Writ Petition Summary (Kishorelal Wangkhemcha & Kanhaiya Lal Shukla)Constitutionality of Sedition
Background and Issue
Section 124A of the Indian Penal Code, 1860 defines sedition. It states that any person that does an act inciting or attempting to incite hatred, contempt or dissatisfaction towards the Government established by law will be imprisoned and/or fined.
The petitioners are two journalists, Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla from Manipur and Chattisgarh. They have been charged with sedition previously, for posts and cartoons made on social media. The petition challenges the constitutionality of Section 124A, on the grounds that the provision violates the Right to Freedom of Speech and Expression guaranteed under Article 19(1)(a) of the Constitution of India, 1950.
What Does the Petitioner Seek?
The Petitioner prayed for the Court to-
- Declare Section 124A of the Indian Penal Code 1860, unconstitutional and void
Grounds for the Petition
The petitioners raise the question as to whether section 124A of the IPC falls under ‘reasonable restrictions under Article 19(2). They highlight that in the case of Kedar Nath Singh v State of Bihar, the Supreme Court held that barring the reasonable restrictions under Article 19(2), it was apparent that Section 124A was unconstitutional. As laid down in the State of Madras v. V.G Row, ascertaining reasonableness requires understanding the nature of the right; purpose of the restriction imposed; extent and urgency of the issue sought to be remedied; and the circumstances of the time.
The petitioners claim that since Kedar Nath Singh v. State of Bihar, the material factors have changed, rendering the application of reasonableness to S. 124A outdated.
Security and public order
Among the criteria to ascertain reasonableness is that of the purpose of a restriction. The petitioners noted that historically the purpose was stated to be preventing public disorder or violence. They further noted that while waging war against the government or acts of terrorism can threaten State security and public order, the acts done by the petitioners are not.
The petitioners contend that attempts and conspiracy to wage war are both covered under sections 121, 121A and 122 IPC. The provision for sedition is unnecessary. Moreover, it has a chilling effect on an individual’s right to freedom of speech and expression.
Further, the petitioner referred to Unlawful Activities (Prevention) Act, 1969; Jammu and Kashmir Public Safety Act, 1978; The National Security Act, 1978 which have provisions dealing with terrorism, public disturbance and violence. These statutes further highlight the redundancy of Section 124A. While the petition also notes the importance of 124A in dealing with threats to public order and national security, emphasis is put on its misuse and chilling effect on fundamental rights.
Obligations under International Law
The petition highlighted the fact that India has ratified and is bound by the International Covenant on Civil and Political Rights (ICCPR). Article 19 highlights freedom of expression as a right. For any reasonable restriction, it sets out two standards that have to be met. The restriction has to be a necessity and it must be provided by the law.
For reasons discussed above, the petitioners contend that the ‘necessity’ criteria is not fulfilled. To satisfy the ‘provided by law’ requirement, the provision needs to meet the standards of ‘legality’, which the petitioners claim it does not.
The petitioners noted that while the misuse of a law does not render it void, the ease with which a law can be misused points to its lack of clarity and certainty. Referring to the FIRs filed against them, the petitioners noted that the abuse of this law is politically motivated. Words such as ‘intention’ and ‘tendency’ in Section 124A are not properly defined, allowing misuse.