Whether Sections 124-A and 500-A of the Flavian Penal Code are violative of the

fundamental right to freedom of speech and expression?

The counsel on behalf of Petitioner humbly submits that section 124A and 500-A of Flavian
Penal Code, 1860 constitutes anunreasonable restriction to freedom of speech and expression
under article 19 of the Flavian constitution. In the foundation session of the United Nations
General Assembly in 1946 put it accordingly: Freedom of information is a fundamental
human right and the standard of all of the freedoms to which the United Nations is
consecrated.1

The validity of a statute can be challenged on grounds of contravention of fundamental

rights,2and unreasonableness of the law.3 In the instant case, it is submitted that section 124-A
should be struck down as being against the article 19 of the Flavian constitution (a) Section
500-A imposes unreasonable and arbitrary discretion (b)

SECTION 124-A IS AGAINST THE ARTICLE 19 OF THE FLAVIAN CONSTITUTION

Freedom of speech, one of the most basic elements for a healthy, open minded democracy
and is foundation of any democratic society4.

It is humbly submitted before the court that article 19 comes with reasonable restriction but
phrase ‘restrictions’ imposed on a person in the enjoyment of a right should not be arbitrary
or of an excessive nature, beyond what is required in the interests of the public. 5 In this
context, Sec. 124-A is against the letter and spirit of democracy because the section is vague
in its construction & overbroad [a] .Curbs free speech and legitimate criticism

Sec. 124-A is Vague in its Construction& overbroad

It was held in K.A. Abbas v. Union of India, 6 that a law affecting a Fundamental Right may
be held bad for sheer vagueness and uncertainty. A person cannot be deprived of his
Fundamental Right by a law whose command is uncertain and does not sufficiently indicate
to the individual offered by it how he could avoid coming within the mischief of the law.7
1
GA Resolution 59(I), 14 December 1946.
2
Kheybari Tea Co. Ltd. v. State of Assam, AIR 1964 SC 925.
3
Maneka Gandhi v Union of India [1978] 1 SCC 248
4
Union of India V. Motion Picture Association , AIR 1999 SC 23345
5
ChintamanRao v. State of Madhya Pradesh, AIR 1951 SC 118.8
6
K.A. Abbas v. Union of India, AIR 1973 SC 123
7
Collector of Custom v. Nathella Sampathu Chetty, AIR 1962 SC 316
Section 124-A which includes a person who excite or attempt to excite the standard for
incitement differs from person to person and no objective standard has been laid down by the
Penal Code of Flavia for the same, which itself provides huge amount of flexibility in Section
124A to be used in any circumstances perceivable. Thus, large portions of legitimate free
speech and legitimate criticism could also be brought within the ambit of the section.
Therefore, it is submitted that it is submitted that Section 124-A of FPC is vague in character
and should hence be wholly struck down.

It is submitted that the present section 124-A is overbroad. Overboard is a recognized ground
to test the vires of legislation on the touchstone of the Constitution. 8 In Shreya Singhal,
similar phrases such as “grossly offensive” and “menacing” were struck down as being
overly broad and vague. As the Supreme Court in Shreya Singhal understood, provisions
such as these create a “chilling effect”: they blur the line between what is permitted and what
is prohibited to such an extent, that people begin to self-censor, in order to steer far clear of
that (now) invisible line9.

It is therefore contended that the language of Sec. 124-A of the Penal Code of Flavia is
obscure there could be millions of situations which could qualify as offences under Section
124-A. The section gives carte blanche to the government to prosecute anyone who holds an
opinion against it.

Curbs free speech and legitimate criticism

It is submitted that in the landmark judgment of Kedarnath v. State of Bihar 10 the Hon’ble
Supreme Court, which laid down the interpretation of sedition as it is understood today. The
provision under Section 124A of IPC is being allowed to be put to use irrespective of whether
or not the alleged act or words are, in fact, seditious acts, or words constituting a “tendency to
cause public disorder or incitement to violence”11.

It is submitted that the charges of sedition against the accused have failed to stand up to
judicial scrutiny. Charges for the offence of sedition in the present case at hand are framed
with a view to instil fear and to scuttle dissent and are in complete violation of the scope of
this case.

8
ShreyaSinghal v. Union of India, AIR 2015 SC 1523.
9
Id
10
KedarnathV. State of Bihar , AIR 1962 SC 955
11
SanskarMarathe V. State of Maharathra, Cri.PIL 3-2015
Flavia ratified the International Covenant on Civil and Political Rights (ICCPR), which sets
forth internationally recognized standards for the protection of freedom of expression12. Law
of sedition was abolished in Britain in 2009, 13 as it was found untenable in the light of the
Human Rights Act, 1998 and it is not only confusing and unnecessary, it has a chilling effect
on freedom of speech& debate.14European Convention on Human Rights (ECHR) accelerated
the process of expulsion of sedition laws from many democracies. New Zealand followed suit
after noting that in the United States, Canada and Australia, the law is practically in disuse

However, misuse of sedition law under Section 124A and arbitrary slapping of charges
continue to restrict speech in ways inconsistent with ICCPR and other leading jurisdiction.
Therefore, it in the light of above illustrated free speech acceptance across the world should
help the country of the flavia to put this section unconstitutional.

It is further submitted that SC in Balwant Singh V. State of Punjab 15, where it was held that
the mere casual raising of slogans a couple of times without the intention to incite people to
create disorder would not constitute a threat to the Government of India.
The Apex Court of India, while crystallising the relationship between a democratic society
and freedom of speech In Re Harijai Singh:
Right to be kept informed about current topics and issues is a fundamental
right as it enables them to contemplate and form broad opinion about the same
and the way in which they are being managed and administered by the
Government.16
In the light of cases mentioned, sedition law is used to threaten civilians with legal action and
to crush the opinion of anyone who dare to speak against the government by booking them in
this section. Thus, in any case Section 500-A of the flavian penal code should be struck
down.

12
Artcile 19 of International Covenant on Civil and Political Rights
13
Coroners and Justice Act, 2009
14
Liberty‘s Report Stage Briefing and Amendments on the Coroners and Justice Bill in the House of Commons
(March 2009) available at: https://www.liberty-humanrights.org.uk/sites/default/files/liberty-s-coroners-and-
justice-report-briefing-excluding-secretinquests-.pdf (last visited on Nov. 5, 2019).
15
(1995) 3 SCC 214 : AIR 1995 SC 1785
16
1996(2)ALD(Cri)906
Section 500-A imposes unreasonable and arbitrary discretion
It is humbly submitted before the Hon’ble court that freedom of thought and expression
cannot be scuttled or abridged to instil the fear of criminal prosecution in public. Section 500-
A is in contravention to Article 19 of the Flavian constitution as firstly, it gives excessive
discretionary power to the president& is arbitrary in nature secondly, Reasonable restriction
intended to safeguard the interests of the State and the general public and not of any
individual thirdly this section has a chilling effect on freedom of free speech enshrined under
Article 19 of Flavian constitution.

Excessive discretion and arbitrary

It is humbly submitted before the Hon’ble court that when discretionary power is conferred
on an administrative authority, it must be exercised according to law. “When the mode of
exercising a valid power is improper or unreasonable, there is an abuse of the power” 17. As in
the present case, clause 3 of section 500-A which states “The offence may only be prosecuted
upon the authorisation of the president of the republic” it gives excessive discretion to the
president of Flavia to decide upon whom he want to file a case and to determine what
constitute defamation and what not.

A law may not confer unfettered discretion for the restriction of freedom of expression on
those charged with its execution.18In the landmark case of Associated Provincial Picture
house Ltd. V. WednesburyCorpn.19 it was observed that it is true that discretion must be
exercise reasonably. ‘Unreasonableness’20, denotes extreme behaviour which may amount to
bad faith or an action which is perverse, irrational, or absurd conveying that “ no reasonable
man could have ever come to it”21,or the decision-maker must have taken leave of his
senses”.22

In the present case it is to be noted that that amendment not only put restriction on intentional
&untrue fact but also on unintentional &true fact, clause 1 of section 500-A which states

17
Judicial control of administrative action in India (1956) 417.
18
General comment 34
19
(1948) 1 KB 223: (1947) 2 All ER 680.
20
Judicial review of administrative action (1995) 593
21
Associated Provincial Houses Ltd. V. Wednesbury Corporation, (1948) 1 KB 223: (1947) 2 All ER 680.
22
Nottinghamshire County Council v. Secy. of State for the enviornmemt, 1986 AC 240,247: (1986) 2 WLR 1
(HL)
‘Whoever publicly* defames President of the republic shall be liable to imprisonment’. It is
strongly contented that this section not only bar untruthful statement but also a truthful
statement truth being the first basic character of justice, to restrict the principle of truth is
nothing but an irrational& arbitrary restriction on the free speech.

It is further submitted that question of intention is always an important factor in such cases 23
but clause 1 of 500-A bars unintentional statement also against the president which is clearly
contrary to the basic principle of criminal law.

The government and its departments, in administering the affairs of the country, are expected
to honour their statements of policy and intention and treat the citizen with full personal
consideration without abuse of discretion. There cannot be “Pick and Choose”, selective
applicability of government norms and unfairness, arbitrariness, or unreasonableness.24

Applying the abovementioned principles in the present case the person sitting on the post of
president has full arbitrary power to ‘Pick & Choose’ and apply the selective applicability to
decide the person for the offence of defamation of the post of president. Hence, the section is
void for having excessive discretion and arbitrariness.

Reasonable restriction intended to safeguard the interests of the State& not individual

It is humbly submitted before the Hon’ble court that  the meaning of the word ‘defamation’
mentioned therein has to be understood by applying the principle of noscitur a sociis, which
means that the words of an Act of the Parliament should be construed with reference to the
words found in immediate connection with them.25 

When one looks at the words mentioned in immediate connection with ‘defamation’ in
Article 19(2), the scope of such words and thereby the scope of the entire Article as a whole
is largely to protect the public interest and not the interests of a private individual. Therefore,
Article 19(2) cannot act as the source for Section 499 of Indian Penal Code (“IPC”) to the
extent it establishes criminal liability against an individual for defaming another individual.

“CHILLING EFFECT” ON FREE SPEECH

23
VishambharDayal v. Emperor; AIR 1941 Oudh 33
24
National building construction corpn. V. S. Raghunatham, (1998) 7 SCC 66: AIR 1998 SC 2799
25
Ahmadabad Pvt. Primary Teachers Association vs. Administrative Officers and Ors., (2004) 1 SCC 755.
It is humbly submitted before the Hon’ble court that ICCPR stress that human beings should
enjoy civil and political rights including freedom of thought 26, freedom of opinion27, and
expression28Criminal defamation has a chilling effect which leads to suppress a permissible
campaign. The threat of prosecution alone is enough to suppress the truth being published,
and also the investigating journalism which is necessary in a democracy.

The Indian Supreme Court has recognised this concept in several cases, such as R. Rajagopal
v. State of T.N29, where the Court modified the common law of civil defamation and noted
the chilling effect caused by a no-fault liability standard. Similarly, in S. Khushboo v.
Kanniammal30, the Court observed that the law “should not be used in a manner that has
chilling effects on the freedom of speech and expression”. Most famously, in the widely
celebrated judgment of Shreya Singhal v. Union of India 31, the Supreme Court invoked the
principles of “vagueness” and “overbreadth” in addition to the chilling effect to strike down
Section 66A of the IT Act in 2015

Thus, in the present case mere fact that forms of expression are considered to be insulting to a
public figure is not sufficient to justify the imposition of penalties, albeit public figures may
also benefit from the provisions of the Covenant. 32 Moreover, all public figures, including
those exercising the highest political authority such as heads of state and government, are
legitimately subject to criticism and political opposition.33

Furthermore, it is contended that since Section 500-A is violating Article 19 of the Flavian
Constitution and since not cover under the reasonable restriction & giving opportunity to the
person sitting in the post of president to such a level of basic rights violation, is arbitrary,
unconstitutional and should therefore be struck down.

26
United Nations, Intl. Covenant on Civil & Political Rights, 999 U.N.T.S. 171. It entered into force on Mar. 26,
1976
27
Id.
28
Id.
29
(1994) 6 SCC 632
30
2010(2)ACR2082(SC)
31
Supra 8
32
See communication No. 1180/2003, Bodrozic v. Serbia and Montenegro, Views adopted on 31 October 2005.
33
See communication No. 1128/2002, Marques v. Angola.