SC to examine whether Constitution Bench should hear sedition challenge

The Bench scheduled a hearing on the question of reference on May 10.

May 05, 2022 04:41 pm | Updated May 06, 2022 12:02 am IST - NEW DELHI

A view of the Supreme Court. File

A view of the Supreme Court. File | Photo Credit: R.V. Moorthy

A 60-year-old Constitution Bench judgment validating sedition law led a three-judge Bench headed by Chief Justice of India N.V. Ramana on Thursday to pause to examine if petitions challenging the colonial provision should be referred to a larger Bench of five or seven judges of the court.

The 1962 judgment in Kedar Nath versus State of Bihar delivered by a Bench of five judges of the Supreme Court had upheld Section 124A (sedition) of the Indian Penal Code while restricting its applicability to “activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.

A judicial law laid down by the Supreme Court cannot be countered by a numerically inferior Bench.

The Chief Justice Bench, also comprising Justices Surya Kant and Hima Kohli, scheduled a hearing on the question of reference on May 10 (Tuesday) at 2 p.m. The court warned lawyers against seeking adjournment on that day.

Kedar Nath judgment

“First we have to determine whether we should sit in a composition of three judges or five or seven before going into the question of legality of Section 124A... Assuming the CJI decides to constitute a larger Bench, then that Bench can straightaway take up the question of Section 124A. Such a larger Bench, if formed, can directly hear on merits whether sedition should continue or be struck down in the light of subsequent developments in law post the Kedar Nath judgment and global opinions on sedition,” Justice Kant addressed the lawyers.

Attorney General of India K.K. Venugopal, who has been asked by the court to assist in the capacity of his constitutional office, however, said there was no need to refer the petitions to a larger Bench.

“The Kedar Nath judgment is the last word on the issue of sedition law. It has balanced well the right of security of state and the right of free speech,” Mr. Venugopal gave his prima facie opinion.

He said Section 124A had to be retained in the penal code.

‘Misuse should be controlled’

“However, the misuse of sedition law should be controlled. This court can lay down certain guidelines in the implementation of the law... Recently, sedition has been invoked in Maharashtra even for chanting the Hanuman Chalisa...” Mr. Venugopal submitted.

Senior advocate Kapil Sibal and advocate Vipin Nair also argued that there was no need to refer the case to a larger Bench because of the Kedar Nath judgment.

He submitted that the Kedar Nath judgment was limited to an examination of how sedition could be invoked by the government to silence free speech under Article 19(1)(a) of the Constitution. It had not examined how sedition could be misused by the government to cripple right to life and dignity and right to equal treatment under Articles 21 and 14, respectively. Mr. Sibal said the three-judge Bench could go ahead and decide their petitions without touching on the Kedar Nath verdict.

He said sedition was now being invoked even against the right to protest. “Our colonial masters have gone. We are the masters of our own destiny. There has been a sea change in the law post Kedar Nath. We are the masters of our democracy. We are the masters of the government. We are not subjects of the Crown. The government serves us. We can change our government every five years,” Mr. Sibal argued.

Advocate Kaleeswaram Raj, for senior journalist Shashi Kumar, said the fact that the Supreme Court had upheld adultery in 1954 did not stop it from decriminalising the offence in 2018.

“Despite the Kedar Nath judgment, we can still proceed. The 1962 verdict has ultimately upheld Section 124A while watering it down... But Section 124A is, we argue, per se unconstitutional. It cannot be used to silence dissent and take away personal liberty,” Mr. Sibal contended.

But Justice Kant invoked judicial propriety. “Subsequent changes in law does not give a three-judge Bench the right to ignore an earlier five-judge Bench decision on the same issue,” Justice Kant said. The question of reference could not be bypassed.

Solicitor General Tushar Mehta, appearing for the Centre, agreed with the court that the point of reference to a larger Bench needed to be heard and decided first before going into the merits of the case.

Mr. Mehta was given time till Monday to file a detailed counter-affidavit clarifying the government’s stand on whether sedition should be struck down or not.

“But tell us your stand... Should it (Section 124A) continue or be withdrawn?” Chief Justice Ramana asked him during the hearing.

But Mr. Mehta refrained from giving a clear oral reply, saying the issue had to be debated.

“It would be inappropriate on my part to say something without first putting the government’s stand on record... The affidavit of the government, which is pending with the competent authority, would be holistic,” the Solicitor General said.

He, however, said the “nature, repercussions and consequences” of withdrawing the sedition law required serious thought.

The Kedar Nath judgment, while upholding the sedition provision, had held that freedoms had to guarded against becoming “a licence for vilification and condemnation of the government established by law in words which incite violence and public disorder”.

“A citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder,” the 1962 verdict had reasoned.

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