SC refers petitions challenging validity of sedition law to five-judge Constitution Bench
Satya Prakash
Tribune News Service
New Delhi, September 12
Declining the Centre’s request to defer hearing, the Supreme Court on Tuesday referred petitions challenging the validity of colonial-era sedition law—Section 124-A of the Indian Penal Code – to a five-judge Constitution Bench.
A three-judge Bench led by CJI DY Chandrachud said the five-judge Constitution Bench would consider if the issue needed to be further referred to a seven-judge Constitution Bench in view of the fact that a five-judge Constitution Bench had in Kedar Nath Singh versus State of Bihar (1962) upheld the validity of Section 124-A of the IPC.
Being a smaller Bench of three judges, it may not be appropriate for it to doubt or overrule the ruling of a five-judge Bench in Kedar Nath Singh’s case, the CJI-led Bench said.
Noting that Kedar Nath Singh’s case was decided on the basis of the narrow understanding of fundamental rights prevalent at that time that fundamental rights operated in distinct silos, the Bench said the issue was examined only from the angle of Article 19 (fundamental right to various freedoms). Later, this understanding of fundamental rights changed in view of subsequent verdicts that ruled Articles 14, 19 and 21 operated in harmony.
The top court turned down the Centre’s request to defer the reference to a larger bench as Parliament is in the process of re-enacting the provisions of the penal code.
Attorney General R Venkataramani and Solicitor General Tushar Mehta urged the Bench to defer the hearing as the Centre proposed to replace the IPC with the Bharatiya Nyaya Sanhita that has already been sent to a parliamentary panel for scrutiny and suggestions.
On behalf of the petitioners, senior advocates Kapil Sibal and Arvind Datar submitted that if the CJI wanted he could directly refer the matter to a seven-judge Bench.
They said the new Bill has a similar and “far worse” provision than sedition. “Sedition exists in the new Bill, just that they have given a new label,” Datar Submitted.
“We decline the request of the Attorney General and Solicitor General to defer the hearing on the challenge to the constitutional validity of Section 124A for more than one reason… Section 124A continues to be on the statute book and the new law in a penal statute will have only prospective effect and that validity of the prosecution remains till 124A remains,” the CJI said, noting that the challenge needed to be examined.
The Bench, which also included Justice JB Pardiwala and Justice Manoj Misra, asked the top court’s Registry to place the matter before the CJI for an appropriate decision on the administrative side for constituting a bench of the “strength of at least five judges”.
In a historic move aimed at overhauling colonial-era criminal laws, the Centre had on August 11 introduced three bills in the Lok Sabha to replace the IPC, Criminal Procedure Code (CrPC) and the Indian Evidence Act by the Bharatiya Nyaya Sanhita, the Bharatiya Nagrik Suraksha Sanhita and Bharatiya Sakshya Bill, respectively. The Bharatiya Nyaya Sanhita proposed to repeal sedition law and to introduce a new provision with a wider definition of the offence.
The Supreme Court on May 11, 2022 put sedition law on hold and asked the Centre and states not to register any cases under Section 124A of the IPC pending an exercise to review the colonial law.
“If any fresh case is filed under Section 124A IPC, the accused can approach the court concerned for reliefs,” it had said, adding its direction shall remain in force until further orders.
Section 124A says a person commits the crime of sedition, if he/she brings or attempts to bring in hatred or contempt, or excites or attempts to excite disaffection towards, the government established by law in India. It can be by words, either spoken or written, or by signs, or by visible representation, or otherwise. It prescribes the maximum punishment of life imprisonment.
The law on sedition was not there in the original IPC, which came into force in 1862. It was added to the Code in 1870 and its ambit was expanded in 1898 with a view to crush the freedom movement.
While upholding the validity of Section 124A of IPC, a five-judge Constitution Bench had in Kedarnath Singh’s case (1962) restricted the scope of sedition law by prescribing certain safeguards. Sedition was made a cognizable offence in 1973.
In July 2021, the top court had asked the Attorney General to clarify if this law was still needed after 75 years of independence. The sedition law was used by the British against Mahatma Gandhi, Bal Gangadhar Tilak and was now being misused with no accountability from the government, it had noted.
“The government has repealed a number of laws…I don’t know why you aren’t looking into it,” it had asked.
Those who have challenged the validity of Section 124A IPC included former Army Major-General SG Vombatkere, Editors Guild of India, Former Union Minister Arun Shourie, TMC MP Mahua Moitra, journalist Anil Chamadia, Peoples Union for Civil Liberties, journalists Patricia Mukhim and Anuradha Bhasin, and Journalist Union of Assam etc., are some of the petitioners. On Tuesday, Shourie addressed the Bench as a party-in-person.
