Sep 13 – The Supreme Court on Tuesday directed petitions contesting the constitutionality of a colonial-era sedition law—Section 124-A of the Indian Penal Code—to a five-judge Constitution Bench after rejecting the Centre’s appeal to postpone hearings.
In light of the fact that a five-judge Constitution Bench had upheld the validity of Section 124-A of the IPC in Kedar Nath Singh versus State of Bihar (1962), a three-judge bench led by Chief Justice DY Chandrachud stated that the five-judge Constitution Bench would consider whether the matter needed to be further referred to a seven-judge Constitution Bench.
The CJI-led Bench stated that because it is a smaller Bench of three judges, it might not be suitable for it to contest or overturn the decision of a five-judge Bench in Kedar Nath Singh’s case.
The Bench stated that the problem was only looked at from the perspective of Article 19 (basic right to varied freedoms), noting that Kedar Nath Singh’s case was resolved on the basis of the limited concept of fundamental rights that was common at the time and that fundamental rights operated in independent silos. This understanding of fundamental rights later evolved in light of subsequent judgements holding that Articles 14, 19, and 21 functioned in unison.
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The Centre asked the highest court to postpone the referral to a larger bench while Parliament was re-enacting the penal code’s provisions, but the motion was denied.
The Centre recommended replacing the IPC with the Bharatiya Nyaya Sanhita, which has already been forwarded to a parliamentary body for review and suggestions, and Attorney General R Venkataramani and Solicitor General Tushar Mehta pleaded with the Bench to postpone the hearing.
Senior solicitors Kapil Sibal and Arvind Datar made the argument on behalf of the petitioners that the CJI might refer the case directly to a seven-judge Bench if he so desired.
They said that a similar and “far worse” provision than sedition is present in the proposed bill. Sedition is still present in the revised Bill; it only has a different label, according to Datar’s submission.
“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 Centre had on August 11 introduced three bills in the Lok Sabha to replace the Indian Penal Code (IPC), Criminal Procedure Code (CrPC), and the Indian Evidence Act, respectively. These bills are the Bharatiya Nyaya Sanhita, Bharatiya Nagrik Suraksha Sanhita, and Bharatiya Sakshya Bill. The Bharatiya Nyaya Sanhita recommended repealing the sedition legislation and replacing it with a new provision that defined the charge more broadly.
On May 11, 2022, the Supreme Court suspended the application of the Sedition Act and instructed the federal government and the states not to file any proceedings under Section 124A of the IPC until a review of colonial law had been completed.
It had stated that the accused might seek relief from the court in question if a new case under Section 124A IPC were filed, and that its directive would be in effect until further orders.
According to Section 124A, someone commits sedition if they incite or try to incite hatred or contempt towards the legal government in India, or if they try to incite disaffection with it. It can be communicated verbally or in writing, visually, by signs, or in any other way. It calls for a life sentence as the worst penalty possible.
The original IPC, which went into effect in 1862, did not have a prohibition against sedition. In order to put an end to the freedom movement, it was added to the Code in 1870, and its scope was increased in 1898.
In the Kedarnath Singh case (1962), a five-judge Constitution Bench limited the applicability of the sedition statute by establishing a number of safeguards while confirming the legality of Section 124A of the IPC. In 1973, sedition became a punishable offence.
The highest court had questioned the Attorney General in July 2021 about whether this law was still necessary after 75 years of independence. It had been highlighted that the British had exploited the sedition statute against Mahatma Gandhi and Bal Gangadhar Tilak, and that it was currently being abused without any oversight from the government.
“The government has repealed a number of laws…I don’t know why you aren’t looking into it,” it had asked.
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 are a few of the petitioners who have contested the legality of Section 124A IPC. Shourie spoke to the Bench on Tuesday in person as a party.
