Kedar Nath Judgment Confused Between State & Government : Sibal Tells Supreme Court In Challenge Against Sedition Law

The 1962 Constitution Bench judgment in the case Kedar Nath versus State of Bihar which upheld Section 124A of the Indian Penal Code confused between the State and the Government, submitted Senior Advocate Kapil Sibal before the Supreme Court on Tuesday in the cases challenging the constitutional validity of sedition law.

"Kedar Nath is based on Federal Court judgments, which are pre-constitution. Pre-constitution, there is no difference between Government and the State. After we became a Republic, there is a difference between the Government and the State", Sibal submitted.

The Kedar Nath decision had stated that "Government established by law" is the visible symbol of the State. The very existence of the State will be in jeopardy if theGovernment established by law is subverted. Hence, the continued existence of the Government established by law is an essential condition of the stability of the State".

As regards the Centre's stand that the provision needs to be re-examined in the light of keeping a balance between free speech and the sovereignty and integrity of the country, Sibal submitted that the Section does not deal with sovereignty and integrity of the nation.

"124A has no mention of sovereignty and integrity of the nation. This law penalises hatred or disaffection against the govt. This law is a pre-constitutional law where state and the government was one", Sibal said.

Sibal added that Mahatma Gandhi also said that there is a difference between the Government and the State. He also read out the following statement made by Gandhi at sedition trial against him :

"Section 124A IPC is the Prince among political sections of the Indian Penal Code, designed to suppress the liberty of the citizens.Affection cannot be manufactured or regulated by law. If one has no affection for a person or a system one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence. But the section under which Mr. Banker and I have been charged is one under which mere promotion of disaffection is a crime … I have studied some of the cases tried under it [Section 124A] and I know that some of the most loved of Indian patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section …"

Sibal also quoted Nehru as having said "This provision is obnoxious. The sooner we get rid of it, better. It should have no place".

The Solicitor General at this juncture said that the Government is trying to do what Nehru could not do.

Sibal also objected to the Centre's stand that till it reviews the provision, the Court should defer the hearing.

"The exercise of this Court cannot be stopped merely because the legislature will take time to reconsider for 6 months or 1 year. I take strong objection to Centre's affidavit. It is for judiciary to examine the constitutionality of law", he said. There should be no registration of FIRs under this section during this period, he urged.

A bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli adjourned the hearing till tomorrow asking the Centre if the registration of cases under Section 124A IPC could be suspended till the Government completes its review process.