activities that are critical of the Government or of powerful interests. The vague provision has been amenable to misuse even after several requirements were read into it by the Supreme Court most notably in 1962, such as an incitement to violence and the unlawful use of force.
The question of the constitutionality of the sedition provision has been recurrent both politically as well as legally. It has been pointed out that the provision was suited to the desires of a colonial government, and is fundamentally incompatible with a democratic and rights based legal system, where criticism of the Government should be considered an important right which cannot be suppressed by the threat of criminal law. The Lahore High Court, in its ruling, accepts this argument which leads to the conclusion of the provision’s unconstitutionality. There are obvious similarities in the rights based schema of the Indian Constitution, where the question of freedom of expression and the right to life have undergone extensive development through decades, and the question that remains to be seen is whether the Indian Supreme Court will eventually come to similar conclusions.
From a legal standpoint, it is necessary to clarify a certain argument in order to take this discussion forward. In constitutional law, it is often argued that mere misuse of a particular provision is not grounds to declare that the same is unconstitutional. This has been argued by those keen to defend these laws, that the provision by itself is perfectly valid and necessary, but has been misused. This was also the trend followed in 1962, where the Supreme Court upheld the constitutionality of the provision but attempted to thwart its misuse by adding conditions to when the law could be used. It is possible that the same argument may be made today, and was recently made to defend the constitutionality of another notorious provision, which was Section 377 of the Indian Penal Code (the provision criminalising sexual intercourse between people of the same sex).
The Lahore High Court judgment has proceeded to hold that misuse of the sedition law in Pakistan had attained such intensity and recurrence, that the law had to be held unconstitutional. Similarly, the Indian Supreme Court has held on several past occasions that the effect of a law has to be taken into consideration while deciding its constitutionality. A law can be designed and written in such a manner that on the face of it, it does not have a discriminatory nature. However, if the effect of implementation of that law is discriminatory and unconstitutional, then it should be struck down as being so. Further, if a law by its design is itself prone to misuse, it can be held unconstitutional. To an extent, this answers the use versus misuse argument if one can show that the law of sedition is so prone to misuse by its own design, that it must be held incompatible with the Constitution.
It must also be kept in mind that where criminal law is involved, the question of misuse of the law attains a completely different stature than in any other case. Criminal accusations by themselves invoke a very onerous and cumbersome procedure for the accused. The filing of an FIR entails reputational loss, the prospect of arrest, being subjected to searches and seizures, and a host of indirect consequences. These arise much prior to any question of actual guilt or innocence and even use or misuse of the law. Therefore, the use of criminal law must proceed with special caution and care, and where laws are designed to be abused, constitutional safeguards have to be applied to ensure that this cannot be the result.
Finally, it must be said that the judgment of the Lahore High Court puts into perspective the question of afterlife of colonial rule in the legal systems of both India and Pakistan. The entire nature and design of the law of sedition, which was used in the colonial period to maintain control over subjects, must be re-evaluated when it comes to the question of infringing the rights of citizens who hold a legitimate participatory role in the governance of the country and are entitled to be treated with dignity and respect for their rights. There are many forms of government power that are called into question here. The almost unlimited and indefinite detention of persons in custody without trial, the use of extra-legal mechanisms such as demolition of property instead of law, and similar abuses of government power are all called into question if we evaluate the question of sedition in its right context.
The judgment on sedition opens the door to question all the ways in which a thin veneer of legality is often used to deprive citizens of some of the most cherished rights in the Constitution. Often, the arguments of public safety and order that are used to justify these laws are substitutes for the uncontrolled authority of persons in power against any form of dissent.
Kunal Ambasta, Assistant Professor, NLSIU Bangalore. Views are personal.