Danger of ideas II
Obscenity, Sacrilege and Sedition
-- reasons why the law does not approve of certain
publications

By Babar Mirza

On the 6th of February 1957, police raided a book shop on Temple Road in Lahore and seized 22 albums mostly containing life-sized nude pictures of females. The shop owner was charged with offending the law against selling obscene books, magazines, etc. After a couple of appeals, the case eventually reached for revision before Justice Faruqi of the Lahore High Court to determine whether the photos were obscene.

During the proceedings, the court heard the opinions of doctors, professors, students and some exponents of art. Most of the witnesses -- including such eminent figures as Shakir Ali, Ishfaq Ahmad, professor Sirajuddin (Principle of Government College, Lahore), Rashid Akhtar (Pakistan Radio's assistant director) and Mrs. Anna Molka (head of Punjab University's fine arts department) -- testified that the pictures expressed the beauty of the human form and were not sexually stimulating or obscene.

Justice Faruqi however held otherwise, but with some very interesting reasoning. He accepted the rule that 'obscenity as understood in law consists of publishing or exhibiting such matter or object which has the tendency to corrupt the minds of those who are open to immoral influences by exciting in them sensuality and carnal desire,' but didn't apply this subjective standard of morality in its conventional form.

He noted that except for three photographs, the 22 albums forfeited from the bookshop contained only photos of nude females. Questioning why the beauty of the human form could only be expressed through females who are naked, he quoted a research concluding that photographs of nude females were produced primarily for the consumption of males, majority of whom were erotically aroused by the photos 'just as they were aroused upon observing living females.' Using this reasoning, Justice Faruqi held nude to be obscene.

Sadly, gone are the days when we had so many exponents of art and a feminist judge. In 1992, the law changed as well. Deciding on a petition filed by Habibul Wahab Al-Khairi, the Federal Shariat Court held that Islamic law did not acknowledge the 'accepted morality' of the people and 'the shameful deed is to be analysed objectively in the light of the teachings of Islam.' Subsequent case law and my own knowledge do not contain much understanding of the Islamic concept of obscenity, but I must humbly submit that the idea of an objective morality sounds like a unicorn to me.

Obscenity is not the only reason why the law does not approve of certain types of publications. In fact, the Press and Publications Ordinance 1963 contained fifteen sub-sections on the basis of which published material could be forfeited and the publishers and writers punished. In 2002, the government had the good sense of repealing this law in favour of the relatively limited (though still absurdly broad) provisions of the Pakistan Penal Code and Criminal Procedure Code.

The provisions of the Pakistan Penal Code assign punishments for producing material which is obscene, seditious, creates disharmony among different classes or groups of people, maliciously and deliberately insults the religious beliefs of a class or group or defiles the sacred name of the Prophet. Moreover, some provisions introduced by General Zia ul Haq provide for exceptional limits on Ahmadis regarding their freedom of expression. Depending on the provision violated, punishments range from three months to death. Publications punishable under the Penal Code are also liable to be forfeited by the government under the Criminal Procedure Code.

These laws are predictably broad and boring, but its through cases that you learn that the long arm of the law in this case is attached to a small brain. Since Saadat Hasan Manto was sentenced to pay a fine of 300 rupees for writing and publishing 'Thanda Gosht,' there has hardly been any conviction on the grounds discussed in the last paragraph (though Ahmadis are still the exception). The reason has nothing to do with the merits of a case, but the fact that officials exercising legal authority have always made glaring procedural errors which showed their slothful and discriminatory approach.

In 1964, the governor of West Pakistan ordered the owner of a printing press to deposit Rs. 20,000 as security for having published two books titled 'Jawani Ke Raaz' and 'Shab-e-Aroosa.' This order was held to be illegal by the Lahore High Court in 1976, as it was not preceded by a show-cause notice (which implies the right to hearing). For the same reason, the court declared illegal the order of the provincial government to forfeit three books written by Fakhar Zaman (the order of forfeiture was issued in 1978 and the judgment was given in 1996).

In some other cases, the authorities lost their case because failed to point out any specific grounds for forfeiting a publication or fining a publisher. These include cases involving Mahmood Khan Abbasi's book 'Khilafat-e-Muavia wa Yazeed' (1961), a review of Zulfiqar Ali Bhutto's book 'Myth of Independence' published in Fahmida Riaz's magazine 'Awaz' (1982), Yousuf Saleem Chisti's book 'Tareekh-e-Tasawwuf' (1985) and Ghulam Ahmad Parvaiz's booklet 'Firqay Kaisey Mit Saktay Hain' (2006).

In two cases, the officials felt so relaxed as to even forget to produce the material the alleged possession of which was punishable under law. In the first case, a publisher, a bookseller and a peon in WAPDA were convicted in 1976 by the military court for possessing obscene literature. It took three years before the Lahore High Court found that 'this so-called 'obscene literature' allegedly recovered from the petitioners in the case is not forthcoming on the record,' and therefore, the decision of the military court was illegal.

Similarly, in 1979, the summary military court of Gujrat sentenced Attaur Rehman, who was Yehya Bakhtiar's private secretary, to rigorous imprisonment for nine months and a fine of Rs. 5,000 for possessing booklets titled 'General Zia Ki Taqreer Ka Post-mortem' and 'Reply to General Zia's speech of June 25, 78.' The High Court reversed this decision next year on the grounds that nothing had in fact been recovered from the accused and that no public witness had come forth to support the case of the prosecution.

In a 1960 case, certain passages from the book 'Mizanul Haq' -- which compared Christianity and Islam and tried to show the superiority of the former over the latter -- were held to have the deliberate and malicious intention to insult the religious feelings of Muslims. On an assurance by the Bishop of Lahore, the court allowed the publishers to delete the offensive passages from the future editions of the book but did not reproduce them in the judgment.

In a 1962 case, certain passages from Duncan Macdonald's book 'Development of Muslim Theology, Jurisprudence and Constitutional Theory' -- which was also part of Punjab University's Masters in Political Science syllabus -- were also accused of intentionally insulting the feelings of Muslims. This time, the court did reproduce the relevant passages, but didn't order for their expulsion from the text: Chief Justice Kayani re-wrote the passages to make them legally acceptable.

Thus we see that the legal standards to determine what's obscene, seditious, or religiously insulting are quite vague under Pakistani law. Except for a few early cases, courts seem to prefer a case-by-case approach to avoid having to come up any standard definition. More importantly, the added callousness of state officials suggests that any alleged violation of these laws would seldom lead to legal sanction, provided, of course, the alleged violator doesn't go missing or die at the hands of a fanatic.