The bench noted that when Section 124A IPC was upheld in 1962, there was no coalesce between Article 14 and Article 19(1)(a).
Published Sep 12, 2023 | 5:45 PM ⚊ Updated Sep 12, 2023 | 5:45 PM
The Supreme Court of India. (Creative Commons)
The Supreme Court on Tuesday, 12 September, referred to a five-judge contrition bench a batch of 16 petitions challenging the constitutional validity of the colonial-era sedition law — Section 124A of the Indian Penal Code (IPC) — on the touchstone of the right to equality before the law (Article 14) and the right to protection of life and personal liberty (Article 21) of the Constitution.
Chief Justice DY Chandrachud, heading a bench that also comprised Justice JB Pardiwala and Justice Manoj Misra, referred the challenge to the validity of the sedition law to the five-judge Constitution bench.
The Constitution bench is also expected to look into the “correctness” of the 1962 five-judge Constitution bench judgement — which is described as the Kedar Nath Singh judgement — that upheld the validity of Section 124A of the IPC on the grounds of whether it violated Article 19(1)(a) (guaranteeing freedom of speech and expression) and Article 19(2) (imposing restrictions on free speech and expression).
The bench also noted that when the five-judge Constitution bench upheld Section 124A of the IPC in 1962 in the context of Article 19(1)(a), there was no coalesce between Article 14 and Article 19(1)(a) — which was a later development of the Indian jurisprudence expanded by subsequent judgements, in Maneka Gandhi and other cases.
The court also noted the submission by senior advocate Kapil Sibal, appearing for one of the petitioners, who said that the Constitution bench in the Kedar Nath Singh judgement of 1962 equated the government with the state — two distinct entities — and this, in itself, was sufficient to refer the challenge to the constitutional validity of the Section 124A to a Constitution bench, preferably to a seven-judge bench.
Sibal said that Section 124A speaks about the government as it says: “Whoever … attempts to excite disaffection towards, the government established by law”.
He noted that the 1962 judgement, however, equated the government with the state under Article 19(2), which says: “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the state from making any law …. (to) imposes reasonable restrictions on the exercise of the right … in the interests of [the sovereignty and integrity of India], the security of the state …”
Sibal read a portion of the Kedar Nath Singh judgement to buttress his point, that the Constitution bench in 1962 erred in equating the government with the state.
The bench further noted that the bill relating to the proposed law, which was now before a parliamentary standing committee, would have a prospective application and the cases that were registered under prevailing Section 124A would continue to survive and would be prosecuted under the prevailing sedition law.
Sibal said that the new draft law was “more draconian” than the prevailing “draconian” Section 124A that was under challenge.
Stating that the proposed new law could not be effective retrospectively, Chief Justice Chandrachud said so long as the 1962 Kedar Nath Singh judgement held the field, Section 124A was valid. “We are not planning to do away with Section 124A but modify it,” he noted.
As the bench was urged to straightaway refer the challenge to Section 124A of the IPC to a seven-judge Constitution bench, the Chief Justice said, “We cannot doubt the validity of Section 124A. Refer it to a five-judge Constitution bench that will look at it in the context of the development of the law (since 1962). Then it can be decided whether it would go to a seven-judge bench.”
The court also noted a submission that till 1973, the sedition law was not a cognizable office and became so thereafter.
Sibal told the bench, “Please note that from 1973, it was made a cognizable offence. Before that, it was not. Therefore, they started acting against the people.”
Referring the challenge to the validity of Section 124A to a five-judge constitution bench, the bench said that it was not inclined to accept the submission by Attorney General R Venkataramani and Solicitor General Tushar Mehta to keep in abeyance the adjudication of the challenge to Section 124A till the new law, that was currently before the parliamentary standing committee (PSC), was deliberated on and took shape.
Venkataramani said that the pronouncement of the top court on the validity of Section 124A of the IPC would have a bearing on the new law.
He said, “The law that the top court will lay will have a bearing on the law before Parliament.”
Giving a political twist to the argument by Sibal that the proposed new law was “more draconian” than its present version, Mehta countered, “Earlier, the government could have changed the law, the draconian law, but it missed the opportunity.”
As the solicitor general said that Section 124A was made cognizable in 1973, Chief Justice Chandrachud said he had not missed the point he was making.
Referring to the submission of the attorney general and the solicitor general to defer the reference to a five-judge constitution bench on the validity of Section 124A, Chief Justice Chandrachud said that the pendency of the bill relating to the new law would “not obviate the need to adjudicate the validity of 124A” as the new law would be effective prospectively and not retrospectively.
“The constitution point of validity of Section 124 has to be decided”, the CJI said.
On 11 May, 2022, the Supreme Court brushed aside the Centre’s opposition to putting the sedition law on hold.
The top court restrained the Centre and state governments from registering fresh cases invoking the sedition law, and put in abeyance all the proceedings pending before different courts across the country in cases rooted in offences under IPC Section 124A, including ongoing investigations.
The top court was hearing a batch of petitions by several NGOs and individuals challenging the constitutionality of IPC Section 124A.
The petitioners include NGOs Editors Guild of India, Peoples Union for Civil Liberties, Journalist Union of Assam, former Union minister Arun Shourie, the TMC’s Lok Sabha member Mahua Moitra, senior editor Patricia Mukhim, former army Major General SG Vombatkere, Anil Chamadia, Upendra Nath Dalai, Suresh Kumar alias Suresh Dravid, and Abhijit Kumar Chattopadhya.
Besides NGOs and individuals, two Andhra Pradesh broadcasting companies — Aamoda Broadcasting Company Private Limited and Shreya Broadcasting Pvt Ltd — are also petitioners. They made the Andhra Pradesh government a respondent.
