'My Stand May Be Different From Govt": Attorney General Says Guidelines Needed To Prevent Misuse Of Sedition Law

The Attorney General for India KK Venugopal on Thursday told the Supreme Court that there was no need to scrap Section 124A of the Indian Penal Code, which criminalizes sedition, and added that guidelines can be framed to prevent misuse of the provision.

The AG said that there was no need to reconsider the 1962 judgment in the Kedar Nath case - which retained Section 124A by reading it down- as it was a "well reasoned decision which balanced free speech and national security".

A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli was hearing a batch of petitions filed by journalists, activists, NGOs and political leaders challenging the constitutional validity of Section 124A IPC.

When the matter was taken, Solicitor General of India Tushar Mehta sought for time for filing the counter-affidavit on behalf of the Union Government. The SG said that though the draft reply has been prepared from the lawyers' side, it is awaiting the approval of the "competent authority".

The Attorney General however said that he is ready to argue the matter. "Your lordships had issued notice to me. I am ready", the AG said(the Court had sought the assistance of the Attorney General in the matter while issuing notice in the petition). 

"The learned AG will assist in the capacity of the Attorney General. I appear for the Central Government and the Central Government will have to file its counter", the Solicitor General said.

"Notice has been issued to me as the AG", Venugopal submitted.

"But the SG is seeking adjournment", the CJI said.

"My stand may be different", the AG said.

"The AG is not aware of the Centre's stand", the SG said.

"Let the AG submit. I don't want to give an impression he wasn't given a chance to argue", the CJI said.

When the bench sought the AG's view of the matter, he said : "Kedar Nath is a well reasoned judgement balancing free speech and national security. So the section will have to be kept and Kedarnath will remain in force. Misuse has to be controlled".

The AG also made a reference to the recent FIRs for sedition registered by Maharashtra police against opposition leaders Navneet Rana and Ravi Rana for the row over Hanuman Chalisa chanting.

"Your lordships know what is happening in the country. Yesterday, somebody was detained under this section just because they wanted to chant Hanuman Chalisa. So guidelines have to be there, to prevent misuse. These things are to be considered, guidelines need to be laid- it would include what's permissible & not".

"It has been held that if law which is valid but it has been misused, the law may not become invalid. The Question is what is so abhorrent in 124A which merely protects state's & citizen's security from public disorder. Kedar Nath is valid & there's no ground for referring it", the AG continued.

Although the bench asked if the matter can be heard even without a counter-affidavit of the Centre as only the examination of the legal provision was involved, the Solicitor General submitted that the counter-affidavit was necessary.

"It would be inappropriate for me to argue on my part without the central government on record", the SG said.

"What is the prima facie view of the government? You want to continue(the section)", CJI Ramana asked the SG.

"That issue will have to be debated between the government and the advisors", the SG said. 

The SG said that the reply of the Centre will be "an independent stand of the executive after taking a holistic view of all considerations".

The bench asked if a reference to larger bench would be necessary as Kedar Nath is a 5-judge bench decision. Senior Advocate Kapil Sibal, appearing in the lead petition, submitted that a reference to a larger bench may not be necessary. He submitted that Kedar Nath was decided in the AK Gopalan era (when the judgment in AK Gopalan case on Article 21 held the field, in which all fundamental rights were seen as separate silos).Sibal submitted that after the RC Copper decision, there has been a "sea-change" in the fundamental rights jurisprudence, where rights are seen as interlinked forming part of a single fabric.

Sibal insisted that the 3-judge bench can go into the issue ignoring Kedar Nath, in the light of the subsequent developments in the fundamental rights jurisprudence. He said that his petition has not sought for a reconsideration of Kedar Nath.

However, the bench asked if a 3-judge bench can ignore a 5-judge bench and whether judicial propriety demanded the reference of the matter to a larger bench.

The bench posted the matter to May 10 to hear preliminary arguments on the need for reference.

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