What should or should not be classified as obscene? This is often a hotly debated topic in Pakistan and it is safe to say that there is little consensus on it, which is rather unsurprising given that this is a very diverse country full of people with different cultural, educational and social backgrounds. That being said, the state does have anti-obscenity laws and most would probably agree that people should not be able to publish offensive and obscene material without any repercussions, even if they cannot agree on what exactly such material should include. Article 37(g) of the constitution states that “[The State shall:] prevent prostitution, gambling and taking of injurious drugs, printing, publication, circulation and display of obscene literature and advertisements”. However, the wider the ambit of what is considered obscene, the more likely it is that such laws intrude on legitimate free expression, which is also guaranteed by the law and constitution. In this context, the Senate’s decision on Monday to pass the Criminal Laws (Amendment) Bill 2024 and enhance punishments for obscenity-related offences could be troubling. The bill seeks to increase the penalty for publishing, producing, exhibiting, distributing, or selling obscene material from a three-month sentence and an unspecified fine to two years’ imprisonment and a fine of Rs200,000. It would also raise the punishment for selling obscene material to individuals under 20 years from six months’ imprisonment or fine to two years and Rs100,000 in fines.
Since the standards for what is or is not obscene are quite vague, any such moves by the state are likely to make people more careful about what content they create and distribute and more likely to self-censor. It is almost like saying we are going to increase punishments for driving too fast without making clear what the speed limits are. The natural impulse would be to go slower, at least if one cares about the rules. It should also be noted that a bill reportedly seeking to regulate access to social media for those aged under 16 was also introduced in the Upper House. As such, the latest moves would appear to be part of or, at least, overlap with the state’s broader attempt to regulate what can and cannot be put out online. But regulating online content in the era of VPNs and ever-increasing digital anonymity has proven to be a tricky business that risks driving more people towards murkier and less regulated digital platforms and tools. One should also remember that, despite obscenity laws having been around for years, the amount of content that could or should be considered objectionable has only gone up and it is unclear if harsher punishments will deter genuine bad actors that hide behind layers of anonymity.
At the end of the day, the pressure generated by such moves is most felt by legitimate content creators, publishers and distributors who are not trying to hide and will do their best to comply with even unfair or vague rules. It is they who will sweat and think twice over whether their content could now land them a Rs200,000 fine and, as a consequence, there will be greater pressure to play it safe. Those beyond the reach of the Pakistani legal system or with decades of experience at operating outside of it and circumventing it are far less likely to change their ways. Maybe the state needs to stop with its paternalistic approach?
