NEW DELHI: The Supreme Court Tuesday referred to a five-judge bench the issue of constitutional validity of the contentious and much misused sedition offence under Section 124A of the Indian Penal Code after rejecting the Union government’s plea to pause the judicial scrutiny and await Parliament’s view on the proposed new code in Bharatiya Nyaya Sanhita (BNS), which seeks to do away with the provision.
A bench of Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra backed their decision not to accede to the requests by attorney general R Venkataramani and solicitor general Tushar Mehta, for deferment of the judicial scrutiny of sedition provision citing three reasons. First, the bench said, Section 124A continues to exist in the statute book and pending prosecutions under this provision would be valid even if Parliament enacted a new penal code.
Won’t defer reference to 5-judge bench: SC
Second, while upholding the validity of the provision in 1962 in Kedar Nath Singh case, the SC had tested it only on the touchstone of Article 19 guaranteeing free speech whereas in the last six decades, SC has expanded the ambit of scrutiny to involve the core troika of rights under Articles 14, 19 and 21. And the 1962 judgment did not distinguish the state, which found mention in the reasonable restrictions to free speech under Article 19(2), from the government, which was not mentioned in the same Article.
There was a debate on the strength of the bench which would hear the batch of petitions challenging the validity of Section 124A since a 5-judge bench of the court had already upheld its validity in 1962.
While senior advocate Kapil Sibal said the matter should be referred to a five-judge bench to decide whether the 1962 judgment required reconsideration, senior advocate Arvind Datar said the CJI, being the master of the roster, had the power to refer it directly to a seven-judge bench.
CJI Chandrachud said he did not want to wear two hats – sit on the judicial side and refer the matter to a five-judge bench and then on the administrative side exercise authority to send the petitions to a 7-judge bench. He said if the 5-judge bench disagrees with the Kedar Nath ruling, he would refer it to a 7-judge bench.
Sibal supplemented the bench’s view and said constitutional validity scrutiny of Section 124A is urgently needed as it was draconian and misused to silence people from speaking against the government in a democracy. “The new provision on sedition in the proposed BNS is even more draconian,” he alleged.
Mehta said whether it is draconian or not the SC would test it, but it was the present government which agreed in May last year to keep the provision in virtual suspension allowing the SC to put in abeyance all pending prosecutions under Section 124A of IPC.
“The earlier governments missed many chances to rectify the provision. The present government is attempting to correct it,” he said, adding that the colonial-era provision was a non-cognisable offence till 1973, when the Indira Gandhi government made it a cognizable offence through amendments in Criminal Procedure Code.
The AG and SG requested the court to defer reference to a 5-judge bench as Parliament is in the process of re-enacting the provisions of the Indian Penal Code. But the CJI-led bench said, “We are not inclined to accept the request for deferring consideration of the constitutional challenge involved in this batch of matter. The provisions of Section 124A continue to remain on statute. Even on the assumption that the new law, which is proposed to be brought in by the government before the legislature, would result in modification of the existing provisions of Section 124A, there is a presumption that any penal law in a new statute would have only prospective effect.”
A bench of Chief Justice DY Chandrachud and Justices JB Pardiwala and Manoj Misra backed their decision not to accede to the requests by attorney general R Venkataramani and solicitor general Tushar Mehta, for deferment of the judicial scrutiny of sedition provision citing three reasons. First, the bench said, Section 124A continues to exist in the statute book and pending prosecutions under this provision would be valid even if Parliament enacted a new penal code.
Won’t defer reference to 5-judge bench: SC
Second, while upholding the validity of the provision in 1962 in Kedar Nath Singh case, the SC had tested it only on the touchstone of Article 19 guaranteeing free speech whereas in the last six decades, SC has expanded the ambit of scrutiny to involve the core troika of rights under Articles 14, 19 and 21. And the 1962 judgment did not distinguish the state, which found mention in the reasonable restrictions to free speech under Article 19(2), from the government, which was not mentioned in the same Article.
There was a debate on the strength of the bench which would hear the batch of petitions challenging the validity of Section 124A since a 5-judge bench of the court had already upheld its validity in 1962.
While senior advocate Kapil Sibal said the matter should be referred to a five-judge bench to decide whether the 1962 judgment required reconsideration, senior advocate Arvind Datar said the CJI, being the master of the roster, had the power to refer it directly to a seven-judge bench.
CJI Chandrachud said he did not want to wear two hats – sit on the judicial side and refer the matter to a five-judge bench and then on the administrative side exercise authority to send the petitions to a 7-judge bench. He said if the 5-judge bench disagrees with the Kedar Nath ruling, he would refer it to a 7-judge bench.
Sibal supplemented the bench’s view and said constitutional validity scrutiny of Section 124A is urgently needed as it was draconian and misused to silence people from speaking against the government in a democracy. “The new provision on sedition in the proposed BNS is even more draconian,” he alleged.
Mehta said whether it is draconian or not the SC would test it, but it was the present government which agreed in May last year to keep the provision in virtual suspension allowing the SC to put in abeyance all pending prosecutions under Section 124A of IPC.
“The earlier governments missed many chances to rectify the provision. The present government is attempting to correct it,” he said, adding that the colonial-era provision was a non-cognisable offence till 1973, when the Indira Gandhi government made it a cognizable offence through amendments in Criminal Procedure Code.
The AG and SG requested the court to defer reference to a 5-judge bench as Parliament is in the process of re-enacting the provisions of the Indian Penal Code. But the CJI-led bench said, “We are not inclined to accept the request for deferring consideration of the constitutional challenge involved in this batch of matter. The provisions of Section 124A continue to remain on statute. Even on the assumption that the new law, which is proposed to be brought in by the government before the legislature, would result in modification of the existing provisions of Section 124A, there is a presumption that any penal law in a new statute would have only prospective effect.”