Sedition provision to be tested by a Bench of five or seven judges, says the Chief Justice of India

"The basic flaw in Kedar Nath Singh is that [it has] not appreciated the difference between the 'government' under Section 124A (of the Indian Penal Code) and 'State' under Article 19(2) (of the Indian Constitution). This is the heart of the matter," argued Kapil Sibal.

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The Supreme Court today referred a batch of petitions challenging the validity of Section 124A (Sedition) of the Indian Penal Code, 1860 to "a Bench of at least five judges".

A three-judge comprising the Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices J.B Pardiwala and Manoj Misra directed the Supreme Court registry to place the matter before the CJI on the administrative side to constitute the Bench.

The exact strength and composition will be known once the CJI, as 'master of the roster', notifies it.

At least five judges of the court will be needed to hear the challenge since the seminal judgment in Kedar Nath Singh versus State of Bihar (1962) on the applicability of the provision was delivered by a Bench of five judges.

In Kedar Nath Singh, the Supreme Court had limited the applicability of the provision to "activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace".

Three to five to seven

During the hearing, the CJI suggested that the matter be referred to a co-equal Bench of five judges reasoning that if there are things that need explaining in Kedar Nath Singh "then five can appropriately do it. They can say that the judgment did not look at the Article 14 angle.

"Or they can restrict the manner in which it is implemented on the ground. They might refer it to seven judges, or simply interpret Kedar Nath Singh to bring it in conformity with the present jurisdiction."

Before the CJI made these observations, senior advocate Kapil Sibal, appearing for one of the petitioners, had noted that the Bench in Kedar Nath Singh had tested the constitutionality of Section 124A only with regard to Article 19 (protection of certain rights regarding freedom of speech) and not other provisions of Part III (fundamental rights) of the Indian Constitution.

At the start of the hour-long hearing, Sibal was in conformity with the CJI's suggestion that it would be more appropriate to send the matter to a five-judge Bench, instead of a seven-judge Bench.

However, towards the end of the hearing, Sibal argued for directly referring it to a seven-judge Bench, since otherwise "it would be a waste of judicial time."

Senior advocate Gopal Sankaranarayanan, appearing for one of the petitioners, supplemented Sibal's submission stating that the grounds for challenging a provision or statute are wider now, in comparison to when Kedar Nath Singh was pronounced in 1962.

Sankaranarayanan said it would be ideal if the matter is placed before a Bench of five judges.

Senior advocate Arvind Datar, appearing for the petitioners, also suggested that the matter be sent to a five-judge Bench, reasoning that when the judgment in Kedar Nath Singh was delivered Articles under Part III "were in different silos. The whole gamut of fundamental rights has changed. If it goes to five then it can decide whether to send it to seven".

Datar, however, clarified, it would be "permissible" for the CJI to send the matter straightaway to a seven-judge Bench, reminding the Bench that the petitions seeking right to privacy as a fundamental right under Article 21 was sent to a nine-judge Bench, without first going to a five-judge Bench.

"Of course, sitting in my chamber as the Chief Justice, I can directly place it before seven (judges), but I do not want to," the CJI responded.

The CJI, at a different point in the hearing, also aired the possibility of a five-judge Bench deciding that a reference to a Constitution Bench was unwarranted and sending it back to the present three-judge Bench.

"Then we are bound by Kedar Nath Singh," he clarified.

Can it not wait?: Union government

Seeking a date to hear arguments on whether the court should refer the matter to a Constitution Bench, the Solicitor General of India Tushar Mehta asked the Bench, "Can it not wait?"

Mehta reasoned that the Union government has already prepared a draft of the provision that seeks to replace Section 124A, implying that Section 124A will be repealed if the proposed Bharatiya Nyaya Sanhita (BNS) Bill becomes law.

On August 18, the BNS Bill, along with the Bharatiya Nagarik Suraksha Sanhita Bill, and the Bharatiya Sakhshya Bill were referred to the standing committee on home affairs.

"I am asking this myself: would it not be an appropriate course of action to wait for a few more months. This is a British(-era) law," Mehta said.

At a later instance during the hearing, Sibal appeared to respond to Mehta's submission stating, "We cannot wait for a law [to be passed] by the Parliament. We have to decide on 124A as it stands today."

Mehta added that the Union government has filed an affidavit opposing the reference to a Constitution Bench. "A detailed 38 page note has been filed by us," he informed the court.

To this, Sibal responded, "We have also filed, m'lord. Going by pages, it is an 80 page note."

Declining the Union government's request to defer the consideration of the said petitions, the Bench said it was "not inclined to accept the request… for more than one reason."

Basic flaw in Kedar Nath Singh

The "basic flaw" in the Kedar Nath Singh judgment, according to Sibal, is that it failed to make any distinction between the terms 'State' and 'government'.

Section 124A uses the terms 'government' and 'government established by law in India'.

On the other hand, Article 19, on the basis of which Section 124A's validity was tested, uses the term 'State'.

"The basic flaw in Kedar Nath Singh is that [it has] not appreciated the difference between the 'government' under Section 124A and 'State' under Article 19(2). This is the heart of the matter.

"What is fundamentally wrong is that disaffection towards the State is different from disaffection towards the government," Sibal added.

Adding to his submissions, Datar noted that when Section 124A was drafted, a distinction between the State and the government did not exist.

"There was no elected government and the words were used interchangeably," Datar said.

Click here to read the order.