The Supreme Court on Tuesday referred a batch of pleas challenging Section 124A of the Indian Penal Code which criminalises the offence of sedition, to a Constitution bench of at least five judges.
A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala and Manoj Misra declined the Centre’s request to defer examining the validity of the sedition law as the new Bill (Bharathiya Nyaya Samhita) is pending consideration before a standing committee of Parliament.
A three-judge bench headed by CJI 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 top court said in the order.
The apex court said the reference of challenge to sedition law to a larger bench was needed as the provision was upheld by a five-judge bench in the 1962 judgment Kedar Nath Singh case.
It said, “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 at least five judges. We direct the Registry to place the papers before the Chief Justice of India so that an appropriate decision can be taken on an administrative side to form a bench of at least five judges.”
Senior advocate Kapil Sibal appearing for petitioners objected to the Centre’s request to defer the hearing since the new Bill is pending before the Parliamentary committee, saying the new Bill has a similar provision, which is “far worse”.
CJI told Attorney General R Venkataramthat 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.
Earlier, the Supreme Court had ordered that sedition law will be kept in abeyance till the government’s exercise of reviewing the law is complete.
It had asked the Central government and States not to register any cases under Section 124A.
It had added that if such cases are registered in future, the parties are at liberty to approach court and the court has to expeditiously dispose of the same.
Allowing the Central government to re-examine and reconsider the provisions of Section 124A, the apex court had said that it would be appropriate not to use the provision of law till further re-examination is over.
Earlier, the Centre had told the top court that the government cannot prevent police from registering a cognisable offence under the sedition provision, but an FIR under Section 124A would be registered only if the area Superintendent of Police (SP) is satisfied that the facts of a case involve sedition offence.
Senior advocate Kapil Sibal appearing for petitioners had told the bench that the then Prime Minister Jawaharlal Nehru had termed Section 124A as the most obnoxious provision aimed at stiffling dissent and Mahatma Gandhi had termed this as the most potent weapon to silence opposition to government.
Centre had then replied that this government was trying to do what Pandit Nehru could not do then.
In the affidavit, the Centre had said that Prime Minister Narendra Modi is of the firm view that the baggage of colonial-era laws, which outlived their utility, must be scrapped during the period of ‘Azadi Ka Marti Mahotsav’ (75 years of independence).
In that spirit, the government of India has scrapped over 1,500 outdated laws since 2014-15, it had stated.
However, before that the Central government took a stand that the 1962 verdict of the five-judge Constitution bench case which upheld the validity of the offence of sedition under Section 124A of the Indian Penal Code, is binding and continues to be a “good law and needs no reconsideration”.
It had said that the 1962 five-judge bench judgement of the top court in the Kedar Nath Singh v/s State of Bihar case which upheld the validity of Section 124A of IPC has stood the test of time and applied to date in tune with modern constitutional principles.
Various petitions were filed in the apex court challenging the constitutional validity of sedition law. The pleas were filed by former army officer Major-General SG Vombatkere (Retd), former Union minister Arun Shourie, NGO PUCL, Editors Guild of India, Journalists Patricia Mukhim, Anuradha Bhasin, Manipur-based journalist Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla from Chhattisgarh.
The then CJI NV Ramana had questioned the Central government on the requirement of sedition law even after 75 years of independence and observed that it was colonial law that was used against freedom fighters.
While pointing out that sedition law was used against freedom fighters like Mahatma Gandhi and Bal Gangadhar Tilak, the apex court had asked the Centre, why it couldn’t be repealed. It observed that the Centre has repealed many stale laws and enquired why the government is not looking into repealing Section 124A of the IPC.
It further said that the court was concerned about the misuse of such laws.
CJI had said, “use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself”.
Section 124-A (sedition) under the IPC is a non-bailable provision.