Daily Times

“People demand freedom of speech as a compensation for the freedom of thought which they seldom use”, wrote Kierkegaard realizing that there are very few men who can afford to think, and a whole lot of humanity wanting to speak. Speech admittedly comes more trippingly on the tongue than losing one’s head on a hard issue. There are men who can effectively speak and yet prefer to stay silent, in which cases their reticence seems to speak more eloquently than their speech.

The problem with the democratic governments of today is how to allow freedom of speech to their citizens by simultaneously ensuring peace, order and tranquility. Experience has shown that there is no such thing as absolute or unqualified freedom of speech because an un-bridled use of this freedom would surely bring chaos and disorder. Hence even in the most liberal democracies of the world, severe limitations have been imposed on the freedom of speech.

And lately, the world has become beset by a graver danger from what has been called as “Hate Speech” which in modern democracies has created much mischief and unrest and which in most countries has been by law prohibited, and is treated both as a civil and criminal wrong and is also punishable. ‘Hate speech’ as such has nowhere been defined in the PPC, but by consensus a ‘Hate Speech’ is a speech that attacks a person or a group on the basis of protected attributes such as race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity. Hate speech is a statement intended to demean and brutalize another, by the use of cruel and derogatory language on the basis of its real or alleged connection with that group. In some countries, including the United States, hate speech is constitutionally protected, although it is restricted by factors which include speech involving incitement, false statement, obscenity, child pornography, threats, slander, libel, sedition, copy-right infringement and revelation of classified knowledge etc.

Hate speech laws in England and Wales are found in several statutes, wherein expressions of hatred toward someone on account of that person’s colour, race, disability, nationality (including citizenship), ethnic or national origin, religion, gender identity, or sexual orientation is forbidden. In Pakistan and India too, Section 153A of their penal code says, “Whoever promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, . . . shall be punished with imprisonment which may extend to three years, or with fine, or with both.

Prior to 1929, there was no law in the sub-continent prohibiting the injuring of religious sentiments, but after the murder of Hindu Rajpalat the hands of Ghazi Ilmuddin Shahid for publishing a sacrilegious book against the Holy Prophet, the Indian Muslim community demanded a law against insult to religious feelings. Hence, the British Government enacted Section 295(A)( deliberate and malicious acts to outrage any person’s religious feeling) to which later during Zia period were added 295(B)(defiling the Holy Quran) and 295(C) (blasphemy against the Holy Prophet,298(A) (using derogating remarks against Holy Personages) 298(B) forbidding Ahmadis from using Islamic epithets etc.

To curb hate literature, the Pakistan Penal Code comprehensively prohibits them and even prescribe punishments. However, unjustified procedural barriers make it nearly impossible to prosecute and punish an accused

Besides them, the Section 505(2) of PPC also criminalized a hate speech by which it is punishable to promote “disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities”, “on grounds of religion, race, place of both, residence, language, caste or community or any other ground whatsoever”. This section was similar in intention to Section 153-A of the Code. However, the distinction between them is that the Section 505(2) not only requires making of statements only but also to punish it as well.

From the above narrations of all offences in the Pakistan Penal Code, it would be seen that all offences against religion as well as those pertaining to hate speech based on protected attributes such as race, religion, ethnic origin, national origin, sex, disability, sexual orientation, or gender identity etc have been fully and comprehensively covered in PPC. Yet from time to time we see religious prosecutions lodged mostly against minorities under mob pressure but we seldom ever see prosecutions against the violators of hate speech in non-religious matters, despite the fact that there are too many incidents of hate speech around us we witness every day. Then the question arises as to why there is so much hate literature and so many instances of hate speech occurring in Pakistan and yet about which no cognizance is taken under any law , nor the offenders of hate speech law are ever prosecuted or brought to book? To curb hate literature, the Pakistan Penal Code comprehensively prohibits them and even prescribe punishments. However, unjustified procedural barriers make it nearly impossible to prosecute and punish an accused. The scope of hate speech law has been limited under section 196 of the Code of Criminal Procedure, which requires that such a criminal case could only be initiated by a federal or a provincial government. Resultantly, it enjoins that to take cognizance of an offence of hate speech, a prior permission of the Central government or a Provincial government or an officer empowered by such governments would be necessary. Section 196of the Code of Criminal Procedure provides that no court shall take cognizance, inter alia, of offences including sections 153-A,295-A and 505 without the permission of central or provincial government .So this procedural requirement fatally affects the liability under hate speech and fails to deter a potential offender.

Even cognizance of a criminal conspiracy cannot be taken up by any court without prior permission of the sanction, under section 196 of Cr.P.C which includes the offences of hate speech under sections 153-A, 295-A and 505.Therefore, any proceeding taken in a court of law against ‘hate speech’ without first obtaining permission of the central or provincial government under section 196 of the Cr.P.C would be declared as held coramnon judice, void ab initio and nullity in the eye of law.

Another impediment is that no one can be a complainant except an aggrieved person. The trial and conviction shall be void and illegal in case of a complainant of other than an aggrieved person.

Since Pakistan is an Islamic Republic based on an ideology, therefore, it is not surprising that there are more limits on a free speech. Hate speech has been criminalized increasingly and heavily specifically in post-independence era. To control hate speech, it is not enough to expect that mere few criminalizing provisions of law or reasonable restrictions on a free speech would resolve the issue. It requires a comprehensive and sustainable struggle to contain the problem, promoting principles of tolerance, peace, harmony and mutual respect of different opinions, trusting in human rights and democracy.

It is remarkable that after tragedy of Army Public School, Peshawar, the Pakistan National Action Plan has made the government more accountable to take stringent action against violators of hate speech, for which various committees regularly review cases of hate speech. Supreme Court of Pakistan has also issued stern directions to take timely notice of this trend after hearing Faizabad imbroglio case.

Pakistan being a religious state, where religious susceptibilities are highly sensitized, the fear of mob reaction to cases of hate speech in religious matters can always force the central or provincial governments to come to redress complaints of this nature. But the incidents of hate speech in non-religious matters occupy a back seat, and hence I personally do not see that remedy in non-religious complaints of hate speech can be availed so easily in Pakistan.

The writer is a former member of the Provincial Civil Service, and an author of Moments in Silence