SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Bench-V:
Mr. Justice Syed Mansoor Ali Shah
Mrs. Justice Ayesha A. Malik

Civil Petition No.3506 of 2020

(Against the order of the High Court of Sindh,
dated 11.11.2020, passed in M.A. No.45/2020)

Pakistan Electronic Media Regulatory Authority (PEMRA) through its

Chairman & another
...…. Petitioners

Versus

M/s ARY Communications Private Limited (ARY Digital) through its Chief
Executive Officer & another
……. Respondents
For the petitioners: Mr. Shahid Mubeen, ASC.
Barrister Haris Azmat, ASC.
Barrister Hamza Amjad.
Barrister Fauzia Asad.
(Through video link from Lahore Registry)
Mr. Tahir Farooq Tarar, Head Legal,
Mr. Mohsin Hameed Dogar, Dir. (Legal), Mr.
Muhammad Jalal Haider, L.O.
Hafiz Muhammad Junaid, D.D.
(Regulations), PEMRA.
For the respondents: Barrister Abid S. Zuberi, ASC.
Barrister Agha Ali Durrani.
Barrister Shahreen Chughtai.
Barrister Arif Ansari.
For the Federation: Malik Javaid Iqbal Wains, Addl. A.G.
Mr. Kashif Zaman and Mr. Imran Haider,
Representatives of Ministry of Information
& Broadcasting, GoP.

Research Assistance by: Ms. Fareeha Aziz, Co-Founder, Bolo Bhi.

Date of hearing: 24.11.2022 (Judgement Reserved)

JUDGEMENT

Syed Mansoor Ali Shah, J.- The main question of law that
requires determination in the present case is: whether Section 27(a) of the
Pakistan Electronic Media Regulatory Authority Ordinance 2002 (“PEMRA
Ordinance”) is an independent and self-governing provision or whether its
applicability requires the opinion of the Council of Complaints in terms of
Section 26(2) of the PEMRA Ordinance read with the Pakistan Electronic
Media Regulatory Authority (Councils of Complaints) Rules 2010
(“Councils of Complaints Rules”). The case also necessitates some
C.P. No. 3506/2020 2

elaboration on how the Councils of Complaints are to address complaints

and deal with expressions like “obscene”, “vulgar” and “offensive to the
commonly accepted standards of decency” as used in Section 27(a) of the
PEMRA Ordinance, in relation to any programme, including a play or
drama and advertisement (“media content”), broadcasted on the
electronic media, in the context of our constitutional values and
fundamental rights, in particular, the right to freedom of speech and
expression and right to information guaranteed by Articles 19 and 19A of
the Constitution of the Islamic Republic of Pakistan (“Constitution”).
Further, the manner of selection of the members of the Councils of
Complaints established under Section 26 of the PEMRA Ordinance,
especially the requirement of such members being “citizens of eminence”,
needs elucidation.

2. Briefly, the relevant facts of the case are that M/s ARY
Communications Private Limited (“ARY”) broadcasted a drama serial,
JALAN, (“drama serial”) on its TV Channel, ARY Digital. Some persons
from the general public made complaints on the Pakistan Citizen’s Portal
of the Prime Minister’s Performance Delivery Unit, alleging that the story
of the drama serial is immoral and against social and cultural values. The
said complaints were forwarded to the Chairman, Pakistan Electronic
Media Regulatory Authority (“PEMRA”) for appropriate action. PEMRA,
acting through its delegate i.e. the Chairman, called for the comments of
ARY, which were submitted by ARY, refuting the allegations. PEMRA,
however, being dissatisfied with the comments, first issued two directives
to ARY to amend the script of the drama serial before broadcasting further
episodes and then passed an order on 10 September 2020 under Section
27(a) of the PEMRA Ordinance, prohibiting the broadcasting and
rebroadcasting of the drama serial. ARY filed an appeal against the said
order before the High Court of Sindh under Section 30A of the PEMRA
Ordinance, which was allowed on 15 September 2020 and the matter was
remanded to PEMRA to decide the same afresh after serving a proper show
cause notice to ARY, specifying the objectionable content of the drama
serial and providing a sufficient opportunity of hearing.

3. In compliance with the direction of the High Court, PEMRA

served two show cause notices to ARY, one of which contained the
following assertions:
[The] storyline/theme of the said drama serial does not conform to the
religious injunctions enshrined in the Holy Quran and established
social/cultural more/values of the country containing highly objectionable
content compromising sanctity of relations between brother-in-law and
sister-in-law. Further, the storyline and theme of the drama serial seems a
C.P. No. 3506/2020 3

lethal attempt to induce the younger segments of the society with an

obvious intent to go against the commonly accepted standards of decency
and to distort the social fabric by dislodging century old cultural & social
norms/mores of the society. Transcript of a few video clips showing
intimacy between brother-in-law and sister-in-law is enclosed herewith at
(Annex-I) for ready reference.

In one of its replies, ARY took the following stance:

[T]he drama serial “JALAN” does not contain any objectionable content
which may hurt the feelings of any viewers or violate any social, moral,
religious or cultural norms. It is categorically submitted that there is no
vulgarity or obscenity in the said drama serial and it only portrays a story
of a social issue and further highlight[s] the adverse consequences of such
conduct. The subject drama serial further highlights the issue of “mental
illness”. It is submitted that the said drama serial does not promote any
anti-social behaviour but rather acts as a deterrent as it shows the
adverse consequences that people can suffer due to their actions. There
are no violations of any regulations or code in the script, dialogues or
scenes of the drama, which is the reason why PEMRA has been unable to
point out any particular violation(s).

In both of its replies, ARY also raised the objection regarding the
jurisdiction of PEMRA to issue the show cause notice without first
obtaining the opinion of a Council of Complaints under Section 26 of the
PEMRA Ordinance. PEMRA did not take notice of this objection and,
without catering to the same, passed a prohibition order under Section 27
of the PEMRA Ordinance on 29 October 2020, prohibiting ARY from airing
the drama serial (“prohibition order”).

4. ARY then preferred an appeal against this prohibition order

before the High Court of Sindh under Section 30A of the PEMRA
Ordinance. While allowing the appeal and setting aside the prohibition
order by its judgement dated 11.11.2020 (“impugned judgement”), the
High Court held that the legislature has empowered the Councils of
Complaints, under Section 26 of the PEMRA Ordinance, to receive and
review complaints against any aspects of the programmes and to
recommend appropriate action to PEMRA, and that PEMRA could not have
bypassed the Councils of Complaints in making the prohibition order. The
present petition has been filed by PEMRA for leave to appeal against this
judgement of the High Court.

5. We have considered the oral as well as written arguments of

the learned counsel for the parties and examined the record of the case.

Regulating two fundamental rights: freedom of expression and right to

information.

6. First of all, we think it appropriate to conceptualize the

framework of establishing a regulatory authority like PEMRA under the
law, i.e. the PEMRA Ordinance. This can best be contextualized in the
framework of regulating the fundamental rights to freedom of expression
C.P. No. 3506/2020 4

and information guaranteed by Articles 19 and 19A of the Constitution. to

begin with the preamble of the PEMRA Ordinance states that it provides
for the development of the electronic media to improve the standards of
information and enlarge the choice available to the people of Pakistan
through media in the current affairs, religious knowledge, art, culture,
science, technology, economic development, social sector concerns, music
sports, drama and other subjects of public and national interest.
Empowering people at the grass root level by improving access of the
people to mass media and ensuring accountability, transparency and good
governance by optimizing the free flow of information. In essence the
purpose of PEMRA is to improve and regulate the standard of information
disseminated (media content) through media broadcast to the public. In
the constitutional context, the function of PEMRA is to enhance, protect
and regulate freedom of speech and expression by regulating media
content and the right of information of the public to be able to access and
receive such media content through different mediums of communication.
Even though implied in the freedom of speech and expression is the
freedom to communicate such speech and expression (media content) to
the public, our Constitution additionally provides an independent
fundamental right to information, in all matters of public importance.
Media broadcasts, plays, and dramas are also matters of public
importance. They can significantly impact society in various ways.
Shaping public opinion: Media broadcasts, plays, and dramas often reflect
or challenge societal norms and values. They can influence public opinion
by shedding light on important issues, presenting different perspectives,
and encouraging critical thinking. Raising awareness: These forms of
communication can raise awareness about pressing social, political, or
environmental issues, prompting public discourse and encouraging people
to take action or make informed decisions. Cultural preservation and
promotion: Plays and dramas often showcase a society's history, culture,
and traditions, helping to preserve and promote cultural heritage and
identity. Entertainment and escapism: Media broadcasts, plays, and
dramas provide entertainment and escapism, allowing people to relax,
enjoy, and momentarily escape from the stress of everyday life. This can
contribute to overall well-being and social cohesion. Education: These
mediums can serve as educational tools, introducing audiences to new
ideas, historical events, or scientific concepts in an engaging and
accessible way. Media broadcast in the shape of plays or dramas
collectively play a crucial role in shaping society, influencing public
opinion and fostering cultural development. Right to information under
C.P. No. 3506/2020 5

Article 19A is therefore not limited to the access to information from

public bodies as envisaged under the Right to Access of Information Act,
2017 but also includes media content disseminated to the public as an
integral part of “information.” So in the public space, the freedom of
expression of one becomes the right to information of another. While one
has the freedom to express oneself, the other has the right to have access
and receive such information. If an individual has the right to express
their opinions and ideas, others have the right to hear them and be
informed. In this way, the right to receive information can be seen as a
way to ensure that the right to freedom of expression is fully realized. Both
these fundamental rights complement each other.

7. “Expression” in the context of freedom of expression (Article

19), refers to the act of conveying thoughts, ideas, emotions, beliefs, or
opinions through various forms of communication. This can include: (i)
spoken or written words like speeches, conversations, books, articles, and
social media posts; (ii) artistic works such as painting, drawing,
sculpture, music, dance, theater and film can be ways to express
thoughts, ideas, or emotions; and (iii) symbolic actions that can take the
form of gestures, clothing choices, or other actions that convey meaning,
like protest marches or flag burning. Freedom of expression is a
fundamental human right that allows individuals to openly communicate
their thoughts and ideas without fear of censorship, discrimination, or
punishment. It is essential for the healthy functioning of a democratic
society to encourage exchange of ideas, fosters debate and allow for the
development of diverse opinions and perspectives.

8. "Information", on the other hand, generally refers to data,

facts or knowledge that have been organized, processed, and
communicated in various formats to help people understand or make
decisions about a particular topic or issue. Information can come from a
variety of sources, such as books, articles, websites, social media,
databases, speeches, videos, images, or audio recordings. Having "access
to information", typically refers to the ability of individuals or groups to
find, obtain and use information effectively and efficiently. This helps
build a more informed, inclusive, cultured and a tolerant society.

9. PEMRA on the one hand has to ensure that the freedom of

expression through media broadcast is enhanced without infringing the
reasonable restrictions imposed by law in the interest of the glory of Islam
or the integrity, security or defense of Pakistan, friendly relations with
C.P. No. 3506/2020 6

foreign States, public order, decency or morality or in relation to contempt

of court or commission or incitement of an offence under Article 19 of the
Constitution. While on the other hand, it also has to ensure that the right
to information of the public is enlarged without impinging on the
reasonable restrictions imposed by law under Article 19A of the
Constitution. These constitutional restrictions are further actualized
through the restrictions provided under PEMRA Ordinance and the rules,
regulations and the code of conduct developed thereunder. The
“reasonable restrictions” flow from Articles 19 and 19A of the Constitution
and the statutory restrictions by and under the PEMRA Ordinance are to
be interpreted in a forward looking manner in order to persistently
advance and promote the constitutional values of tolerance, freedom,
equality, democracy and social justice.

10. In order to regulate these two important fundamental rights,

the media content1 broadcasted and received in the public space is
regulated under the PEMRA Ordinance2 through a two-tiered regulatory
system. First, through the independent public regulatory bodies called the
Councils of Complaints, comprising citizens of eminence selected from the
general public. Second, by PEMRA, a Government controlled regulatory
body. The primary responsibility of these two bodies is to ensure that the
media content is constitution complaint under Articles 19 and 19A and
meets the reasonable restrictions under the PEMRA Ordinance, rules,
regulations and the code of conduct. The importance of establishing
independent Councils of Complaints from amongst citizens of eminence
from the general public is to ensure that the media content for the public
is also reviewed by representatives of the public, through a public
regulatory body by applying commonly accepted or community based
standards of decency. As the media content has to be put out in the public
space, it is therefore, first and foremost, that an independent public body
representing a broad cross-section of society reviews the media content.
This helps protect, nuture and enhance the freedom of expression and
right to information of the people and shields the media content against
government interference and control.

11. The composition of the Councils of Complaints leaves little

room to guess why the function of reviewing complaints against any
aspects of programmes or advertisements and of rendering an opinion on
such complaints has been entrusted by the legislature to them. Each

1
Any aspects of the programmes and advertisements broadcasted or distributed by a station established
through a licence issued by PEMRA.
2
Read with the Councils of Complaints Rules.
C.P. No. 3506/2020 7

Council of Complaints consists of a chairperson and five members

including at least two women, who all are citizens of eminence from the
general public. Although the expression “citizens of eminence”, which is of
wide import, is not defined in the PEMRA Ordinance, it ordinarily refers to
persons who are widely recognized and respected for their knowledge and
experience in their respective fields, such as media, law, human rights
and social service, etc.3 The term "eminence" suggests a level of
distinction, implying that these persons hold a special status or position
within the circle of their vocation. Additionally, those of such persons who
are considered for assigning a public function, whether paid or honourary,
ought to be also known for their integrity. Such consideration must also
take into account the objective of ensuring that the Councils of
Complaints remain independent and impartial, and are protected against
both political and commercial pressure or interference.4 A Council of
Complaints comprising of such persons reflect a broad cross-section of
our society in order to represent diverse interests, balance, inclusivity and
different perspectives of the public, while ensuring their independence and
impartiality. which can best ensure the public interest in reviewing
complaints against any aspects of programmes and advertisements. The
members of the Councils therefore hold honourary position for two years
and are to perform their function independently and impartially, without
any government interference.5 PEMRA, the government regulatory
authority, on the other hand, is a body comprising a Chairman and
twelve members who are appointed by the President of Pakistan for tenure
of four years on payment of such emoluments as determined by him.6 The
two tiered regulatory system is an effective regulatory mechanism to
actualize and advance the fundamental rights to freedom of expression
and information.

Scope of Sections 26 and 27 of the PEMRA Ordinance

12. With this conceptual background, we now examine the

interpretation of Section 27(a) of the PEMRA Ordinance to see whether it
is a self-governing provision, independent of Section 26(2) of the PEMRA
Ordinance read with the Councils of Complaints Rules. The relevant
provisions are reproduced here for ease of reference:

3
See PEMRA v. ARY Communications 2022 SCMR 1923.
4
Toby Mendel et el. Modernizing Media Law in Pakistan: Review of Legal Framework Governing Media,
pp. 26-27 (IRADA, 2017).
5
Rules 3(2) and 6 of the Councils of Complaints Rules.
6
Section 9 of the PEMRA Ordinance.
C.P. No. 3506/2020 8

26. Council of Complaints. (1) The Federal Government shall, by

notification in the official Gazette, establish Councils of Complaints at
Islamabad, the Provincial capitals and also at such other places as the
Federal Government may determine.
(2) Each Council shall receive and review complaints made by persons or
organizations from the general public against any aspects of programmes
broadcast or distributed by a station established through a licence issued
by the Authority and render opinions on such complaints.
(3) Each Council shall consist of a Chairperson and five members being
citizens of eminence from the general public at least two of whom shall be
women.
(3A) The Councils shall have the powers to summon a licensee against
whom a complaint has been made and call for his explanation regarding
any matter relating to its operation.
(4) The Authority shall formulate rules for the functions and operation of
the Councils within two hundred days of the establishment of the
Authority.
(5) The Councils may recommend to the Authority appropriate action of
censure, fine against a broadcast or CTV station or licensee for violation of
the codes of programme content and advertisements as approved by the
Authority as may be prescribed.
27. Prohibition of broadcast media or distribution service operation.
The Authority shall by order in writing, giving reasons, prohibit any
broadcast media or distribution service operator from:
(a) broadcasting or re-broadcasting or distributing any programme or
advertisement if it is of the opinion that such particular programme or
advertisement is against the ideology of Pakistan or is likely to create
hatred among the people or is prejudicial to the maintenance of law and
order or is likely to disturb public peace and tranquility or endangers
national security or is pornographic, obscene or vulgar or is offensive to
the commonly accepted standards of decency; or
(b) engaging in any practice or act which amounts to abuse of media
power by way of harming the legitimate interests of another licensee or
willfully causing damage to any other person.
(Emphasis added)

The relevant provisions of Rules 8 and 10 of the Councils of Complaints

Rules are also reproduced here for convenience of reference:

Rule 8. Filing of complaint and functions of the Councils:-

………………………………………………………………………………………….
(4) A Council shall also take cognizance of such matters as referred to it
by the Chairman or the Authority and render its opinion thereon.
(5) A Council may recommend to the Authority appropriate action of
censure, fine upto the limit prescribed in section 29 of the Ordinance,
seizure, suspension or revocation of licence against a broadcast media
or distribution service provider or licensee for violation of the
Ordinance, rules, regulation, code of conduct for programmes and
advertisements or terms and conditions of licence.
(6) A Council shall keep the Authority informed on the feedback and
public response to the contents quality and impact of the programmes
and advertisements broadcast or distributed.

Rule 10. Procedure upon recommendation by a Council:- The

Authority shall take into consideration the recommendations made by a
Council in each matter and may approve the recommendations or
disagree with the recommendations, while recording the reasons in
writing for the same, and pass such order as deemed appropriate, or
refer the matter back to the Council for reconsideration if so considered
necessary in the opinion of the Authority.
(Emphasis added)
C.P. No. 3506/2020 9

A plain reading of Section 26 of the PEMRA Ordinance read with Rules 8

and 10 of the Councils of Complaints Rules shows that the function of
receiving and reviewing “complaints against any aspects of programmes”
or “such matters as referred to it by the Chairman or the Authority”
[PEMRA] and of rendering opinion on “such complaints” or “such matters”
is assigned by the legislature to the Councils of Complaints, each of which
consists of a chairperson and five members including at least two women,
who all are citizens of eminence from the general public. The “opinion” of a
Council of Complaints rendered under section 26(2) of the Ordinance is
then placed before PEMRA, which after giving due consideration to the
said opinion is to decide the matter in accordance with the parameters
spelled out in Section 27(a) of the Ordinance. Likewise, in the case of any
“recommendations" made by a Council of Complaints under section 26(5)
of the PEMRA Ordinance, PEMRA may approve the recommendations or
disagree with the same, while recording reasons in writing for the same,
and pass such order as deem appropriate or refer the matter back to the
Council concerned for reconsideration, under Rule 10 of the Councils of
Complaints Rules.

13. Under Section 26(2) of the PEMRA Ordinance, the Councils of

Complaint are empowered to receive and review complaints made by
persons or organizations from the general public against “any aspects of
programmes” and render their opinions on them. The expression “any
aspects of programmes” is wide enough to include the violation of any
provision of the PEMRA Ordinance, rules, regulations or code of conduct,
in respect of programmes. It can, therefore, be hardly argued that the
grounds provided for making an order prohibiting broadcast or
rebroadcast of a programme in Section 27(a) of the PEMRA Ordinance do
not fall within the expression “any aspects of programmes” used in Section
26(2). It has, however, been argued on behalf of PEMRA that the power of
the Councils of Complaints and PEMRA to review the contents of a
programme on the grounds mentioned in Section 27(a) is concurrent. We
are not convinced with this argument. As discussed above the scope of
regulatory framework under the PEMRA Ordinance is two tiered;
comprising the public regulatory body (Councils of Complaints) and the
governmental regulatory body (PEMRA). Further, if PEMRA had been
considered suitable to make the initial review of the contents of
programmes on the grounds mentioned in Section 27(a), then there would
have been no plausible reason to restrict the power of PEMRA in respect of
other grounds. Acceptance of this argument would negate the very
C.P. No. 3506/2020 10

justification for establishing the Councils of Complaints, the bodies

comprising the members of the public i.e. “citizens of eminence”.
Alternatively, it has been argued that the power of PEMRA under Section
27(a) is to be exercised by PEMRA suo motu i.e. on its own, while the
complaints from the general public are to be dealt with by the Councils of
Complaints under Section 26(2). This argument has also not impressed
us. In fact, it appears to be anomalous. For, it gives no plausible answer to
the question as to how the matter will proceed if PEMRA takes a suo motu
initiative of reviewing the contents of a programme and a complaint is also
filed before a Council of Complaints for the same purpose; which of the
proceedings would be carried on and which stopped, or would both the
proceedings continue simultaneously. Such a state of affairs would lead to
confusion and thus frustrate the legislative intent and object. Such an
interpretation of the statute cannot therefore be encouraged.

14. Further, the apprehension of the learned counsel for PEMRA

that if the power of PEMRA to act in such matters suo motu is not
conceded, it would frustrate the role of PEMRA as a regulatory body, is
also misconceived. There is no bar on PEMRA under the PEMRA
Ordinance to take notice, either on its own (suo motu) or on the
information received from any source, of the alleged contravention of any
provision of the PEMRA Ordinance, rules, regulations or code of conduct
in relation to the broadcasting of any programme or advertisement, and
then to refer the said matter to a Council of Complaints for reviewing the
same and rendering its opinion thereon in terms of Section 26 of the
PEMRA Ordinance. It is worth noting that as per Rule 8(4) of the Councils
of Complaints Rules, the Councils of Complaints are bound to take
cognizance of any matter referred to them by the Chairman or PEMRA and
to render their opinion thereon. Rules validly made to carry out the
purposes of a statute are an integral part of that statute.7 It is, therefore,
also necessary to read them in conjunction with the statute to fully
understand the operational scheme of any particular provision of the
statute.

15. It has also been argued on behalf of PEMRA that the Councils
of Complaints have no power under Section 26(5) to recommend an action
of prohibiting the broadcast of any programme and can only recommend
the action of censure or fine. As such, it has been argued, that Section
27(a) confers an independent power on PEMRA which is not dependent

7
Ibrahim v. Regional Transport Authority AIR 1953 SC 79 (5-MB); National Insurance Co. v. Swaran Singh
AIR 2004 SC 1531 (3-MB).
C.P. No. 3506/2020 11

upon obtaining and considering the opinion of a Council of Complaints.

We find that this argument has been made without appreciating the
difference between the powers of the Councils of Complaints under
subsection (2) and subsection (5) of Section 26 of the PEMRA Ordinance.
The power of the Councils of Complaints under subsection (2), to receive
and review “complaints against any aspects of programmes” and to render
“opinion on such complaints”, is a power distinct from its power under
subsection (5) to recommend action of censure or fine, which is in addition
to its power of rendering an opinion on any aspect of the programme
complained of. Indeed, a Council of Complaints cannot recommend the
action of prohibiting the broadcast or rebroadcast of any programme, and
the appropriateness of taking such an action is to be decided by PEMRA
by itself, but it can do so only after receiving or obtaining, as the case may
be, and considering the opinion of the Council of Complaints concerned
on the objectionable aspect of the programme as per Section 26(2) of the
PEMRA Ordinance read with the Councils of Complaints Rules.

16. The attention of the Court was also invited to the proviso to
Section 30(1)(b) of the PEMRA Ordinance, in support of the contention
that the legislature has provided expressly where it intended PEMRA to
act after obtaining and considering the opinion of a Council of Complaints,
and that the absence of such a provision in Section 27(a) suggests that
PEMRA is to act under Section 27(a) independent of any opinion of a
Council of Complaints. This contention is based upon a reading of the
various provisions of the PEMRA Ordinance in isolation of each other and
upon their fragmented interpretation, which approach rarely leads to a
correct understanding of the meaning and scope of a particular provision
of law. This Court has, therefore, always preferred the approach of holistic
interpretation to that of fragmented interpretation while interpreting any
provision of the Constitution8 or a statute9. By this approach, the courts
seek to ascertain the overall intent and purpose of the law and, by
considering how its individual provisions fit within its larger framework,
attempt to harmonize their meaning and scope with each other. In making
the said contention, it has not been noticed that even in Section 29(6),
which empowers PEMRA to impose fine on a licensee who contravenes any
of the provisions of the PEMRA Ordinance, or of the rules or regulations
made thereunder, no provision like proviso to Section 30(1)(b) is provided
for and despite this omission, no one has argued, and perhaps rightly so,

8
Munir Bhatti v. Federation PLD 2011 SC 407; D.B.A., Rawalpindi v. Federation PLD 2015 SC 401;
Reference No.1 of 2020 PLD 2021 SC 825.
9
Waqar Bakhtawari v. Mazhar Shah PLD 2018 SC 81 (Previous cases are cited in it).
C.P. No. 3506/2020 12

that PEMRA can exercise its power to impose fine on a licensee for any
such contravention in respect of any aspect of a programme or
advertisement, without first obtaining the opinion of the Council of
Complaints concerned. For, the provisions of Section 29(6) are to be read
with the provisions of Section 26(5) and given effect accordingly.

17. It has also been argued on behalf of PEMRA that the Councils
of Complaints have no power to receive and review complaints against any
“advertisement” under Section 26(2), while PEMRA has such power under
Section 27(a); therefore, the power of PEMRA under Section 27(a) is
independent of the provisions of Section 26. It is true that the word
“advertisement” is not mentioned in subsection (2) of Section 26 but it is
found mentioned in subsection (5) thereof. The omission of this word in
subsection (2) of Section 26 appears to be an accidental one, as it does not
fit within the overall intent of the legislature manifested from reading the
provisions of Section 26 as a whole. Needless to say that the ultimate
object of the process of interpretation of a statute is to find out what the
legislature must have intended and then to give effect to that intent of the
legislature,10 and in order to give effect to the manifest intent of the
legislature, the courts can supply the inadvertent omission of the
draftsman by reading the necessary words in the statute.11 Subsection (5)
of Section 26 clearly empowers the Councils of Complaints to make a
recommendation to PEMRA for the action of censure or fine against a
licensee for violation of the codes not only of programmes content but also
of advertisements. The provisions of subsection (5) of Section 26 thus
make the intent of the legislature abundantly clear that it intended to
confer the power on the Councils of Complaints to receive and review
complaints against any aspects of programmes or advertisements, which
shall be so read in subsection (2) of Section 26, in order to give effect to
that manifest intent of the legislature.

18. Lastly, the learned counsel for PEMRA contended that it

cannot be possible to hold that the power of PEMRA under clause (a) of
Section 27 is dependent on obtaining and considering the opinion of a
Council of Complaint but its power under clause (b) of the same Section is
an independent one. The question whether the power of PEMRA under
clause (b) is or is not independent, does not arise in the circumstances of
the present case; therefore, we do not consider it appropriate to take up

10
Badrul Haque v. Election Tribunal PLD 1963 SC 704 (5-MB); Reference No.1 of 2012 PLD 2013 SC 279
(5-MB).
11
Amir Khan v. Controller of Estate Duty PLD 1961 SC 119 (3-MB); Amir Khan v. Controller of Estate
Duty PLD 1962 SC 335 (4-MB); Muhammad Ismail v. State PLD 1969 SC 241 (5-MB).
C.P. No. 3506/2020 13

and decide the same in vacuum as an academic question. However, in

view of the discussion above, especially with regard to the legislative intent
in establishing the Councils of Complaints under Section 26 of the PEMRA
Ordinance for making review of “any aspects” of the programmes, we deem
it necessary to state that if the power of PEMRA under clause (b) of
Section 27 is to be exercised in respect of “any aspects” of a programme or
advertisement, then it must be exercised after obtaining and considering
the opinion of the Council of Complaint concerned under Section 26(2) of
the PEMRA Ordinance.

19. From the above discussion it transpires that to regulate pubic

fundamental rights of expression and information, the PEMRA Ordinance
envisages a two tiered regulatory system. The media content has to be first
viewed by the Council of Complaints, an independent public regulatory
body and after obtaining its opinion, PEMRA, the government regulatory
body, is to consider the opinion of the Council of Complaints and finally
decide the matter. It is also worth taking note that under Section 13 of the
PEMRA Ordinance, PEMRA allows delegation of its powers and functions
to its Chairman or a member or to any member of its staff, or to an
expert, consultant or adviser12. This delegation of the powers and
functions of a 13-member authority to a single person also necessitates
that the Councils of Complaints, comprising six members of eminence
from the general public, must first examine the complaints. Even if suo
motu notice is taken by PEMRA or its Chairman, as to “any aspects of
programmes”, the matter has to be first sent to a Council of Complaints
for its opinion and after considering the said opinion, PEMRA or its
Chairman, as the case may be, can take the final decision.

Selection and appointment of members of the Councils of Complaints

20. Selecting and appointing members of the public to regulate

media content on the Councils of Complaints must, therefore, represent
diverse interests and perspectives of the public while ensuring
independence and impartiality. The Federal Government must establish:
(i) clear criteria for the selection of public representatives, which might
include a mix of expertise, professional backgrounds, demographic
diversity and geographic representation; (ii) announce the opportunity to
serve on the Councils through various channels, such as newspapers,
websites, social media and community organizations. This will help attract
12
We have serious reservations on the blanket delegation of its powers and functions by PEMRA to its
Chairman, as it prima facie nullifies the purpose of establishing an inclusive authority comprising a
Chairman and twelve members. But as the matter of such delegation is not under challenge before us, we
abstain from examining and deciding upon it.
C.P. No. 3506/2020 14

a diverse pool of applicants; (iii) set up an application process that

requires interested individuals to submit their credentials, relevant
experience and a statement explaining their motivation for serving on the
regulatory body. This information will be used to evaluate the suitability of
each applicant; (iv) establish an independent selection committee
composed of representatives from different sectors, e.g. media, academia,
civil society, to review applications and recommend candidates. The
committee should ensure a transparent and impartial selection process;
and (v) provide the members, once appointed, with training and
orientation on media regulation, ethics and relevant laws. This will help
them make informed decisions and effectively contribute to the regulation
of media content. The inclusion of public representatives in media
regulation, in this manner, can contribute to greater transparency,
diversity and public trust in the media ecosystem.

21. Having examined the contentions advanced on behalf of

PEMRA and after reading the provisions of Sections 26 and 27 in
conjunction with other relevant provisions of the PEMRA Ordinance and
the Councils of Complaints Rules made thereunder, we are of the
considered opinion that Section 27(a) of the PEMRA Ordinance is not an
independent and self-governing provision; it rather requires for its
applicability the opinion of a Council of Complaints regarding the
objectionable aspect of a programme or advertisement in terms of Section
26(2) of the PEMRA Ordinance read with the Councils of Complaints
Rules. The question is answered accordingly.

22. In view of the above answer to the question, we find that the
High Court is correct in holding that PEMRA could not have bypassed the
Councils of Complaints in making the prohibition order and has rightly
set aside the prohibition order. However, the High Court should have also
specified that the matter of making a review of the objectionable aspect of
the drama serial was to be referred by PEMRA to the Council of Complaint
concerned, and after receiving and considering the opinion of that
Council, PEMRA could make an appropriate order. With the said
clarification, we find nothing wrong in the impugned judgement.
Therefore, we dismiss the petition and decline the leave to appeal.

Regulating content: what is “obscene”, “vulgar” and “offensive to the

commonly accepted standards of decency”
23. It is important to understand on what standards the members
of the Councils of Complaints will assess the media content. Every statute
is in the public interest and must always align and flow with the text and
C.P. No. 3506/2020 15

spirit of the Constitution. Therefore, the constitutional values,

fundamental rights and the principles of policy laid down under the
Constitution enjoy a symbiotic relationship with any statutory framework
including the one regulating media content i.e. Sections 20(c) and 27(a) of
the PEMRA Ordinance, the PEMRA Rules 2009, the PEMRA (Content)
Regulations 2012 and the Electronic Media Code of Conduct-2015. This
statutory framework has to be read subject to the Constitution.

24. We wish to underline that the members of the Councils of

Complaints while applying the constitutional and statutory standards
must always view the media content through the lens of the constitutional
value of tolerance. “Tolerance” is an essential preambular constitutional
value that assumes more significance in the context of freedom of
expression and right to information. It is a multifaceted concept and at its
core, tolerance refers to the ability or willingness to accept and respect
differences in opinions, beliefs, customs and practices among individuals
or groups. This can include differences in race, religion, culture, gender,
sexual orientation, political ideology and other aspects of human diversity.
Tolerance promotes understanding, harmony and coexistence among
people with diverse backgrounds, fostering open-mindedness and
empathy. In a broader sense, it is an essential aspect of democratic
societies, as it supports freedom of expression and the exchange of ideas,
ultimately contributing to social cohesion and stability. It is important to
note that tolerance does not necessarily imply agreement with or
endorsement of the opinions or beliefs of others; rather, it is about
respecting their right to hold those beliefs and coexist peacefully. The
standard of tolerance in a society can be influenced by several factors.
Societies with a tradition of valuing diversity and inclusivity tend to have
higher levels of tolerance. In these societies, people are more likely to be
accepting of differences and supportive of equal rights for all members of
society. Societies that emphasize education and promote awareness of
diverse cultures, religions and ways of life, tend to foster tolerance among
their citizens. By understanding different perspectives and experiences,
people are better equipped to appreciate and respect the diversity within
their society. In some societies, tolerance is enshrined in the legal
framework through anti-discrimination laws, human rights protections
and equal opportunity policies. These measures help to create an
environment in which tolerance is promoted and intolerance is
discouraged. The standard of tolerance in a society is not static; it can
change over time as a result of shifting cultural values, political climates
C.P. No. 3506/2020 16

and other factors. It is essential for the Councils of Complaints to promote

tolerance and inclusivity, as this is crucial for fostering peace,
understanding and social cohesion in an increasingly diverse and
interconnected world.

25. It is also important to underline that freedom of expression is

an effective and a powerful fundamental rights as it gives voice to other
freedoms and rights i.e. freedom of thought, right to life, liberty and
dignity. Freedom of expression helps actualize other fundamental rights,
hence its prominence and importance is easily distinguished in the cluster
of fundamental rights. However, while freedom of expression is a
fundamental human right, it is not absolute and can be subject to certain
limitations. These limitations are usually put in place to balance the rights
of individuals with the broader interests of society, public order, and
national security. Some common limitations on freedom of expression
include: (i) laws against defamation (libel and slander), which are in place
to protect individuals' reputations from false and damaging statements; (ii)
laws against hate speech, which is a speech that incites violence,
discrimination or hostility towards a particular individual or group based
on attributes such as race, religion, ethnicity, gender or sexual
orientation. Such laws aim to protect targeted groups from harm and
promote social harmony; (iii) laws against obscenity and pornography to
protect public morality and decency; (iv) laws to protect national security,
public order or public safety. In times of emergency or crisis, governments
may impose temporary limitations on freedom of expression to maintain
public order, protect national security or prevent the spread of
misinformation; and (v) laws to protect personal privacy. Such laws may
restrict the disclosure of certain information, such as medical records or
personal correspondence, to protect individuals' right to privacy. It is
important to note that these limitations should be necessary,
proportionate and clearly defined by law to avoid abuse or infringement on
fundamental freedoms. In democratic societies, the courts often play a
crucial role in interpreting and determining the appropriate balance
between freedom of expression and these limitations.

26. The fundamental point that needs to be noted in this regard is

that the exhibition of any kind of works of art and literature, which
includes plays and dramas broadcasted on electronic media, is a part of
the fundamental right to freedom of expression guaranteed by Article 19 of
C.P. No. 3506/2020 17

the Constitution13 and right to information guaranteed under Article 19A

of the Constitution. Freedom of expression and right to information are
complementary fundamental rights and constitute essential foundations
of a democratic society. It is applicable not only to information or ideas
that are favourably received but also to those which offend, shock or
disturb the State or any other sector of the population. Such are the
demands of pluralism, tolerance and broadmindedness without which
there is no democratic society.14 Freedom of expression is so fundamental
a human right that one can have no other right unless one has this right
and can ask for his rights.15 Freedom of expression thus begets all other
freedoms, and the right to freedom of expression guarantees all other
rights. It is because of the paramount importance of this right that it has
been included in the Universal Declaration of Human Rights (UDHR)16 and
the International Covenant on Civil and Political Rights (ICCPR)17.

27. Crucial though freedom of expression and right to information

are to an open and democratic society, these rights are not absolute.
Some reasonable restrictions can be imposed on these right by law in the
interest of any of the objectives mentioned in Articles 19 and 19A of the
Constitution.18 However, such restrictions must be “reasonable”19 and any
ambiguity as to the reasonableness of a restriction must be resolved in
favour of protecting the exercise of the fundamental right rather than
enforcing the restriction.20 To ensure that they are not unnecessarily used
to suppress the right, the clawback provisions of a law containing the
restrictions on the right should be interpreted strictly and narrowly.21 The
courts are to be conscious that in a fledgling democracy like ours, there is
all the more need to jealously guard the right to freedom of expression and
right to information. Given the pivotal importance of these fundamental
rights in a democratic society, it is not enough for the State and its
instrumentalities (including PEMRA) simply to claim that the restriction
relates to a legitimate objective. The reasonable restrictions must also be
proportionate in that the legitimate objective cannot reasonably be
achieved through a means less restrictive of the right protected by the
Constitution. The reasonable restrictions should therefore not only be

13
Leo Communication v. Federation, PLD 2017 Lah 709.
14
Handyside v. United Kingdom, (1976) 1 EHRR 737 (European Court of Human Rights).
15
State of Human Rights in 2021 (Pakistan), Annual Report of the Human Rights Commission of Pakistan
(Freedom of Expression, the main theme of the Report).
16
Pakistan became a signatory of the UDHR in 1948.
17
Pakistan ratified the ICCPR in 2010.
18
See also Article 19(3) of the ICCPR.
19
East Pakistan v. Sirajul Haq, PLD 1966 SC 854.
20
Nadeem Sarwar v. E.C.P, 2013 CLC 1481 (FB of LHC).
21
See General Comment No. 34 of the UN Human Rights Committee.
C.P. No. 3506/2020 18

rationally connected to, but also be no more than necessary to

accomplish, any of the legitimate objectives mentioned in Articles 19 and
19A of the Constitution.22

28. The restriction imposed by law, i.e. the PEMRA Ordinance, on

the right to freedom of expression in relation to any programme including
a play or drama, or any advertisement, broadcasted on the electronic
media, on the ground of it being “obscene”, “vulgar” or “offensive to the
commonly accepted standards of decency”, is defended to achieve the
legitimate objectives of securing the interest of “public decency” and
“public morality” as mentioned in Article 19 of the Constitution. This
restriction, however, should not be more than necessary in its scope and
applicability, to accomplish the said objectives. Additionally, while it is
accepted that what constitutes appropriate limitation on freedom of
expression to protect morals does vary from society to society, it must be
kept in mind that the concept of decency and morality is derived from
many social, philosophical and religious traditions; therefore, the
limitations for the purpose of protecting public decency and public
morality must be based on principles not deriving exclusively from a single
tradition,23 and any such limitations must be understood in the light of
universality of human rights and the principle of non-discrimination.24

29. The expressions “obscene”, “vulgar” and “offensive to the

commonly accepted standards of decency” as used in Section 27(a) of the
PEMRA Ordinance, are actually interconnected. Only that form of an
expression can be said to be “obscene” or “vulgar” which is “offensive to
the commonly accepted standards of decency”. Thus, the “commonly
accepted standards of decency” in the community is the benchmark to
determine whether or not a particular form of the expression of one’s
thought, idea or opinion in a play or drama is “obscene” or “vulgar”. The
important thing to understand is that the commonly accepted standard of
decency in a community is a “standard of tolerance, not taste”.25 It is not
what the people generally think is right for them to see but what they
would not tolerate others being exposed to it on the basis of the degree of
harm to “public decency” or “public morality” that may flow from such
exposure. Further, the expression “commonly accepted standards of
decency” must be understood to be the contemporary standards as the
social mores and sensibilities change over time.

22
R v. Oakes, [1986] 1 SCR 103 (Supreme Court of Canada).
23
General Comment No. 22 of the UN Human Rights Committee.
24
General Comment No. 34 of the UN Human Rights Committee.
25
R v. Butler, [1992] 1 SCR 452 (Supreme Court of Canada).
C.P. No. 3506/2020 19

30. A work of art and literature, which includes a play or drama

broadcasted on the electronic media, is usually considered a strong and
effective medium to break the silence on social taboos; therefore, it is not
to be labelled as “obscene” or “vulgar” readily without appraising the
message it intends to convey.26 In this perspective, one would need to see
whether that message tends to promote or glorify the conduct or behavior
which is offensive to the commonly accepted standards of decency, or it
tends to condemn or deprecate such conduct or behavior. Such a review is
to be undertaken on an objective assessment of the play or drama as a
whole, not on the basis of pick and choose of its parts from here and
there. If the ultimate message of the play or drama under review passes
the test of being not offensive to the commonly accepted standards of
decency, the review of a particular part thereof which depiction is
necessary to convey the message effectively must be lenient and tolerant.
However, where the obscenity of such part is too pronounced to eschew,
only the objectionable part should be prohibited from being broadcasted
and directed to be suitably modified, and the broadcast or rebroadcast of
the complete play or drama must not be prohibited. In view of the
applicability of the principle of proportionality to restrictions on the rights
guaranteed by the Constitution as expounded above, such an approach is
necessary to protect the exercise of the fundamental right to freedom of
expression and right to information to the maximum extent possible and
to enforce the restrictions on the exercise of these rights to the minimum.

Judge

Announced
on 12th April, 2023, Judge
at Islamabad.

Judge

Approved for reporting

Sadaqat

26
Ramamurthy v. State of Mysore AIR 1954 Mys 164 (DB).