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Official Citation: 2023 LHC 1450
Court / Jurisdiction: Lahore High Court
Year of Decision: 2023
Decision Date: 2023-03-30
Parties: Haroon Farooq vs Federation of Pakistan & others
This judicial decision was delivered by the Lahore High Court on 2023-03-30. The matter involves proceedings between Haroon Farooq and Federation of Pakistan & others, officially reported as 2023 LHC 1450. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 2023LHC1450
Court Name: Lahore High Court Judge(s): Shahid Karim Title: Haroon Farooq vs Federation of Pakistan & others Case No.: W.P No.59599 of 2022 Date of Judgment:2023-03-30 Reported As: 2023 LHC 1450, PLD 2024 Lahore 637 Result: Petition Allowed
JUDGMENT
JUDGMENT Shahid Karim, J:-. This constitutional petition challenges the validity of Section 124-A of the Pakistan Penal Code, 1860 (PPC) which provides that: 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. Explanation 1: The expression "disaffection includes disloyalty and all feelings of enmity. Explanation 2: Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3: Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section." 2. The provision is titled Sedition and constitutes the offence of seditious writings and seditions libel. This offence has historical origins and was always an offence at common law punishable with imprisonment or fine on the direction of the court. According to the learned counsel for the petitioner, the provision is unconstitutional and offends the provisions of Articles 14, 19 and 19A of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"). In short, the petitioner invites this Court to square the provisions of section 124-A with Articles 14, 19 and 19A of the Constitution and to hold that since section 124-A contravenes and offends the fundamental rights
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enshrined in these Articles of the Constitution it is void in view of Article 8 of the Constitution which provides that any law insofar as it is inconsistent with the rights conferred by Chapter I Part II of the Constitution shall to the extent of such inconsistency be void. Standing: 3. The petitioner is a social activist and a public spirited individual. He has deep interest in the preservation of constitutionalism and representative democracy and has contended that the fundamental rights to freedom of speech and expression do not envisage the offence of seditious libel in its present form to be sustained. I have no doubt that the petitioner has standing to maintain this petition. In any case, none of the respondents have raised any objection regarding the standing of the petitioner. Apart from this, the issue broached in this petition touches upon the foundational element of every citizen's life in Pakistan and has the invidious potential to upend our lives suddenly and irretrievably. The counsels for the petitioner, Abuzar Salman Niazi, Barrister Daraab W. Furqan and Shezal Khan Burki, Advocates filed skeleton arguments and two bundles of case-law and related material which proved immensely useful and made certain that the legal challenge was soundly based. Mr. Abuzar Salman Niazi, Advocate led the arguments in this Court. History: 4. A reference to the historical facts would lend actuality to the analysis. The law of sedition was originally drafted in the year 1837 by Thomas Macaulay. Section 124-A was inserted in PPC in 1870 through Penal Code (Amendment) Act, 1870 and according to the learned counsel for the petitioner was a tool to be employed by the colonial masters to suppress and muzzle the peoples' voices of dissent against the government in power. Before the partition of sub-continent prominent politicians across the divide were tried under the sedition law and this trend has continued after partition of the sub-continent by successive governments which made use of the sedition law to suppress voices of dissent. He has pointed out that in Britain the law has been abolished through the Coroners and Justice Act, 2009 and in Australia following the recommendation of Australian Law Reform Commission it was repealed by the Australian legislature. In New Zealand the act of sedition ceased to be a crime following the introduction of The Crimes (Repeal of Seditious Offences) Amendment Bill in 2007. Similar examples have been cited by the learned counsel for the petitioner to contend that the crime of sedition and seditious libel is a relic of the past and civilized societies around the globe do not countenance its presence on the statute book. 5. The learned counsel for the petitioner has presented a literary piece by A.G Noorani published on August 14, 2021 in the magazine Frontline. A.G Noorani is a prominent activist, lawyer and journalist from India and the piece is titled Sedition in Freedom Struggle'. It refers to the history of the repressive laws of sedition and describes the history of India's struggle for freedom from British rule as the history of repressive laws of sedition in India. The article refers to the painstaking work by an English barrister at the Calcutta High Court Walter Russell Donagh, A Treaties on the Law of Sedition and Corporate Offences in British India which also engages a discussion on Vernacular Press Act which was sought to be introduced by the British colonists and the arguments made by British members of the Viceroy's Council which passed the Vernacular Press Act in 1878 a law which merely affirmed the law of sedition contained in Section 124-A which had already been introduced in the year 1870 in PPC. One of the members of the Viceroy's Council stated that: "This is the class that writes for the Native Press, perorates on platforms, and generally vents its spleen upon the government which has not been able to find appointments for more than a friction of its members. To honest, well-informed criticism no English government would ever object. But every government has the right to object when its critics wander off from criticism to calumny.... "No government such as ours in India can afford to allow the minds of an ignorant and credulous oriental population to be gradually poisoned and embittered by persistent calumny
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of the government and all its measures. If these sections lead to a more careful, well-considered and responsible journalism, they will confer a benefit not only on the state and the public, but on the journalistic profession itself. " 6. Speeches were made by other members which were to a similar effect and which primarily noted that British government could not afford to allow the minds of an ignorant and credulous oriental population to be gradually poisoned and embittered by persistent calumny of the government and all its measures. The article by A.G Noorani then goes on to refer to the trials of Tilak in the following words: Tilak's two trials (1897 and 1908) for sedition exposed the falsehoods in the apologies of the draftsmen of the offence of "sedition", which was to be later inserted in the Indian Penal Code. All the top leaders of the Indian National Congress were convicted of sedition--Mahatma Gandhi (1922), Maulana Azad (1922), Jawaharlal Nehru (1921, eight times.) There is, however, one case which Tilak won. On July 22, 1916, in the Court of the District Magistrate of Poona, information was lodged against Tilak citing his speeches. He was asked to show cause why a bond of Rs.2,00,000 for "good behaviour" for one year should not be required of him under Section 105, 112 of the Criminal Procedure Code. Mohammad Ali Jinnah went all the way to Poona to defend Tilak but lost. On August 12, 1916, the Magistrate held against Tilak. Jinnah moved the High Court and won. The order was quashed. 7. One of the founding fathers of the present India, Jawaharlal Nehru said in Parliament on May 29, 1951: Take again Section 124A of the Indian Penal Code. Now so far as I am concerned that particular section is highly objectionable and obnoxious and it should have no place both for practical and historical reasons, if you like, in any body of laws that we might pass. The sooner we get rid of it the better. We might deal with that matter in other ways, in more limited ways, as every other country does, but that particular thing, as it is, should have no place, because all of us have had enough experience of it in a variety of ways and apart from the logic of the situation, our urges are against it." Nevertheless, in 1962, the Supreme Court of independent India upheld Section 124A of the Penal Code, which defines the offence of sedition, albeit with a tortuous proviso that made no sense. It is deeply worrying that the BJP government, headed by Narendra Modi, should use Section 124A to imprison student leaders and prosecute political leaders." 8. Jawaharlal Nehru was also tried for the offence under Section 124-A as many as eight times. Finally the learned author referred to a judgment by Allahabad High Court regarding section 124-A Ram Nandan v State' I.L.R (1958) 2 All. 84 and stated that each of the learned judges wrote a judgment of considerable learning and cogency of reasoning. The full bench of three judges Allahabad High Court unanimously held section 124A to be void. This was however upset by the judgment of the Constitution Bench of the Supreme Court of India in a later case on January 20, 1962 reported as Kedar Nath Singh v The State of Bihar (1963) 1 MLJ 40 (SC). A.G Noorani also referred to the view of Lord Denning who said that the offence of seditious libel is now obsolete". 9. Ms. Asma Hamid, amicus curie, filed a brief. She alluded to the history of the law and also referred to a cluster of case law from different jurisdictions. It was brought forth in the brief that the status of sedition laws has been currently put on hold by the Supreme Court of India until the government reexamines it. The authorities from the United States and Australia have also been referred in the brief submitted by the amicus and which refers to the judgments handed down by the courts in these jurisdictions articulating the concept of freedom of speech and expression. Ms. Asma Hamid referred to a case decided by the Supreme Court of Gambia which adjudicated on the constitutionality of laws relating to the offence of sedition. In conclusion, Ms. Asma Hamid suggested this Court to follow the example of Supreme Court of Gambia on the ground that the
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present case had identical facts to the one before the Supreme Court of Gambia where the provisions relating to sedition were held to be intra vires the constitution. In that case, the Supreme Court of Gambia was of the view that the courts should not decide upon constitutionality in the abstract and only real cases should be decided which give rise to questions of constitutionality. 10. The decision of the Supreme Court of Gambia is, in my opinion, an inapt example to follow for any court under a constitution which guarantees constitutional rights including the right to freedom of speech and expression as also guarantees freedom of press. It also does not comport with the rule laid down by the courts in Pakistan that not only that a challenge can be laid if a person is directly affected by an act under a law but a challenge can successfully be maintained if there is a potential for abuse of a provision mentioned in our criminal laws. For, a person cannot be compelled to wait for his right to be infringed in order to bring a challenge to a particular provision in the law which in his opinion disregards a clear constitutional mandate. The right to dignity enshrined in the Constitution confers upon a person to bring a challenge irrespective of whether criminal prosecution has been set in motion or not. The right to dignity supports a prior challenge in any matter and in particular in the present case. It is also inextricably linked with the concept of abuse of process of law which will be triggered as soon as prosecution is alleged against a citizen. The courts cannot allow a provision to stand and article 19 to be violated before ruling whether a fundamental right has been violated or not. If we are called to make policy preferences then I would be compelled to take a leaf out of the progressive view of developed and liberal constitutional democracies which have done away with the law of sedition rather than relying upon a decadent view taken by the Supreme Court of Gambia. That example does not serve as blazing a trail to be followed. Our Parliament has been slow in realizing the urgency of repealing the law of sedition and so it is for the courts to step up and protect constitutional rights of the citizens. 11. The English background to the repression of ideas and the crimes of seditious libel has been brought forth in The First Amendment and the Fourth Estate, The Law of Mass Media by T. Barton Carter, Marc A. Franklin, Amy Kristin Sanders, Jay B. Wright (Eleventh Edition) as follows: In England, repression of ideas antithetical to the government dates back to the 13th century. In 1275 and again in 1379, Parliament made it criminal to speak against the state. Later known as seditious libel," words, that questioned the crown in any way were punished by the King's Council sitting in the starred chamber." Ecclesiastical laws forbidding heresy already existed, thus making it dangerous to say anything in opposition to the Church or the state. With the advent of printing, around 1500, the government became even more concerned about statements that questioned the secular powers. To prevent the wider dissemination that the printing press made possible, the Crown established a system of censorship, similar to one already used by the Church, for all publications. This repression lasted until almost 1700. The core of the censorship system was licensing. In the Elizabethan era, the system was overseen by agencies of the Queen. The Stationers Company, established in 1556, gave a select group of London printers a monopoly over all printing in the country. Its members had the exclusive right to print certain categories of books, such as Bibles and spellers, and could search other printers' offices to look for "illegal" materials. Because all printed matter had to be registered with the Stationers Company, complete prepublication review was possible. Violators of the licensing system were tried by the infamous Court of the Star Chamber, which became notorious for its secret proceedings and severe punishments. For example, William Prynn's book, Histrio-Mastix, published without permission, said only whores acted in plays. The book appeared six weeks before Queen Elizabeth appeared briefly on stage, but Prynn was convicted of ridiculing the Queen. He was sentenced to a fine and life imprisonment, to be pilloried, and to have his ears docked.
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Bonding was also a part of the licensing system, forcing printers who were not part of the Stationers Company to post a large sum of money, known as a bond, before being granted a license to print. Publishing anything in opposition to the Church or crown meant forfeiture of the bond. An unlicensed publication meant more. It could lead to charges of criminal libel, which was divided into four categories; (1) blasphemous libel involved heretical statements opposing the Church; (2) obscene or immoral libel dealt with unpermitted literary subject matter; (3) private libel involved offending words directed to private individuals, which also could lead to civil action (suing the publisher for monetary damages to assuage the harm to the offended person's reputation); 4 seditious libel was criticism of the crown. Frederick Siebert in Freedom of the Press in England 1476-1776 (1952) said that "convictions for seditious libel ran into hundreds" during the 17th and 18th centuries in Great Britain." 12. Thus, at common law, the crime of seditious libel dates back to the year 1275 and constitutes words that question the crown in any way and was punishable by the King s Council. In short, seditious libel was criticism of the crown. It can be seen from the above statement that convictions for seditious libel ran into hundreds in the Great Britain. At a later time, Criminal Libel Act, 1819 was enacted and it was an offence at common law punishable with imprisonment to publish orally seditious words with a seditious intention or to publish matter containing anything capable of being libel with a seditious intention. The following statement from Halsbury's Laws of England (Fourth Edition) (Volume 11) captures the law relating to sedition in the United Kingdom: "828. Seditious words and seditious libel. It is an offence at common law, punishable with imprisonment or fine at the discretion of the court, to publish orally seditious words with a seditious intention or to publish matter contained in anything capable of being a libel with a sedition intention. In the case of seditious libel there must be an incitement to disorder and violence. Free comment, criticism and censure must, however, be distinguished from seditious words or seditious libel. A speech in either House of Parliament is privileged, but if the member afterwards publishes his speech it may constitute seditious libel. The publication of seditious matter by a newspaper in a bona fide report of proceedings in a court of justice or in Parliament is privileged and the publisher is not liable. It is uncertain whether the composition of a seditious writing with the intention that it should be published, but without actual publication, constitutes seditious libel." 13. It would be borne in mind that seditious libel is not an offence anymore and as such has been repealed in the United Kingdom. The courts however extended the right of free speech even under the Criminal Libel Act, 1819. For instance, in R v Sullivan and R v Pigott (1868) 11 Cox CC 44 at 49, it was held that: "the freest public discussion, comment, criticism, and censure, either at meetings or in the press, in relation to all political or party questions, all public acts of the servants of the Crown, all acts of the government, and all proceedings of courts of justice are permissible, and no narrow construction is to be put upon the expressions used in such discussion etc., but the criticism and censure must be without malignity, and must not impute corrupt or malicious motives." 14. Similarly, in R v Collins (1839) 9 C & P 456 at 460, 461, per Littledale J, it was stated that: "...every man has a right to give every public matter a candid, full and free discussion; something must be allowed for feeling in men's minds and for some warmth of expression, but an intention to incite the people to take the power into their own hands and to provoke them to tumult and disorder is a seditious intention..." 15. Thus, the courts in U.K did not limit free speech and in particular political speech relating to matters of public interest and did not suppress the candid, full and free discussion and criticism in relation to all political or party questions and all public acts of the servants of the Crown and
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limited the offence to an intention to incite the people to take the power into their own hands and to provoke them to tumult and disorder which was held to constitute seditious intention. This was in sharp contrast to the construction section 124-A received at the hands of Judges in sub-continent during the pre-partition days. They have been discussed in Kedar Nath Singh by the Indian Supreme Court. For instance, in Queen Empress v Balagangadhar Tilak (1898) I.L.R 22 Bom. 112, the following statement of law defines the crime of sedition: "You will observe that the section places on absolutely the same footing the successful exciting of feelings of disaffection and the unsuccessful attempt to excite them, so that, if you find that either of the prisoners has tried to excite such feeling in others, you must convict him even if there is nothing to show that he succeeded. Again, it is important that you should fully realise another point. The offence consists in exciting or attempting to excite in others certain bad feeling towards the Government. It is not the exciting or attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or small. Whether any disturbance or outbreak was caused by these articles, is absolutely immaterial. If the accused intended by the articles to excite rebellion or disturbance, his act would doubtless fall within section 134A, and would probably fall within other sections of the Penal Code. But even if he neither excited nor intended to excite any rebellion or outbreak or forcible resistance to the authority of the Government, still if he tried to excite feelings of enmity to the Government, that is sufficient to make him guilty under the section. I am aware that some distinguished persons have thought that there can be no offence against the section unless the accused either counsels or suggests rebellion or forcible resistance to the Government. In my opinion, that view is absolutely opposed to the express words of the section itself, which as plainly as possible makes the exciting or attempting to excite certain feelings, and not the inducing or attempting to induce to any course of action such as rebellion or forcible resistance, the test of guilt. I can only account for such a view by attributing it to a complete misreading of the explanation attached to the section, and to a misapplication of the explanation beyond its true scope." Thus, it was concluded that plainly, the exciting or attempting to excite certain feelings to the authority of the Government was sufficient to constitute the offence. The Judicial Committee of the Privy Council did not dissent from the view and refused to grant leave to appeal. It follows that section 124A is quintessentially a colonial law and has its genesis in the colonial rule. It was enacted to perpetrate and entrench British rule in the sub-continent. It has to be distinguished from other crimes which are commonly found to afflict a human society. Sedition belongs to the species of offences which had no other purpose but suppression of people's voices by the colonial masters. 16. In the historic days, in particular for seditious libel, the Jury decided whether the defendant had published the material and whether it carried the meaning charged by the government. Judges decided whether the words were published with malice and had a bad tendency to damage the government, usually the two crucial points. The defendant could not plead the truth of the words as a defence; indeed truth made the offence more severe because truthful charges would increase the public's disrespect for the crown. 17. Blackstone, an English jurist, was a major influence on English and American legal thinking in the period when the U.S Constitution was taking shape. He made a distinction between liberty and licentiousness for which the punishment was considered legitimate. The colonial experience which shaped the framing of the U.S Constitution has been summarized in the First Amendment by the authors in the following words: "Those who drafted and adopted the U.S. Constitution and the Bill of Rights were well aware of this history of repression in Great Britain. They also knew of, and had experienced, similar restrictions on freedom of expression that Britain had imposed on the colonies.
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Laws that applied to the press in England during the 17th and 18th centuries were also applied to the emerging colonial press, and the licensing of presses in the colonies closely paralleled the English practice. Colonial printers were jailed, and their books burned, for publishing without permission. In 1662, Massachusetts appointed censors. When Benjamin Harris printed the first edition of Publick Occurrences in 1690, it became the last edition of that newspaper; he had not gained prior approval. The colonies' second newspaper, the Boston News-Letter, published by John Campbell beginning in 1704, clearly informed its readers that it was printed with authority. After Parliament abolished licensing at the end of the 17th century, the colonial governors managed to retain it for several years more. Its decline in the colonies began in the early 1720s when James Franklin, Benjamin's brother, ignored an order to have his New England Courant licensed. He was briefly punished and once substituted his brother's name as publisher, but his refusal to obey the order brought licensing to a halt. In both England and the colonies, the threat of punishment after the fact for matters the authorities…
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