Supreme Court Refers Sedition Law Challenge To Larger Bench, Says New Bill To Replace IPC Can't Affect Past Cases

The Supreme Court on Tuesday (September 12) referred the petitions challenging the sedition law (Section 124A of the Indian Penal Code) to a bench of at least 5-judges.

A three-judge bench led by Chief Justice of India DY Chandrachud said that a reference to a larger bench was needed as the provision was upheld by a 5-judge bench in the 1962 judgment Kedar Nath Singh v. State of Bihar. Being a smaller bench, it may not be appropriate for it to doubt or overrule Kedar Nath, said the bench led by Chief Justice of India.

The bench, also comprising Justices JB Pardiwala and Manoj Misra, stated in its order that that Kedar Nath was decided on the basis of the narrow understanding of the fundamental rights which was prevalent then. Also, Kedar Nath examined the issue only from the angle of Article 19, as per the understanding of Constitutional law prevalent then that the fundamental rights operate in distinct silos. Later, this understanding of law changed in view of subsequent judgments which held that Articles 14, 19 and 21 operate in harmony.

The bench also turned down the request made by the Central Government to defer the hearing due to the introduction of a new bill in the Parliament to replace the Indian Penal Code. The bench said that even if the new Bill becomes a law, the past cases under Section 124A IPC will not be affected as the new penal law can only apply prospectively. Therefore, the new law will not obviate the need for a constitutional adjudication on the validity of the provision, the bench stated in the order.

"In our view, the appropriate course is to direct the papers to be placed before the Chief Justice of India to consider that the batch of cases can be heard by a bench of atleast 5 judges. We direct the registry to place the papers before CJI so that an appropriate decision can be taken on an administrative side to form a bench of atleast 5 judges", the bench noted in the order.

Court room exchange

During the hearing, CJI said that a 5-judge bench can say that Kedar Nath is no longer a binding precedent in view of the subsequent judgments which expanded the understanding of fundamental rights and can remit the matter back to the 3-judge bench. The 5-judge bench also has the option to make a further reference to a 7-judge bench to reconsider Kedar Nath Singh, added CJI DY Chandrachud.

Senior Advocate Kapil Sibal, appearing for the petitioners, requested that the matter be referred straightaway to a 7-judge bench.

"Your lordships may refer to a 7 judge bench because ultimately the 124A constitutionality has to be struck down...I don't want a situation where the 5 judge bench hears it and then decides to refer to a 7 judge bench..", Sibal said.

Senior Advocate Arvind Datar, also appearing for petitioners, said that as per the dictum in the Central Dawoodi Bohra case, the bench led by Chief Justice of India can make a direct reference to a 7-judge bench. Datar pointed out that in the KS Puttaswamy case, the first bench had made a direct reference to the 9-judge bench.

Centre requests Court to defer hearing citing the new bill; Bench says new law will not affect past cases

When the matter was taken, Attorney General for India R Venkataramani informed the bench about the new bill (Bharathiya Nyaya Samhita) which has been introduced in the Lok Sabha to replace the Indian Penal Code. The AG said that the new Bill, which does not include the offence of sedition, has been referred to a Parliamentary Standing Committee and requested the bench to defer the hearing to await the legislative outcome.  Sibal, appearing for the petitioners, immediately interjected to say that the new Bill has a similar provision, which is "far worse". Datar also agreed with this submission by saying, "sedition exists in the new Bill, just that they have given a new label".

Solicitor General of India Tushar Mehta also backed the AG's request to defer the hearing. SG referred to the previous affidavit filed by the Central Government in May 2022 which stated that the provision was being re-examined at the highest level.

CJI Chandrachud stated that even if the new Bill becomes a law, it can apply only prospectively and the past cases will be prosecuted as per the IPC. Therefore, the challenge to Section 124A IPC will continue to be relevant regardless of the new law.

"Assuming that law comes into force, it'll cover future prosecutions...so far as prosecutions are concerning 124A, they'll continue", CJI said. Even though Section 124A IPC is now kept in abeyance due to the interim order passed by the Supreme Court in May 2022, CJI said, "the question of law has to be answered".

"The new law cannot have retrospective effect. So we will have to examine 124A", CJI stated.

Bench examines Kedar Nath

At this juncture, the bench stated that it wanted to examine the Kedar Nath Singh judgment. Sibal, after reading the relevant paragraphs of the Kedar Nath Singh judgment, said that the heart of the issue was that it conflated "State" with "government".

"Disaffection towards government is not disaffection to state...the state is not government and the government is not state", Sibal stated. "When 124A was framed, there was no difference between State and government", Datar supplemented referring to the colonial origin of the provision.

During the hearing, CJI Chandrachud was also amused to note that when the provision was originally enacted, it was a non-cognizable offence, but it was made a cognizable offence by the Parliament in 1973 when the new Code of Criminal Procedure was enacted.

"So in colonial rule, it was non cognisable and we made it cognisable!", CJI said.

Defending Kedar Nath, AG said that it applied the principles of proportionality. However, CJI pointed out that when Kedar Nath judgment was delivered, the jurisprudence as laid down in AK Gopalan case, which propounded a narrow understanding of Article 21, held the field. CJI also pointed out that Kedar Nath did not consider the aspect of the jurisprudence of reasonableness under Article 14, which developed subsequently.

Senior Advocate Gopal Sankaranarayanan and Advocate Kaleeswaram Raj also made submissions for the petitioners. Sankaranarayanan pointed out that the Lahore High Court recently struck down Section 124A of the Pakistan Penal Code, which is similarly worded as the provision in the IPC. Kaleeswaram Raj said that since Section 124A was a pre-Constitutional provision, it does not carry the presumption of constitutionality unlike a post-Constitutional provision.

Former Union Minister Arun Shourie, one of the petitioners in the case, also addressed the bench as a party-in-person.

The bench was considering a batch of petitions filed by various journalist and activists challenging the constitutional validity of Section 124A of the IPC. The petitioners, among other things, raised grave concerns at the abuse of the provision by the governments to target critics and dissenters. 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.

While issuing notice on the petitions in July 2021, the then CJI NV Ramana had orally made critical remarks against the provision.

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