Supreme Court Moves Sedition Law Challenge to Larger Bench Amidst New Legislation Proposals
In a pivotal decision, the Supreme Court, on September 12, has referred the petitions challenging the sedition law, specifically Section 124A of the Indian Penal Code (IPC), to a bench comprising at least five judges. This move was initiated by a three-judge bench led by Chief Justice of India (CJI) DY Chandrachud, who emphasized the necessity of this referral due to the provision being upheld by a five-judge bench in the 1962 judgment, Kedar Nath Singh v. State of Bihar. The bench, which also included Justices JB Pardiwala and Manoj Misra, remarked,
“Being a smaller bench, it may not be appropriate for it to doubt or overrule Kedar Nath.”
The bench further elucidated that the Kedar Nath judgment was based on a then-narrow understanding of fundamental rights, focusing primarily on Article 19. However, subsequent judgments have expanded this understanding, emphasizing the harmonious operation of Articles 14, 19, and 21.
In a significant courtroom exchange, the Central Government’s top law officers, Attorney General R Venkataramani and Solicitor General Tushar Mehta, requested a deferment of the hearing. This was due to the government’s proposal to replace the IPC with a new code named the Bharatiya Nyaya Sanhita. However, the bench declined this request, stating,
“We decline the request of Attorney General and Solicitor General to defer the hearing the challenge to constitutional validity of 124A for more than one reason… 124A continues to be in 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 and the challenge needs to be assessed thus.”
Senior Advocate Kapil Sibal, representing the petitioners, argued for the matter to be directly referred to a seven-judge bench, expressing concerns over the potential for a five-judge bench to later decide on a referral to a seven-judge bench. He stated,
“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.”
The bench also highlighted the need to re-examine the Kedar Nath Singh judgment, with Sibal emphasizing the distinction between “State” and “government”, noting,
“Disaffection towards government is not disaffection to state…the state is not government and the government is not state.”
CJI Chandrachud also made a noteworthy observation regarding the evolution of the sedition law, stating,
“So in colonial rule, it was non-cognisable and we made it cognisable!“
The petitions, filed by various journalists and activists, challenge the constitutional validity of Section 124A of the IPC, alleging its misuse by governments to target critics and dissenters. Notably, in July 2021, then CJI NV Ramana had critically remarked,
“Is it still necessary to retain this colonial law which the British used to suppress Gandhi, Tilak etc., even after 75 years of independence?“
He further added,
“If we go see the history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item, using it to cut the entire forest instead of a tree. That’s the effect of this provision.“
The ongoing debate surrounding the sedition law, especially in light of the proposed new legislation, underscores the importance of re-evaluating colonial-era laws in contemporary India.
