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Not mere words

Around the world, hate speech is on the rise, and the language of exclusion and marginalisation has crept into media coverage, online platforms and national policies.

By Zafar Aziz Chaudhry | April 2020


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 there is 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 case 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.

Lately, the world has become beset by a graver danger from what has been described as “Hate Speech”. In modern democracies, this has created much mischief and unrest. In most countries, hate speech has been prohibited by law and is treated both as a civil and criminal offence which is punishable.

‘Hate speech’ as such has nowhere been defined in the Pakistan Penal Code (PPC), but, by consensus, a ‘Hate Speech’ is a speech that attacks a person or 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, copyright 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 respective penal codes, 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 the Hindu citizen Rajpal at the hands of Ghazi Ilmuddin Shaheed for publishing a sacrilegious book against the Holy Prophet (PBUH), the Indian Muslim community demanded a law against insult to religious feelings. The British Government enacted Section 295(A) (deliberate and malicious acts to outrage any person’s religious feeling) to which, later during the Zia period, were added 295(B) (defiling the the Holy Quran), 295(C) (blasphemy against the Holy Prophet (PBUH), 298(A) (using derogatory remarks against holy personages), 298(B) forbidding the Ahmadis from using Islamic epithets, etc.

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

From the afore-stated narration 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 the PPC. Yet, from time to time, there are religious prosecutions lodged mostly against minorities under mob pressure but there are seldom prosecutions against the violators of hate speech in non-religious matters, despite the fact that there are too many incidents of hate speech witnessed every day.

The question arises as to why there is so much hate literature and so many instances of hate speech occurring in Pakistan while there is no cognizance of this under any law, nor are the offenders of hate speech law ever prosecuted or brought to book? To curb hate literature, the Pakistan Penal Code comprehensively prohibits them and even prescribes punishment. However, unjustified procedural barriers make it nearly impossible to prosecute and punish the 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. This enjoins that to take cognizance of an offence of hate speech, prior permission of the federal government or a provincial government or an officer empowered by such governments would be necessary. Section 196 of 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 the federal or a provincial government. As such, this procedural requirement fatally affects liability under hate speech and fails to deter a potential offender.

Even cognizance of a criminal conspiracy cannot be taken 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 proceedings in a court of law against ‘hate speech’ without first obtaining permission of the federal or provincial government under section 196 of the Cr.P.C, would be declared as coram non judice (not before a judge), void ab initio (void from its outset) and nullity (legal invalidity) in the eye of law.

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

Since Pakistan is an Islamic republic based on an ideology, therefore, it is not surprising that there are more limits in the country on free speech. Hate speech has been criminalized increasingly and heavily, especially in the post-independence era. To control hate speech, it is not enough to expect that a few criminalizing provisions of law or reasonable restrictions on 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 the tragedy of the Army Public School in Peshawar, the Pakistan National Action Plan made the government more accountable to take stringent actions against violators of hate speech and various committees regularly review cases of hate speech. The Supreme Court of Pakistan has also issued stern directions about taking timely notice of the trend after hearing the Faizabad case.

Pakistan is 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 federal 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 remedy in non-religious complaints of hate speech cannot be availed as easily.

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