IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION I. A. No. OF 2021 IN WRIT PETITION (CRIMINAL) No. 106 OF 2021 IN THE MATTER OF: Kishorechandra Wangkhemcha & Anr … Petitioners VERSUS Union of India … Respondent AND IN THE MATTER OF: Foundation of Media Professionals … Proposed Intervenor PAPER BOOK [FOR INDEX PLEASE SEE INSIDE] ADVOCATE FOR THE INTERVENOR: RAHUL BHATIA INDEX S. Particulars Page No. No. 1. Application for Intervention 1 -35 2. Annexure-A: 36-54 Copy of the MOA of the Intervenor Society 3. Annexure-B: 55 Copy of the Aurhorization letter to file the application 4. Annexure-C: 56-88 copy of the report released by Free Speech Collective entitled “Behind Bars- Arrest and Detention of Journalists in India” 5. Vakalatnama 89 1 IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION I. A. No. OF 2021 IN WRIT PETITION (CRIMINAL) No. 106 OF 2021 IN THE MATTER OF: Kishorechandra Wangkhemcha & Anr … Petitioners VERSUS Union of India … Respondent AND IN THE MATTER OF: Foundation of Media Professionals B-57, Second Floor, New Rajinder Nagar, New Delhi … Proposed Intervenor APPLICATION FOR INTERVENTION To The Hon’ble Chief Justice of India and His Companion Judges of the Supreme Court of India The humble application of the applicant above named MOST RESPECTFULLY SHEWETH: 1. The captioned Writ Petition has been filed challenging the constitutionality of section 124 A of the Indian Penal Code, 2 1860 (“Code”), encapsulating the crime of sedition, as has been preserved since the colonial era. The Petitioners contend that the crime of sedition is outdated and obsolete, given the various enactments which pointedly punish any and all acts against the State. The Petitioners further contend that the crime of sedition does not amount to a reasonable restriction on the fundamental right of speech and expression under Article 19(1)(a) of the Constitution of India (“Constitution”), as it promotes a miscellany of frivolous cases against media professionals, ruthlessly curtailed in their employment. 2. It is submitted that Professor Vincent Blasi’s opinion in his paper – ‘The Pathological Perspective and the First Amendment, 85 COLUM. L. REV 449 (1985)’ isapposite for consideration of the seminal question, involved in this writ petition, as to whether the offence of ‘Sedition’ ought to continue in the statute books of an independent sovereign democratic republic. Professor Blasi argues: “Constitutions are designed to control, or at least influence, future events-political events, adjudicative 3 events, to some extent even interactions between private parties. Yet the future is unknowable, largely unpredictable, and inevitably variable. At any moment there exists a short-run future, a long-run future, and a future in between. The future is virtually certain to contain some progress, some regression, some stability, some volatility. How is a constitution supposed to operate upon this vast panoply? … My thesis is that in adjudicating first amendment disputes and fashioning first amendment doctrines, courts ought to adopt what might be termed the pathological perspective. That is, the overriding objective at all times should be to equip the first amendment to do maximum service in those historical periods when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically. The first amendment, in other words, should be targeted for the worst of times.” 4 3. The Applicant submits that the fundamental right to freedom of speech and expression is one of the most cherished Fundamental Rights as it guarantees the Media’s right to free speech and expression in a democracy. “19. Protection of certain rights regarding freedom of speech etc (1)All citizens shall have the right (a) to freedom of speech and expression;” 4. Fundamental Rights guaranteed under Article 19(1)(a) of the Constitution can only be restricted under the subject matters mentioned in Article 19(2) which sets out the permissible restrictions and states: “Art. 19(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.” 5. It is a settled position of law that the provisions of Article 19(2) of the Constitution of India deserve to be construed strictly so 5 as to ensure enjoyment of Freedom of Speech and Expression as a Fundamental Right guaranteed under Article 19(1)(a) of the Constitution of India. 6. A very brief conspectus of some relevant decisions of the Hon'ble Supreme Court on the fundamental right to freedom of speech and expression are given below: a. In Bennett Coleman & Co. versus Union of India (1972) 2 SCC 788, the Hon’ble Court held that intellectual advances made by civilisation would have been impossible without freedom of speech and expression and at any rate, political democracy is based on the assumption that such freedom must be jealously guarded. In the above matter the Hon’ble Court, inter alia, opined that:- “……Freedom of the Press is the Ark of the Covenant of Democracy because public criticism is essential to the working, of its institutions. Never has criticism been more necessary than today, when the weapons of propaganda are so strong and so Subtle. But, like other liberties, this also must be limited." b. In Express Newspapers Pvt. Ltd. & Ors. versus Union of India & Ors (1986) 1 SCC 133,Hon'ble Supreme Court 6 observed that:- “……..Democracy relies on the freedom of the press. It is the inalienable right of everyone to comment freely upon any matter of public importance. This right is one of the pillars of individual liberty-freedom of speech, which our Court has always unfailingly guarded.” c. In Sakal Papers Pvt. Ltd. & Ors. versus Union of India & Ors. AIR 1962 SC 305, the Hon’ble Supreme Court observed that:- “……….The right to freedom of speech and expression is an individual right guaranteed to every citizen by Article 19(1)(a) of the Constitution. There is nothing in clause (2) of Article 19 which permits the State to abridge this right on the ground of conferring benefits upon the public in general or upon a section of the public. It is not open to the State to curtail, or infringe the freedom of speech of one for promoting the general welfare of a section or a group of people unless its action could be justified under a law competent under clause 7 (2) of Article 1.” d. In Bennett Coleman & Co. versus Union of India (supra), the Court indicated that the extent of permissible limitations on this freedom are indicated by the fundamental law of the land itself viz. Art 19(2) of the Constitution. It was laid down that permissible restrictions on any fundamental right guaranteed under Part III of the Constitution have to be imposed by a duly enacted law and must not be excessive i.e., they must not go beyond what is necessary to achieve the object of the law under which they are sought to be imposed. e. In LIC versus. Manubhai Shah (1992) 3 SCC 637, the Hon’ble Supreme Court observed:- “……….Therefore, in any set-up, more so in a democratic set-up like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution” . The Hon’ble Court went on to state that “But since permissible restrictions, albeit reasonable, are all the same restrictions on the exercise of the fundamental right under Article 19(1)(a), such restrictions are bound to be viewed as anathema, in that, they are in the nature of 8 curbs or limitations on the exercise of the right and are, therefore, bound to be viewed with suspicion, thereby throwing a heavy burden on the authorities that seek to impose them. The burden would, therefore, heavily lie on the authorities that seek to impose them to show that the restrictions are reasonable and permissible in law.” f. The Hon’ble Supreme Court in its judgement in Shreya Singhal vs Union of India (2015)5 SCC 1observed that Section 66A creates an offence which is vague and overbroad, and, therefore, unconstitutional under Article 19(1)(a) and not saved by Article 19(2). The Hon’ble Supreme Court observed that: “…………..Section 66A purports to authorize the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action.” The said judgementsre-emphasized and re-enforced the cardinal principle that the restrictions on the exercise of rights under Article 19(1)(a) can only be strictly in accordance with 9 the principles of Article 19(2) and thwarted the attempt to expand the scope of Article 19(2) and going beyond the jurisdiction to impose restriction as envisaged under the said provision. A perusal of Article 19 (2) reveals that any legislation which restricts the freedom of speech and expression guaranteed under Article 19(1) (a) must: (i) be reasonable; (ii) have a rational nexus with the limited objectives/grounds provided for in Article 19 (2), namely sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.