Intervention Application Summary (Foundation for Media Professionals)

Background and Issue

The Supreme Court (SC) is currently 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.

The Foundation for Media Professionals (FMP) filed an Intervention Application on July 9th 2021. The FMP supports causes that help maintain the professional integrity of journalism and they have intervened in many Public Interest Litigation cases associated with media freedom.

The FMP has intervened in the current challenge, arguing that the criminalisation of sedition is unconstitutional.

Grounds

Historical Origins: Colonial Sedition Law Stifled the Independence Movement

The crime of sedition was first included in the Draft Penal Code, 1837 by Lord Macaulay. It was included in the IPC 10 years after its enactment in 1870 by Justice Fitz James Stephen. Colonial era judgments established that no mens rea (intention or knowledge of wrongdoing) was necessary to constitute sedition. The intervenor argues that this was done with the intention to ‘crush the independence movement’ and not for democratic purposes.

The Constituent Assembly Deleted Sedition From the Draft Constitution

The intervenor referred to observations made by Professor K.T. Shah and Mr. K.M. Munshi regarding sedition during Constitutional Assembly Debates. Both members of the assembly delivered strong statements against the inclusion of the word ‘sedition’ in the Constitution of India, 1950. The intervenor argues that even during the debates, sedition wasn’t considered to be a reasonable restriction on free speech and expression.

Sedition Law Precedent

The intervenor argues that the test for sedition laid down in Kedar Nath v State of Bihar (1962) was to see whether the allegedly seditious act subverted the institution of the government or the persons carrying out the administration.

This test is ‘pedantic’ according to the intervenor, and fails to consider how journalists are vulnerable to harassment through s 124 A of the IPC. They often spend months in jail awaiting their trial for actions taken in the course of performing their job.

While continuing to focus on the harm to media professionals, the intervenor argues that the term ‘disaffection towards the Government established by law’ is vague. This opens the provision up to subjective interpretation and misuse.

The Pathological Perspective on Freedom of Speech

The intervenor begins their application by invoking an argument made by Professor Vincent Blasi in his paper ‘The Pathological Perspective and the First Amendment’. In the United States of America, the First Amendment protects freedom of speech.

 

In Professor Blasi’s paper, he argues that when adjudicating disputes on freedom of speech, the court’s objective must be to ‘equip’ this freedom such that it is able to do maximum service when governments are able and likely to stifle dissent. It should be targeted for ‘the worst of times’. The intervenor urges the Supreme Court (SC) to adopt this ‘pathological perspective’ in this case.