Should Pleas Against Sedition Law Be Referred to a Larger Bench? SC to Examine

Senior Advocate Kapil Sibal said “even without overruling Kedarnath (judgment), section 124A can be struck down".

A Chief Justice of India (CJI)-led bench of the Supreme Court on Thursday, 5 May, asked the petitioners as well as the central government to give their written submissions on whether the petitions challenging constitutionality of the sedition law should be referred to a larger bench.

Both sides have been asked to give their written submissions by Saturday morning and the matter has been posted for further hearing on Tuesday at 2 pm.

The petitioners in this case include Major General SG Vombatkere, the Editors Guild of India, as well as former Union Minister Arun Shourie (among others).

An apex court bench comprising of CJI NV Ramana and Justices Hima Kohli and Surya Kant is presently hearing a batch of petitions challenging the constitutional validity of the offence of sedition (Section 124A of the Indian Penal Code).

However, the court wondered if they can proceed with the case without reference of the Kedarnath Singh judgment – which had said that Section 124A of the IPC was constitutional and could remain a part of the law – to a larger bench, as “each one of you says Kedarnath needs to be overruled.”

In response to this, Senior Advocate Kapil Sibal, representing the petitioners, said that they will not be arguing whether Kedarnath Singh judgment needs to be overruled. And in case the Court does not agree with them on whether the sedition law can still be argued against, without getting into the Kedarnath judgment, then the matter can be referred to a seven-judge bench.

This is because the Kedarnath judgment was passed by a five-judge bench of the apex court. And in order to reconsider it, the apex court opined, the judgment has to be referred to a larger (seven-judge bench).

WHAT DID SIBAL ARGUE?

Pointing out that “even without overruling Kedarnath, Section 124A can be struck down after observing the sea change in law,” Sibal alleged that the case confuses between the state and the government.

“124A deals with the government and Article 19 deals with state. Kedarnath did this very mistake. It confused between state and government.”

Article 19 of the Constitution deals with Freedom of Speech and Expression. 19(2) says:

Nothing in sub clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

In Kedar Nath Singh, the fundamental right in question was considered to be the right to freedom of speech under Article 19(1)(a). To assess whether the offence of sedition was constitutional, therefore, the court looked to the legislature's ability to impose reasonable restrictions on this right under Article 19(2).

Given that Article 19(2) allowed reasonable restrictions in the interest of public order, the court held that Section 124A could be constitutional if it were interpreted to mean that it can only be invoked where there was a threat to public order, through the incitement of violence.

Sibal, therefore, pointed out on Thursday: “We are not challenging power of government to frame law to restrict freedom of speech, we’re challenging right of government to restrict from holding protest against government.”

WHAT DID THE AG SAY?

Attorney General KK Venugopal, however, was of the opinion that Kedarnath is a valid judgment and thus there is no need for the matter to be referred to a larger bench.

“For me Kedarnath is the last word on the subject,” Venugopal said.

“Kedarnath followed the Federal court judgment and judgments of federal court are to be treated as judgments of the Supreme court of India.”

He also said that misuse of Section 124A has been controlled.

The Attorney General, however, has not been tasked with representing the Centre in this case. Only the Solicitor General (SG) is.

AND WHAT ABOUT THE SG?

The SG, meanwhile, sought time from the apex court to bring the central government’s stand on record.

Previously, on Wednesday, the central government had asked for a week’s time to file a reply to the petitions, citing pending approval from the competent authority as the reason for the delay. This was the Centre’s second request for an extension of the period to file a response, and according to the SG, the delay was due to:

• “Draft reply prepared by us as lawyers level is awaiting approval by competent authority”

• “Fresh matters have been filed since the last occasion.”