Case against Sedition: Why a colonial-era law should go?

The sedition law, section 124-A of the Pakistan Penal Code, that is being used by the PTI government against both students as well as any protestors, including the PTM, is a colonial-era law that must go.

As lawyer and advocate, Babar Sattar, states “Our criminal justice practices are a product of part-apathy, part-inertia and part-malice. The system is designed to punish the accused. So pray to God you aren’t caught on the wrong side of the system.”

This particular section states that, “whoever… excites or attempts to excite disaffection toward the federal or provincial government established by law shall be punished with imprisonment for life…” Sattar argues “There are two sorts of bad law: laws blatantly oppressive to fundamental rights and settled principles of democracy, fairness and justice; and overbroad and poorly worded laws making them liable to be abused. Sedition law falls in both categories. It conceptually belongs to a time when rule of men reigned supreme and rule of law hadn’t yet evolved. Monarchs ruled by force and not by consent. Citizens were subjects, who neither had a role or say in installing government nor were allowed to criticize or remove it. They needed to be kept in check.”

Further, “The absurdity of the literal interpretation of sedition law was obvious even during colonial times. Back in 1942, CJ Gwyer of the Federal Court held while deciding Majumdar vs Emperor that, “the time is long past when mere criticism of governments was sufficient to constitute sedition, for it is recognized that the right to utter honest and reasonable criticism is a source of strength to a community rather than a weakness. Criticism of an existing system of government is not excluded, nor even the expression of desire for a different system altogether.” In a nutshell, as far back as 1942 courts established by our colonial masters held that only incitement of people to violence that could breach the peace and create disorder (and lead to overthrowing of government by force etc) would qualify as sedition. Our constitution allows for a mechanism to change the government. We have a coalition government at present. Why should it be an offence for example, for someone to advocate to coalition partners that they should withdraw their support for the government leading to its fall?”

Finally, “Section 124-A should be declared unconstitutional in its literal form, unless it is read down to mean criticism of government aimed at inciting violence. Why is it still being used to haul critical voices over the coals? Because citizens are still viewed as subjects. Their right to speak critically is to be controlled, as is their right to protest. If the criticism of the state by rabble-rousers begins to resonate, the state might feel accountable to the citizens and hence the need to control and shape public opinion. We are so accustomed to abuse of arrest power pending investigation and trial that we find nothing wrong with it. When you enter law school you are taught in Criminal Law 101 that an accused is arrested if s/he is: (i) a threat to society (often repeat offenders liable for heinous crimes); (ii) capable of destroying evidence; and (iii) a flight risk. (Monitoring and use of technology is now used to manage the flight risk bit instead of keeping accused under arrest). But this common sense approach is alien to us.”

Author: Shaista Sindhu

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Author: Shaista Sindhu