Things You Cannot Express – According to Pakistani Law

freedom of speech

Things You Cannot Express – According to Pakistani Law

Introduction

Human beings have marshaled for centuries. Unfortunately, the person in chains according to Rousseau still quests to gain the right which has become a privilege i.e. free speech. The mean-spirited tales from the dim past of mankind recount the accounts of unspeakable miseries and torture which the champions of free speech have been made to suffer. What shakes the collective conscience of humanity is the merciless resemblance of our enlightened age with that of the bygone era bereft of civility insofar as putting fetters on tongues is concerned. Nonetheless, this advocation must not be comprehended as a case for absolutist freedom rather a freedom which is “reasonably restricted”.

Conceptual Basis

Art. 19[1] of the Constitution of Pakistan 1973, the relevant provision in this connection, is reproduced hereunder for the facility of reference: 

“Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence.”

The freedom of speech is an inevitable precursor of not just the establishment but also the successful continuation of democratic dispensation,[2] for the automobile of democracy runs on the gasoline of public opinion.[3] Contrary to popular perception, freedom of speech, as a right, is not constricted to words spoken or written but also takes into fold every manner of dissemination of ideas e.g. signs, gestures, etc.[4] as is visible from the use of the word “expression” besides “speech” in Article 19. The right also covers cases involving “commercial speech” (by corporation) and “artistic speech” including dancing, painting, signing, writing poetry, etc.[5] It, in extension, encapsulates the freedom of ‘propagation’, ‘publication’ and ‘circulation’ of ideas[6] both individually or through media. Simply put, it means right to receive information and impart the same. In the words of Frederick Douglass:

“To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.”

The right to free speech inculcates political maturity, leads to the discovery of truth and grants decisional latitude.[7] Interestingly, the freedom to speak has a corresponding right to remain silent and declining to express oneself as well.[8] Though the right needs mechanisms for enforcement, even in their absence no violation of that right will be permitted, as rights exist independent of their mechanisms.[9] It is nonetheless noteworthy that the state is responsible to ensure the right to free speech and is liable for the dereliction of duty by its action as well as inaction. Freedom of press is also part of the legal provision and is no more than what has been granted to an ordinary citizen.[10] The importance of the right can also be inferred from the fact that it finds mention not only under fundamental rights but also in the preambles to different constitutions of the world, either directly or indirectly. For example, in the Indian Constitution, it’s been directly mentioned as the “liberty of thought and expression” while in the Pakistani and American Constitutions, it has been mentioned indirectly under a general commitment to guarantee freedom and liberty to citizens. Ironically, the Constitution of the Kingdom of Saudi Arabia doesn’t mention the right to free speech at all. The only commitment to such a right can be found under article 26 of the Saudi Constitution which says that human rights shall be awarded as per Islamic shariah, which could practically circumscribe the scope of such a liberty according to what is amenable to the juristic reasoning of the leading clerics of the prevailing religious school of thought. The collective reading of the Saudi Constitution, however, shows unwavering resolve of the state to fight the satanic forces of sedition.[11]

Right to Information (Article 19-A)

Post the Eighteenth Amendment to the Constitution of Pakistan, another right has been injected into Chapter 1, Part 2 of the Constitution which serves as a pivot upon which the whole concept of “liberal democracy” rests. It stresses upon transparency which in turn aims to minimize the arbitrariness of public authorities. Legally, the introduction of a separate article highlights the importance of the right otherwise covered implicitly under Article 19.[12][13] The philosophical underpinnings of such a legal ruling may have to do with a free, accurate and uninterrupted flow of information. Similarly, the notion of “informed choice” is put to shame if one is not allowed access to information and anything said or done (freedom of expression) in such a situation will be distorted or divorced from reality. Proponents of the other side argue that it is too broad an interpretation of the term and that correct information is not an inevitable prerequisite to the right of free speech. The right to information, they posit, is only relevant to information passing from the government to individuals or other bodies, and even if this specific form of information is not made accessible to people, the right to free speech still exists through other means.

Purposive Approach

A fundamental question of jurisprudence is whether rights exist independent of their need or utility. In other words, whether a person is entitled to the right of free speech even if it doesn’t serve any good. The categorical school’s approach in this case seems well-put and more in line with the requirements of justice and equity, positing that a right is a right and must be respected even if it fetches no one any good. But the consequentialist approach tends to differ and submits that a right is to be venerated only if it serves some great purpose or leads to something good.[14] Article 19 seems to have taken influence from the consequentialist approach.

Reasonable Restrictions

“We have freedom of speech, but you got to watch what you say.”

– Tracy Morgan

Jurisprudentially, absolute freedom is an absolute myth. Even the US Supreme Court has refused to attest to the ‘absolutist interpretation’ of the First amendment.[15] Further dissection of the concept reveals that the state, as a custodian of liberty, has to perform two functions simultaneously i.e. guaranteeing the right of free speech and putting fetters on the licentious use of the same, for the state owes an obligation to safeguard the rights of the society as a whole.[16] Sanctions and limits to free speech must still be guided by the principles of law and operate within the constraints set by it i.e. the restrictions must be reasonable.[17][18] As a general rule, the right is exercisable only to the extent that it does not harm the rights of others,[19] as a famous adage also points out: “your freedom ends where my nose starts!”

It also needs be remembered that a reasonable restriction can only be imposed through a statute or mandated by law and not otherwise. Moreover, the statutory authority empowered to do so has to act reasonably.[20] It is also to be borne in mind that no restriction, however reasonable it may appear, should be imposed beyond the parameters of Article 19.[21] However, there is no absolute test to ascertain if a restriction, so imposed, is a reasonable one and it is up to the courts of law to adjudicate the same.[22] This being a discretionary power must be reasonably, judicially and judiciously exercised.[23] For instance, the “clear and present danger” test has been held to be a reasonable restriction by the American courts.[24] In order to define the standard of “reasonableness”, the court has prescribed a catalogue of factors to be taken into account, including the circumstances and causes of putting restrictions, the manner of their imposition, the extent and duration of the restriction, the nature of the right violated, the extent of malice to be prevented or remedied, and the disproportion of the restriction.[25] It is in this context that under the Constitution of Pakistan the following restrictions have been imposed on the exercise of free speech:

1. Glory of Islam

In the Islamic Republic of Pakistan, any manner of expression derogatory to or belittling, tarnishing and distorting the tenets or message of Islam is unconstitutional.[26][27] In fact, no religion on earth can be defamed under the pretext of freedom of speech.[28] Blasphemous speech is barred on two counts i.e. being insulting and condescending to the glory of Islam and for having the potential to incite unmanageable violence.

ICCPR 1966[29] mentions that religious freedom “may be subject only to such limitations as are prescribed by law and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” But this exception is often taken as a tool to suppress legitimate causes, e.g. in 2012, the Tunisian government linked a popular uprising with artwork and films considered to be desecrating Islam. As a consequence, punishments were handed down to artists. A constitutional provision to the effect of criminalizing all attempts “against anything sacred” on the grounds of public order was also made. The government went as far as applying the ratio set in Schenck v. United States barring even a shout of “fire” in theaters.[30]

2. Integrity, Security and Defence of State

a. Integrity

Any attempt to disintegrate Pakistan, fuel any fissiparous tendencies, or preach cession by any means of expression is liable to be censored. Sedition[31] is also an offence, though mere disapprobation towards the state is not.[32] Distinction should also be made between a “government established by law” and a person carrying on administration. What is prohibited under  s.124 PPC 1860 is not the criticism of the government but it’s subversion by violent means.[33]

b. Security

Any attempt to jeopardize the security of the state comes within the ambit of this provision. Any act which poses an existential threat to the state will also be deemed to be corrosive to state security. However, it must be understood that not every category of public disorder can be categorized as a threat to the security of state – it refers only to grave, serious and aggravated forms of public disorder including rebellion, war against the state, insurrection and not ordinary breaches of public order such as unlawful assemblies, affrays and riots.[34] The expression “security of Pakistan” also includes the security of any part of Pakistan. Advocacy for change of government, ipso facto, how ever diametrically opposite to the incumbent one, is not unconstitutional as long as such change is brought or attempted to be brought by constitutional means.[35] This would mean that even communism or socialism could be ushered in only through ballot and not by violent or extra-constitutional means.[36] The courts have also validated statutes preventing violent overthrow of government that could take place through acts of anarchy and sedition, acts criminalizing insubordination in the armed forces and laws relating to treason, espionage and official secrets. Criticizing the government[37] and high dignitaries of the government[38] and exhibiting “disapprobation or bad feelings”[39] towards the government are all allowed as long as they do not entail a breach of peace or undermine the security of the state.

Finally, it must be ensured in all circumstances that there is a “reasonable relation” and “rational nexus” between the exercise of the right of free expression and breach of peace, if an expression is to attract a restriction based on the “security of state” clause.[40]

c. Defence

Any attempt to bring disgrace to the armed forces of Pakistan, any act of supporting enemy defence lines and the carrying out of synonymous acts shall come within the preview of this provision.

“…the liberty of speech and expression cannot be allowed as a means of liquidating the state.”[41]

3. Friendly Relations with Foreign Countries

It is a well-settled principle of law that states in their relations with other states are generally responsible for acts committed by persons within their respective jurisdictions. While citizens have an inalienable right to criticize even foreign governments, states tend to criminalize acts such as libel emanating from their soil against foreign dignitaries which could jeopardize their relationship with each other.[42] Section 3 of the Security of Pakistan Act 1952 also envisions restrictions on the mobility of persons suspected of acting with prejudice towards the external affairs of Pakistan.

4. Public Order

The expression “public order” is often used interchangeably with “pubic peace and tranquility”, which in turn is distinguishable from an incident of national upheaval, civil strife, war, “law and order” situation or threat to “security of state” as it refers to unrest at a local level. The term “public order” refers to conditions under which the orderly functioning of government can continue. The term “public safety” has comparatively limited scope than “public order”, for the latter denotes the absence of internal order and a rebellion-like situation.[43] An act prejudicial to public order must necessarily affect the public at large and not just an individual.[44] The constitutional protection of free speech[45] does not extend to expressions disturbing or likely to disturb public order e.g. hate speech,[46][47] blasphemy,[48][49] speeches imperiling public order which are also punishable under section 144 and 107 of CrPC 1890,[50] communal disturbances,[51] strikes to spark unrest among workers[52] and speeches prejudicially reflecting upon the supply of essential services and commodities.[53] Offences against public peace such as rioting and unlawful assembly are criminalized under chapter VIII, PPC.[54] Similarly, restrictions on the freedom of expression under various public safety laws[55][56] for the purposes of maintenance of public order have been held to be valid by the courts of law. Interestingly, public order includes public safety[57] as well as an anticipated public disturbance, be it local or general, if it jeopardizes public safety and is thus not entitled to the constitutional protection under Article 19. But, mere criticism of the government cannot be held as grounds for public disorder.[58] Lahore High Court’s ruling in Muhammad Safdar versus West Pakistan[59] which invalidated the requirement of a permit from the Deputy Commissioner for using a loudspeaker in a public place has been criticized as being wrong,[60] for the legislature may, in the wider interests of the whole community, shackle the freedom of persons including their right to use loudspeakers in a public place where the requirement to seek prior permission should not be translated as denial of the fundamental right to free speech.[61] An anticipatory measure to maintain public order such as under s.144 CrPC has also been declared as a valid action.[62] A vitriolic attack on the integrity and character of the Chief Justice of a High Court, though condemnable in every form, has no link with the maintenance of law and order.[63]

The nexus between the imposed restriction and the achievement of public order must not be remote, far-fetched and hypothetical, rather it must be direct, reasonable, proper and proximate[64][65] e.g. an instigation to one person not to pay tax wouldn’t destroy public order.[66]

The test to check if an act affects public order is whether its commission occasions disturbance in the current life of the community or whether it affects an individual only, leaving the tranquility of the society unaffected.[67] The words “in the interest of public order” include not only utterances which are intended to disrupt the order of society but also extend to expressions which have the tendency, by their very nature, to cause public disorder, though unintended.[68]

5. Decency or Morality

Freedom of expression does not extend to ‘indecent’ or ‘immoral’ publications and utterances that run counter to the prevalent standards of “decency and morality”. Nonetheless, an obscene act will probably come within the ambit of the phrase “decency and morality” which has a wider scope. However, this phrase is seen as too vague to admit a precise juridical connotation[69] as the concepts of decency and morality are relative and have a chameleon character varying geographically. The identical expression used in English common law is “obscenity” which is much restrictive in scope as compared to “decency and morality”. For a speech to be allowed in England it needs not be obscene only whereas in Pakistan it must satisfy the cannons of decency and morality as well. The courts must, as a rule of mandatory caution, decide the questions of morality, decency or even obscenity as per the existing and generally accepted notions of a given society.[70]

Obscenity, jurisprudentially, is a highly contested concept. Initially, the Hicklin test was around as the most dominant one in this connection, floated by the Lord Chief Justice Alexander Cockburn while writing for the Queen’s Bench. He postulated that material would be obscene if it had the tendency to deprave and corrupt minds with immoral influences[71] and ignite the most libidinous and impure thoughts.[72] However, the test was too tough against the literary, scientific and artistic value of certain works.

The Hicklin test got toppled in a case titled United States v One Book Called Ulysses. The question was whether a book titled Ulysses by James Joyce could be imported and consequently sold in the United States. Judge Woolsey assessed the literary capital of the entire work and analyzed its impact on a person with average sexual instincts. Under the earlier Hicklin test, the mind of the person concerned would be assessed as to whether it would be open to immoral influences, but in the case at hand, such a threshold was lowered and moderated and a person, for the purposes of the test of obscenity, was required to have average sexual impulses only. The judge went further to define “obscene” as something “tending to stir sex impulses or lead to sexually impure and lustful thoughts.” The ruling laid down was, however, upheld in appeal with the finding that Ulysses was not a dirty book.[73]

Subsequently, the Hicklin test was overruled by the celebrated Roth test formulated in the case titled Roth v United States (1957). The US Supreme Court phrased the test in the following words from the judgment authored by Justice Brennan,

“…whether to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest.”

The Roth test was, in significant ways, different from the earlier test. Besides lowering the bar for the depravity of the person concerned, it went on to provide a communitarian definition of obscenity bearing in mind moral relativity across a diverse nation. In addition, it also cautioned against the piecemeal and truncated portrayal of the object under scrutiny by cherry-picking certain things divorced from their context and required instead that an overall cumulative appreciation of the subject be conducted so as to have a profound idea about the subject of investigation.[74][75] Also, the test required that an obscene object must have been “patently offensive” and “utterly without redeeming social importance” (or value).

The test, however, had its own shortcomings. The introduction of the “community standard test” was nonetheless commendable but to leave something to the subjective judgment of a society would objectively militate the certitudes of morality, for morality axiomatically is always universal and not local, particular or restrictive. In addition, the phrases “patently offensive” and “utterly without redeeming social importance (or value)” were too imprecise to allow for a definitive and conclusive definition, which later also led Justice Potter to pronounce the famous “I know when I see it[76] (test), but which was still subjective. It would also be very difficult to determine what is of value to society, for “value” may have a myriad of interpretations, e.g. economic, social, cultural, political, etc. and then there would be a concomitant problem as to which of the values should be preferred should they clash.

In our jurisdiction, cases emphasize the probable effect of the “object” reprehensible to “decency and morality” and not merely the “tendency” of the publication.[77] Obscenity subsequently has also been defined as anything unchaste, lewd, indecent and lustful[78] and calculated to inflame passions.[79]

The Indian Supreme Court accepted and applied the Hicklin test and banned the selling of a book Lady Chatterley’s Lover under S.292 of the Indian Penal Code.[80] The decision has been criticized for applying an outdated test, being obscure and having the tendency to curb guaranteed freedoms. Times have radically changed since what may have been considered ‘immoral’ in the past may be the accepted practice today e.g. birth control.[81]

It is the duty of the state to ensure that no one depraves or corrupts society on the pretext of freedom of expression.[82] Sections 292-294, PPC criminalize the possession, sale and import of obscene books, pamphlets and paintings, etc. and also attach a penal sanction. Manto’s story Thanda Gosht had also been held to be a figment of obscenity under S.292 PPC and it was held that the words employed in any writing must have been viewed in a cultural context in which they had been published and read.[83]

A balance should be cultivated between the freedom of expression and the standards of decency and morality. The determination of obscenity should be left to the courts of law wherein expert evidence may also be examined.[84]

6. Contempt of Court

The Constitution of Pakistan[85] defines contempt of court as anything having the tendency to

  • interfere with the due course of justice;
  • scandalize the court;
  • prejudice the determination of subject-matter; and
  • any other thing.[86]

No one is allowed, in the exercise of freedom of expression, to interfere with the due course of justice or lower the prestige or authority of the court.[87] In Pakistan, anything having the propensity to interfere with the orderly functioning of justice is treated as contempt. The aim is to prevent the scandalization of courts and judges in order to enable them to administer justice while being unruffled by extraneous pressure and facilitate them “in doing the right thing and work for the majesty of law, without the feeling of fear or favour hovering over their heads.”[88] Mohsin Tirmizy, a District and Sessions Judge, had been placed under a disciplinary inquiry before the High Court for describing judges of the High Court as “evil designers”. He was found guilty of “contempt of the grossest kind” and sentenced to imprisonment along with a fine of PKR 2,000.[89]

The Supreme Court of Pakistan has recently raised concerns about sub judice matters being made points of discussion on media channels, as the propensity to affect the minds of judges might lead to partiality and eventually miscarriage of justice. The apex court has also raised that even though judges are wired to ignore extraneous considerations while adjudicating upon matters, the mere possibility of such considerations, however remote and inconsequential, is sufficient for the law to step in and prevent the breach of the right to fair trail of the accused person under Articles 10-A and 4 of the Constitution of Pakistan.[90] In an earlier decision, the top court prescribed the media to restrict itself to factual reporting of sub judice matters and only open them for inquiry and critique after the final decision had appeared.[91] It is for this reason that despite guaranteeing immunity to the Members of Parliament from prosecution regarding utterances made in Parliament,[92] they are still prevented from bringing into discussion the conduct of the superior judiciary.[93][94] Furthermore, no personal attacks by the media against a person or institution will be tolerated.[95]

The right to expression does not protect from contempt of court, hence, it is subject to Article 204 which codifies the law of contempt of superior courts[96] and according to which the High Court and Supreme Court have power to punish incidents of contempt.[97]

However, a fine line must be drawn between a “statement of facts” and a baseless attribution of injustice, unfairness and partiality to judges. The former is covered as an exercise of the duly accorded right to free speech (and “fair comment”) while the latter exposes the accused to penalty. The Supreme Court of India, while dealing with contempt of court in a newspaper article, has finely distinguished the two in the following words:[98]

“If the allegations contained in the article were true, obviously it would be to the benefit of the public to bring these matters into light. But if they were false, they cannot but undermine the confidence of the public in the administration of justice and bring the judiciary into disrepute.”

The Supreme Court of India has observed that freedom of speech should always prevail, except where contempt of court is manifest, mischievous or substantial.[99] However, an honest criticism of a judgment in temperate language and without any ulterior motive should not be taken as contempt,[100] for “justice is not a cloistered virtue”[101] and the acts of judges are not above criticism.

7. Incitement to an Offence

An “offence” is defined as “any act or omission made punishable by any law for the time being in force.”[102]

Any voice exciting the public to commit an offence, whether major or minor, cognizable or non-cognizable, is outside the blanket of constitutional protection under Article 19 of the Constitution of Pakistan. Jurisprudential appraisal reveals that liberty is always conditional upon the manner of its exercise and if found detrimental to others or the state or the emanations of the state, the right ceases to be. The legislature has the authority to impose restrictions on the freedom of expression, provided that the court also holds such restrictions to be reasonably necessary to prevent incitement to crime. In deciding such a question, the court has to consider the nature, extent and duration of the restriction and its relation with the prevention of incitement to crime as well as all surrounding circumstances.[103] In State of Bihar vs. Shailabala Devi,[104] the Supreme Court of India held that incitement to murder or other violent crimes would generally endanger the security of the state, hence a restriction against such incitement would be legally valid. The Supreme Court of Pakistan has also recently barred the media from covering and airing inflammatory content from a religious party considered to be fanning the flames of violence in the name of religion.[105]

It must, however, be noted that incitement is not merely advocacy of an abstract doctrine. Where there is no danger that such advocacy will immediately be followed by practice, there is no incitement to the commission of an offence.[106][107]

Sections 298 (c) and (d), PPC, independent of and together with each other, the way they stand, are also considered to be violative of fundamental rights for they bar Ahmedis from preaching and propagating their beliefs.[108] This, however, is a legally disputed area for Article 19 of the Constitution of Pakistan which despite guaranteeing the freedom of expression, appends a restriction “in the interests of glory of Islam” which means that anything derogatory to Islamic tenets will be considered unconstitutional.

The provisions of PPC relating to abetment, sedition and statements conducive to public mischief[109][110] also fall within the restrictions of freedom of speech.

Philosophical Restrictions

Apart from the law, there are certain philosophical doctrines that impose restrictions upon the exercise of free speech:

a. The Civility Rule

The protocols of elemental civility merit that a decent speech be made decently. If the content is not offensive, but the manner is, then that speech should not be permitted and vice versa. A criticism against this preference of form over content is that it is a hollow and shallow a criterion.

b. The Harm Principle

S. Mill is deemed to be the most vocal proponent of liberal speech. He even defends unconditionally the right to immoral speech and also recognizes the right of one to speak against the whole of humanity. But the only known limitation to his thought is if such speech causes harm to others. He explains that if a corn dealer is responsible for the starvation of the poor, the corn dealer should not be publicized as such before an angry mob, as there may be harmful consequence.[111][112]

Daniel Jacobson argues that Mill distinguishes between legitimate and illegitimate harm and only disapproves of the latter. Mill would not object to financial harm (legitimate) being caused to the corn dealer but would disapprove of physical harm (illegitimate). Other examples of harm would include blackmail, libel, advertisement of untruths about commercial products, or advertisement of dangerous products to the children (e.g. cigarettes).[113]

This principle seems to be rationally sound and serves to explain the shortcomings of Article 19 of the Constitution of Pakistan as well. While the said article does not mention the harm principle, in practice many laws prohibit certain human conduct on the grounds of self-harm or harm to others. Such laws may include those obligating the wearing of helmets, not driving over the speed limit, or choosing specific roads to drive on, etc.

According to the harm principle, false advertisement causing harm to humanity is also not allowed, yet we see that Article 66 of the Constitution grants blanket immunity to Members of Parliament in expressing themselves on the floor of the House (except when it comes to the sanctity of judiciary), which could potentially lead to jingoistic violence, causing harm to all.

c. The Offence Principle

This principle comes from criticism of Mill’s harm principle. Joel Feinberg, exponent of the thought, opines that harm is too high a bar to prohibit communication, hence, lowering the bar will be more reasonable. In lowering the said bar, he argues that not only what “harms” the people should be criminalized but also what “offends” them.[114] Common examples of offensive conduct may include meandering around naked in a shopping mall, engaging in sexual activity publicly, or using abusive language to convey an otherwise reasonable idea.[115]

Given the variation in the gravity of both harm and offence, punishments must be set accordingly – more for the former and less for the latter. There is but a difficulty to this proposition. A sensitive person might be offended over a remark which another person might take amusingly. Similarly, a person might be offended, not because of the content of the remark but by virtue of an inherent bias. This issue may be addressed by applying the standard of the “reasonable person with ordinary prudence”.

Another issue is the relativity of the definition of normalcy which varies between societies and can prevent the emergence of one uniform rule. This problem, too, however deranged it may seem, is rectifiable by way of applying the “communitarian standards of morality”. Pakistan’s corpus juris seems to have adopted this principle as it outlaws offensive behaviour and conduct such as public display of obscenity, public coital activity even though it may be consensual, or defamation even though it may not lead to harm.

Denial of Rights

The denial of a citizen’s fundamental rights generally, and the right to free speech particularly, by the state or any private body implicates the state for it is responsible to ensure the right violated in the first place. Article 8 of the Constitution of Pakistan forbids the passing of any legislation contrary to fundamental rights. A fundamental right that has been breached can be enforced either by way of the constitutional jurisdiction of the High Court under Article 199 or through the Supreme Court of Pakistan under Article 184(3), subject to limitations and pre-conditions. Where a law is not ex facie repugnant to fundamental rights, it cannot be struck down unless the claimant shows that it has been so administered.[116] Acting under its original constitutional jurisdiction under Article 184(3), the Supreme Court has unfettered and unbridled powers and can pass any order or direction.[117] The presence of an alternative remedy also poses no bar on the Supreme Court to take up the matter for consideration if it so wishes (emphasis on the word “consider” in Article 184 (3)), and once the court has assumed jurisdiction on the grounds of public interest, no one can object, not even the government.[118] This constitutional jurisdiction can also be exercised by repealing a statute that has breached a fundamental right in letter and spirit.[119] The manner of and grounds for exercising power in case of repeal of statute are similar to those involved during the examination of vires of new legislation contravening fundamental rights.[120][121] This constitutional jurisdiction can be availed by both natural and juristic persons.[122]

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References

[1] Constitution of Islamic Republic of Pakistan, 1973
[2] Romesh Thappar v. Union of India (AIR 1950 SC 124)
[3] The fundamental law of Pakistan by A. K. Brohi.
[4] Commentary on the constitution of Pakistan by Justice Muhammad Munir
[5] Maneka Gandhi v. Union of India (AIR 1978 SC 597), Abdullah Malik v. Ministry of Information Broadcasting (PLD 2017 273 LHC)
[6] Ramesh Thappar v. State of Maddras (1950)
[7] Pakistan BroadcasterS Assosiation v. PEMRA (2016 PLD 692 SC)
[8] Nawabzada Nasrullah Khan v. Government of West Pakistan (PLD 1965 Lah. 642)
[9] 2019 PLD 253 SC
[10] Virender v. State of Punjab (A. 1958, SC. 986), Sakal Papers v. Union of India (A.1962 S.C. 305)
[11] Article 12 of the Constitution of Kingdom of Saudi Arabia
[12] State of Uttar Pradesh v. Raj Narain, Secretary (1975 AIR 865), Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, Dinesh Trivedi (AIR 1995 SC 1236), M.P. and Ors v. Union of India (1997 4 SCC 306)
[13] Province of Punjab through Home Secretary etc. Vs. Qaiser Iqbal etc. (PLD 2018 198 LHC)
[14] Justice: What’s the right thing to do by Micheal Sandal
[15] Lectures on Constitutional Law by Barrister A. G. Chaudhry.
[16] The Comparative Constitutional Law of Freedom of Expression by Adrienne Stone.
[17] Mst. Miran and anothers Vs. Abdur Raheem & another (PLJ 2004 S.C 108), Ali Raza v. Federation of Pakistan (2017 PLD 64 Islamabad)
[18] Art. 19 of the Constitution of Islamic Republic of Pakistan.
[19] Menaka Gandhi v. Union of India, Fiaz Ahmad Cheema v. Federation of Pakistan (2018 CLC 856 Islamabad)
[20] Pakistan BroadcasterS Assosiation v. PEMRA (2016 PLD 692 SC)
[21] 2019 PLD 318 SC (SUO MOTU CASE NO.7 OF 2017)
[22] Taffazal Hussain v. Government of East Pakistan (PLD 1969 Dacca 589)
[23] 1982 CLC 676
[24] Schenck v. United States (249 U.S 47)
[25] Pakistan Broadcasters Association v. PEMRA (2016 PLD 692 SC)
[26] Commentary on the Constitution of Pakistan by Muhammad Munir
[27] The Constitution of Islamic Republic of Pakistan by M. Mahmood
[28] 2018 PCrLJ 1133 Lahore High Court, Lahore
[29] Article 18 of International Covenant for Civil & Political Rights, 1966 (ICCPR)
[30] Free Speech and Public Order Exceptions: A case for the U.S. Standard by Asma T. Uddin (BYU Law Review)
[31] U/S 124-A PPC, 1860
[32] U/S 124-A, Explanation 3
[33] Kedar Nath v. State of Bihar (AIR 1962 SC 955)
[34] Ramesh Thappar v. State of Madras (AIR 1950 SC 124)
[35] Santokh Singh v. Delhi Administration (AIR 1973 SC 1091)
[36] Gopaldas v. The State of Assam (AIR 1954 Assam 193)
[37] Ghulam Ahmad v. Punjab Province (PLD 1976 Lah. 773)
[38] Kartar Singh v. State of Punjab (AIR 1956 SC. 541)
[39] Abbas v. Union of India (AIR 1971 SC 481)
[40] Kartar Singh v. State of Punjab (AIR 1956 SC 541)
[41] The State Vs. Abdul Ghaffar (Bacha Khan) – (PLD 1957 Lah. 142)
[42] Constitution of India, 9th Edition, Pg# 112 by Shukla
[43] Commentary on the Constitution of Pakistan by Chief Justice Muhammad Munir
[44] Comparatives Constitutional Law, 2nd Revised Edition by Hamid Khan
[45] Art. 19 of the Constitution of the Islamic Republic of Pakistan
[46] Sheikh Wajihuddin v. The State (AIR 1963 All. 335)
[47] Punishable U/S 153-A PPC
[48] Public Prosecutor v. P. Ramaswami (AIR 1964 Mad. 258)
[49] Punishable U/S 295 PPC
[50] Babulal v. The State (AIR 1961 SC 884)
[51] Noor Muhammad v. Rex (AIR 1949 All. 120)
[52] Om Parakash v. Emperor (AIR 1948 Nag. 199)
[53] The State v. Ramanand (AIR 1956 Pat. 188)
[54] Cantwell v. Connecticut (310 U.S. 296 1940)
[55] For Example National Security Act (NSA), Official Secrets Act (OSA), Criminal Procedure Code (Cr.PC) etc.
[56] Tafazzal Hussain v. Govt. of East Pakistan (PLD 1965 Dacca 68)
[57] Emperor v. Sibnath (AIR 1943 FC 1)
[58] Raj Bahadur Gond v. State of Hyderabad (AIR 1953 Hyd. 124)
[59] Khwaja Muhammad Safdar V. The Province of West Pakistan (PLD 1964 Lah. 718)
[60] Comparative Constitutional Law, 2nd Revised Edition by Hamid Khan
[61] Indulal v. The State (AIR 1963 Guj. 259)
[62] Babulal Parate v. State of Madras (AIR 1961 SC 884)
[63] Sadho Shamsher v. State of Pepsu (AIR 1954 SC 276)
[64] Constitutional Law Of Pakistan Text, Case Law And Analytical Commentary (2nd Revised & Updated Edition) By Syed Shabbar Raza Rizvi
[65] Pakistan Broadcasters Association v. PEMRA (2016 PLD 692 SC)
[66] Superintendent, Central Prison versus Ram Manohar Lohia (AIR 1960 SC 633)
[67] Dr. Ram Manohar Lohia v. State of Bihar (AIR 1966 SC 740)
[68] Ramjilal Modi v. State of U.P (AIR 1957 SC 622)
[69] Fundamental Law of Pakistan by A.K. Brohi.
[70] Lectures on Constitutional Law by Barrister A.G.Chaudhry
[71] Regina v. Heckline (L.R. 2 Q.B. 360 (1868)
[72] R v. Secker & Warburg (2 All E.R 683) (1954), Sankar v. The State (AIR 1955 Mad. 498)
[73] Jethro K. Lieberman, “The Evolving Constitution” Random House, N.Y., 1992.
[74] Sex and Society, Volume 2, Chap. Obscenity, Pg. # 581
[75] Kent R. Middleton & Bill F. Chamberlin, “The Law of Public Communication-3rd edition” 1994.
[76] Jacobellis v. Ohio (378 U.S. 184 – 1964)
[77] R v. Reiter (1954 2. W.L.R 638)
[78] 1953 Cr. LJ 763
[79] Emperor V. Harman Das (AIR 1947 Lah. 383)
[80] Ranjit D. Udeshi V. State of Mohrashtra (AIR 1965 SC 881)
[81] Comparative Constitutional Law by Hamid Khan
[82] Constitutional Law of Pakistan Text, Case Law And Analytical Commentary (2nd Revised & Updated Edition) by Syed Shabbar Raza Rizvi
[83] Crown v. Sa’adat Hassan Manto (PLD 1952 Lah. 384)
[84] Fundamental Law of Pakistan by A.K. Brohi.
[85] Article 204
[86] Clause (d) be interpreted according to the principle of “ejusdem generis”
[87] Goplan v. Noordin (AIR 1970 SC 1694)
[88] Hakam Qureshi v. Judges of Lahore High Court (PLD 1976 SC 713)
[89] Mohsin Tirmizy v. The State (P.L.D. 1965 S.C. 28). His appeal to the Supreme Court was dismissed.
[90] 2019 PLD 1 SC
[91] 2018 PLD 296 SC
[92] Article 66 of the Constitution of Islamic Republic of Pakistan
[93] Article 68 of the Constitution of Islamic Republic of Pakistan
[94] Hakam Qureshi v. Judges of Lahore High Court (PLD 1976 SC 713)
[95] State v. Matti Ullah Jan (2018 PCrLJ 899 Islamabad)
[96] The State v. Sh. Shaukat Ali (PLD 1976 Lah. 355)
[97] (See also) Section 3 of Contempt of Court Act, 1976 defines contempt of Court and provides the procedure and punishment for persons who commit contempt of Court.
[98] Bathina Ramakirshana Peddy v. Maddras (1952 AIR 149) (1952 SCR 425)
[99] E.M.S. Namboodripad v. T.N. Nambiar (1970 CriLJ 1670)
[100] Ashfaque Ahmad Sheikh v. The State (P.L.D. 1972 S.C 39)
[101] Privy Council in Ambard v. Attorney General (1946)
[102] Sec. 3(37) of the General Clauses Act, 1897.
[103] Abdul Hameed Qadri v. Dist. Magistrate, Lahore (PLD 1957 Lah. 213)
[104] State of Bihar V. Shrimati Shailabala Devi (A.I.R. 1952 S.C. 329)
[105] 2018 PLD 72 SC
[106] Whiteny v. Calafornia (274 U.S. 357 – 1927)
[107] Vishnu Gangadhar v. Govt. of Bombay (AIR 1945 Bom. 207)
[108] Zaheer Ud Din V. State (1993 SCMR 1718)
[109] Section 505 (PPC)
[110] Section 124-A (PPC)
[111] “On Liberty” by John Stuart Mill (1859)
[112] JOHN STUART MILL’S “HARM PRINCIPLE” AS THE FOUNDATION FOR HEALTHY SOCIAL RELATIONS By Dotun OGUNKOYA
[113] Mill’s Moral and Political Philosophy – Stanford Encyclopedia, October 9, 2007
[114] Offence to others, the Moral limits of Criminal Law by Joel Feinburg
[115] Freedom of Speech – Stanford Encyclopedia, 09 November, 2002
[116] LDA v. Ms. Imrana Tiwana (2015 SCMR 1739)
[117] Imran Ahsan Khan Niazi v. Mian Muhammad Nawaz Shareef (2017 PLD 265 SC)
[118] Ali Azhar Khan Baloch v. Province of Sindh (2015 SCMR 456)
[119] Yousaf Ayub Khan v. Govt. through Chief Secretary, Pashawar (2016 PLD 57 Peshawar)
[120] Shahid Pervaiz v. Ijaz Ahmad (2017 SCMR 206)
[121] Younas Abbas v. ADJ, Chakwal (2016 PLD 581 SC)
[122] Bennet and Coleman & Co. v. Union of India ((1973) 2 SCR 757), Indian Express Newspapers (Bombay) P. Ltd v. Union of India ((‘86) A.SC. 515)

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.

Jawwad Raza Sultan

The writer is a civil servant and has previously practised at Lahore High Court. He can be contacted at jawwadrazasultan7@gmail.com



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