Supreme Court refers pleas challenging validity of sedition law to 5-judge bench

The bench, also comprising Justices P S Narasimha and Manoj Misra, said that a reference to a larger bench was needed in view of the fact that the provision was upheld in 1962 by a five-judge bench in the Kedar Nath Singh vs State of Bihar case and it would not be appropriate for a three-judge bench to sit in judgement over it.

“In our view, the appropriate course of action for a three-judge bench of this court would be to direct that the papers be placed before the chief Justice so that if so considered appropriate, the batch of cases can be heard by a bench of at least five judges since the decision in Kedar Nath Singh’s case, was by a constitution bench,” the order said.

Pointing out that a new bill had been introduced in the Parliament to replace the IPC with the Bharatiya Naya Sanhita and that it had been sent to a standing committee, the Centre urged the court to defer the hearing in the matter till the Parliament finally decides on the Bill.

But the Supreme Court rejected the request, saying that it being a penal statute, will have only prospective application and, therefore, the fate of cases registered under Section 124A will have to be gone into.

“Learned Attorney General for India R Venkataramani and Solicitor General Tushar Mehta have requested the court at this stage to defer considering whether a reference should be made having due regard to the fact that the Parliament is in the process of re-enacting the provisions of the penal code and the bill has has now been placed before a standing committee. We are not inclined to accept the request for deferring the constitutional challenge in these batch of matters for more than one reason,” said the bench.

On why it rejects the prayer, the Supreme Court said, “The provisions of Section 124A continue to remain on the statute book. Even on the assumption that the new law, which is proposed to be brought in by the government before the legislature, would result in a modification of the existing provisions of section 124A, there is a presumption that a penal statute would have prospective and not retrospective effect. Consequently, the validity of the prosecution which has been launched or would be launched so long as section 124A continues to remain on the statute, would have to be assessed on that basis”.

The court also pointed out that in the Kedar Nath Singh case, where Section 124A was read down and upheld, the provision was tested only as against Article 19(1)(a) of the Constitution and “there was no challenge on the ground that section 124A violated Article 14 nor did the Constitution bench have occasion to consider the validity of the provision against a constitutional challenge on the basis of Article 14”.

However, the present batch of petitions, the Supreme Court pointed out, challenge the provision on the ground that it conflates the state with the government, that it is a pre-constitutional enactment and does not carry the same presumption of constitutionality as a law which was enacted after the Constitution was adopted, that it is necessary to evaluate the validity of section 124A based on the doctrines which have evolved subsequent to the decision in Kedar Nath Singh, particularly bearing on the ambit of Articles 14 and 21.