Intervention Application Summary (Sashi Kumar)Constitutionality of Sedition
Background and Issue
The Supreme Court (SC) is hearing a challenge to the crime of sedition under Section 124-A of the Indian Penal Code, 1860 (IPC). Multiple parties have filed Intervention Applications in the case, in order to have their arguments heard by the Court.
Mr. Shashi Kumar, a journalist and founder of the TV channel Asianet, filed an Intervention Application on July 8th 2021. He intervened in the current challenge, arguing that the criminalisation of sedition is unconstitutional.
Section 124-A of the IPC is Vague and has a ‘Chilling Effect’ on Free Speech
The intervenor argues that expressions like ‘hatred’, ‘contempt’ and ‘disaffection’, which are used in s 124-A of the IPC, are inherently vague. He refers to Shreya Singhal v Union of India where the Court struck down s 66A of the Information Technology Act, 2000 due to its vagueness.
The vagueness in s 124-A has enabled the executive to criminalise speech and dissent against the government. As the provision makes no distinction between dissent and an attempt to overthrow the state, it has a ‘chilling effect’ on the freedom of speech.
Revisiting Kedar Nath Singh
In Kedar Nath Singh v State of Bihar (1962) the SC held that even if the sedition provisions could have different interpretations, one which would make them constitutional and one which didn’t, the Court would lean in favour of upholding its constitutionality.
The intervenor argues that as the IPC was passed before the Constitution of India, 1950 came into force it cannot be presumed to be constitutionally valid. The Court in (2018) also held that the provisions in the IPC could not be presumed to be constitutional.
The Intervenor argues that the Kedar Nath should be revisited to apply the contemporary ‘test of proportionality’. In Anuradha Bhasin v Union of India (2020). Before Navtej Singh Johar v Union of Indiaan authority passes any order (provision in this case) restricting fundamental rights, certain determinations must be made. Firstly, the order must have a legitimate goal. Secondly, the authority must determine that there isn’t a less restrictive alternative mechanism that can be used. Lastly, the order must be supported by sufficient material and must be open to judicial review.
Politically Biased Application of 124-A
The intervenor argues that s 124-A has been applied in a political manner to frivolous offenses which have no relation to public order or national security. While a large number of cases are instituted only a small number of convictions have taken place. For example, in 2018 there were 70 new sedition cases and 120 cases pending from previous years. However, only 38 cases were sent to trial and only two people were convicted.
Further, while the number of convictions each year between 2016-18 has been either one or two, the intervenor argues that the number of people charged with sedition in this timespan has increased dramatically.