A three-judge bench of the Supreme Court, comprising the Chief Justice of India, N.V. Ramana, and Justices Surya Kant and Hima Kohli, on Thursday, wanted to know from the senior counsel whether it could examine the validity of Section 124A of the Indian Penal Code[IPC] which deals with the offence of sedition, when a five-judge bench in the Kedar Nath Singh vs. State of Bihar (1962)had already upheld the validity of this law. It thus adjourned the matter to Tuesday afternoon directing the petitioners, the Attorney General[AG] for India and the Union government to file their written submissions before the next hearing as to whether or not the matter should be referred to a larger bench of five or seven judges. The bench has made it clear that it would first decide the issue of referral to a larger bench, before hearing arguments on whether the verdict in Kedar Nath Singh should be reconsidered.
Kapil Sibal’s submissions
Senior advocate Kapil Sibal, who was appearing for the group of petitioners, sought to contend that the matter did not require reference to a larger bench because the judgment in the Kedar Nath Singh case was passed in the A.K. Gopalan era (1950-1970). In the A.K. Gopalan era, each of the fundamental rights was considered by the Supreme Court to be in silos. Sibal added that after the R.C. Cooper judgment (better known as bank nationalisation case) (1970) there had been a sea-change in the jurisprudence regarding the inter-relationship between Articles 14, 19, and 21.
He submitted that the sedition law does not meet the test of Articles 14 and 21 of the Constitution, and in the Kedar Nath Singh case, it was not examined on the touchstones of Articles 14 and 21, and hence, there was no need to send the matter to a larger bench. Sibal implied that a reference to a larger bench would be justified only if there had been no change in the circumstances when the Supreme Court decided the Kedar Nath Singh case. Sibal suggested that the Court in subsequent cases, including the Puttaswamy case (right to privacy), had laid down specific tests through larger benches and therefore, the validity of Section 124A IPC could be tested by a smaller bench.
Taking the change in jurisprudence since 1970 as a “change in circumstance”, Sibal pointed to the other flaw in the Kedar Nath Singh judgment, which failed to note the distinction between the state and the Government. According to him, Section 124A Indian Penal Code, dealt with the Government’s power to restrict seditious speech, whereas Article 19(1)(a) guaranteed freedom of expression, and Article 19(2) barred the State from restricting the right except under specified grounds. This subtle distinction between “state” and “government” by Sibal, however, failed to persuade many legal observers, who asked the word “state” is not defined under Article 12, to include “government”. Sibal, relying on Mahatma Gandhi’s famous observation that he had a right to create disaffection against the government, distinguished it from the right of the State to restrict freedom of expression, as guaranteed under Article 19(1)(a). The judgment in Kedar Nath Singh blurred this distinction, he suggested.
Justice Kant responded to Sibal saying that each of the petitions has made a prayer seeking reconsideration of the Kedar Nath Singh judgment. Sibal, however, sought to submit that unlike other petitioners, he had not argued for a reconsideration of the Kedar Nath Singh judgment, and other petitioners too are not pressing their prayer for reconsideration of the judgment, which was only meant as an alternative.
At this point, Justice Kant asked whether there was a precedent in the history of the Supreme Court when a three-judge bench struck down a provision which was earlier upheld by a larger bench. At this, senior advocate Gopal Sankarnarayan said there is indeed a precedent when the two-judge bench in the Lilly Thomas case struck down Section 8(4) of the Representation of People’s Act despite the fact that the constitution bench in K.Prabhakaran vs P.Jayarajan had upheld its validity.
Justice Kant after conferring with the other two judges opined that, if the CJI decides to constitute a larger bench, then we need not argue on whether it should go to a larger bench. Sibal agreed to it. However, the bench eventually decided to hear the arguments on whether the matter should be referred to a larger bench.
The bench also did not appreciate the time being taken by the Central Government in responding to a batch of petitions challenging the sedition law. The CJI told Solicitor General[SG] Tushar Mehta that the notice was issued nine months back, yet no reply was filed. The validity of sedition is a legal issue and it does not require a counter-affidavit, said CJI to SG Mehta as the latter sought more time to put the Centre’s stand on record. Mehta sought to justify more time to file the reply by stating that the draft affidavit has been prepared at the level of advocates, and the same is pending consideration of the “competent authority”. He also added that some fresh petitions were also filed and served upon him. The submission did not find favour with Justice Kohli who remarked that the filing of the fresh petition did not matter and that she did not understand the hesitation on the part of SG Mehta to argue the matter. When CJI sought to know the prima facie view of the Union Governemnt on Section 124A, Mehta responded by saying that he has to discuss it with the government and seek their opinion.
Attorney General for India’s submission
Attorney General for India, K.K. Venugopal who was asked by the Supreme Court to assist the court, questioned the maintainability of the petitions seeking reconsideration of the Kedar Nath Singh judgment. He said that the Kedar Nath Singh judgment upholding the validity of sedition is well balanced and does not call for reconsideration. He however urged the Court to put in place guidelines on this section – what is permissible and what is impermissible and what can come under sedition. He highlighted the recent instance of the Maharashtra government slapping sedition charges on lawmakers Navneet Rana and Ravi Rana merely because they wanted to read Hanuman Chalisa in front of the Maharashtra Chief Minister’s residence.
“Section 124A is not a bad law”, the AG said and challenged the petitioners to show that the section is invalid. Like Sibal, the AG too doubted the need for constituting a larger bench, though for different reasons than the ones offered by Sibal. The AG made it clear the notice to him has been issued in his individual capacity, and his stand may be different from that of the Government. Tracing the origins of the Kedar Nath Singh judgment, the AG opined that it is the last word on sedition. He recalled that the Federal Court had opined that only in cases where the speech, protest, or rally -as the case may be-results in public disorder and there is incitement to violence, then the law of sedition will kick in. The Federal Court’s opinion was in contrast to that of the Privy Council which had held earlier that if the speech is against the Government, irrespective of the fact whether it was capable of inciting violence, Section 124A would be attracted. He emphasised that the Supreme Court in Kedar Nath Singh judgment opted for the opinion rendered by the Federal Court, which he said is binding under Article 374(2) of the Constitution.
Venugopal suggested that Kedar Nath Sing was decided on a very narrow issue, that is, whether Section 124A would be attracted in cases where speech led to public disorder, and incitement to violence. Focussing on the contemporary times, he submitted that the present concerns are over the allegations of misuse of the law by the State governments when there is no public disorder, as envisaged. He argued that Section 124A is fair on its face, but abused in implementation, violating the fundamental rights. Therefore, the law itself will not become invalid, because it is misused, he suggested. “Even if you implement an unconstitutional law fairly, it can’t become valid”, he further suggested.