The Indian Penal Code was enacted by the colonial rulers in 1860 to control the masses in British India after a failed attempt for independence by the locals in 1857. This code was a major criminal law which defined crimes ranging from murder and robbery to dishonesty and nuisance. It empowered the colonial masters to control their subjects through a legal instrument. The code also included provisions such as Section 124-A (sedition), Section 141 (unlawful assembly), Section 499 (criminal defamation) and Section 505 (statements conducing to public mischief). The colonial masters abused these laws along with other legislations such as the Telegraph Act, 1885; The Rowlatt Act, 1919; The Official Secrets Act, 1923; and the Indian Press (Emergency Powers) Act, 1931, to suppress freedom of expression in India.
This code was adopted by Pakistan in 1947 after minor textual adjustments and replacing the word “Indian” with “Pakistan” in its nomenclature. This enabled successive governments, particularly the military regimes of Ayub, Yahya, Zia, and Musharraf, to curb freedom of expression under the garb of controlling crimes in society.
To further limit freedom of expression, Zia added Section 502 (sale of printed or engraved substance containing defamatory matter) in the code. This was meant to prosecute owners of newspapers, magazines and periodicals, printers, and hawkers for their alleged connivance in the distribution of “defamatory material.” He also amended Chapter XV (offences relating to religion) to appease religious parties and raised the punishment up to the death penalty for such offences. This amendment included life imprisonment for defiling, etc, of the Holy Quran (Section 295-B) and the death penalty for the use of derogatory remarks, etc, in respect of the Holy Prophet (peace be upon him) – commonly known as blasphemy law – (Section 295-C). Needless to mention, these provisions have been misused massively. Gen Zia also introduced Martial Law Regulations to ban organising meetings at an open place, raising slogans, displaying banners and starting a hunger strike. His era is also known for the lashing of journalists for their work.
The Pakistan Penal Code has been used by successive regimes as a major censorship tool to curb free expression. However, after 2018, a new era of censorship through the penal code has emerged. Since then, several journalists, TV anchors and human rights/ information practitioners have been charged under Section 124-A (sedition), Section 499 (criminal defamation) and Section 505 (statements conducing to public mischief) of the Code. From Amir Mir (currently caretaker information minister in Punjab), Syed Imran Shafqat and Rizwan-ur Rehman Razi to Arshad Sharif and Imaan Haazir Mazari, all have faced charges under the penal code.
Waqar Satti, a reporter associated with Geo TV, was booked under Section 295-A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs) of the penal code for sharing a video consisting of Imran Khan’s statements on Twitter. The latest incident, reportedly, is the arrest of a college professor in the Dera Ismail Khan district of Khyber Pakhtunkhwa under Section 124-A and Section 505 of the Penal Code. This happened despite the recent judgment of the Lahore High Court declaring Section 124-A ultra vires of the constitution.
The Prevention of Electronic Crimes Act (PECA) of 2016 has surfaced as the latest legal instrument to curb free expression and journalistic freedom. The PECA was enacted during the Pakistan Muslim League-Nawaz government in 2016 in the garb of preventing “electronic media crimes” in the country. However, the intent behind the Act became clear in 2018 when the Pakistan Telecommunication Authority (PTA) started blocking online content using powers under the Act. The website of a political party – the Awami Workers Party (AWP) – became a victim of this Act and was blocked during the caretaker setup before the general elections in July 2018.
Since then, the PTA has blocked more than one million websites for allegedly “unlawful” content using unbridled authority under Section 37 (unlawful online content) of the PECA. Thousands of blocked websites, in fact, were producing news, current affairs, and political and social content which seemed to displease people in power. Earlier, this was done under the supervision of the Inter-Ministerial Committee for the Evaluation of Websites (IMCEW) formed in 2006. In 2014, the Islamabad High Court restrained the committee from issuing directions to the PTA for website blocking. However, the PECA authorised PTA to do more than it could in the past.
Pakistan is among the countries with the highest number of requests placed before social media platforms to remove “objectionable content.” Assuming powers under the PECA, the PTA and other state authorities send hundreds of such requests every year to various platforms such as Facebook, Twitter, Google, Wikipedia etc. Pakistan has a history of blocking access to social media platforms. People in the country have experienced a ban on Facebook, Twitter, YouTube and WordPress. Most recently, the government blocked access to Wikipedia when it refused to remove certain content.
Other than empowering the PTA to block and restrict online content, the PECA has also proved a draconian criminal law for those who attempt to question arbitrary decision-making by the governments, state institutions and political elite. Criminal proceedings were initiated against more than 25 journalists and information practitioners during 2020-22 under the PECA. The trend to charge journalists under Section 20 (offences against the dignity of natural persons/ online criminal defamation) of the PECA showed a slight decline after the declaration of a part of the section as unconstitutional by the Islamabad High Court in April 2022.
However, the practice of using criminal laws to curb free expression has not stopped. In its latest press freedom report, Freedom Network – a media freedom watchdog – has reported that during the past twelve months, “nine specific instances of legal action against journalists were monitored.” According to this report, “Ten (10) journalists were either arrested or detained by the state authorities during this period. The state actors continue to be one of the largest threat sources for journalists and other media professionals in Pakistan.”
The Pakistan Electronic Media Regulatory Authority (PEMRA) has been suspending transmissions of television channels and banning anchors from television screens instead of modernising/ digitalising the broadcast sector. The Telegraph Act of 1885 and the Official Secrets Act of 1923 are still operational and investigative journalism is treated more as a crime than a service. Misuse of laws to suppress freedom of expression and legal actions against journalists and information practitioners will, likely, continue.
Aftab Alam is a law and policy expert based in Pakistan, with nearly two decades of experience in the fields of right to information, freedom of expression, media development and governance and legislative reform.
This piece was originally published by The News International.