The Supreme Court on Tuesday referred a clutch of petitions questioning the validity of the sedition law prescribed under Section 124A of the Indian Penal Code (IPC) to a Constitution bench of at least five judges, rejecting the Union government’s request to defer scrutinising the penal provision because a new law on the subject was in the pipeline.
A proposed law, which was introduced by the Centre in the Lok Sabha on August 11 and subsequently referred to a parliamentary panel, has effectively retained sedition as a crime under a different name and with an expansive definition.
A three-judge bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, held that pendency of a proposed law cannot become a reason to postpone examining a “live challenge” to Section 124A, which, it noted, remains on the statute book as on date and that the prosecutions under the said provision will continue for those already booked under it even if a new law is notified in future.
The bench, which also comprised justices JB Pardiwala and Manoj Misra, pointed out that the matter requires to be referred to a larger bench since a 1962 judgment by a five-judge bench in Kedarnath Singh vs State of Bihar had affirmed the legality of section 124A, and thus, only a bench of coordinate strength or a larger bench can review the previous verdict.
While referring the matter to a larger bench, the three-judge bench highlighted that the evolution of law and the manner of interpretations of constitutional rights since the 1962 judgment warranted a relook at the Kedarnath Singh verdict.
“At the outset, it needs to be noted that at the time when the Constitution bench ruled on the validity of the provision, the challenge on the ground that section 124A violated articles of Constitution was tested on the anvil of only that article (Article 19 that protects free speech). There was no challenge that 124A violated Article 14 (equality) or Article 21 (liberty), nor did the constitution bench have the occasion to look into this issue,” recorded the court in its order.
“In our view, the appropriate course of action will be to place the papers before the CJI so that case can be heard by a bench of at least five judges since Kedarnath Singh was a constitution bench judgment. We direct registry to place the papers before the CJI for appropriate directions,” the order added.
Section 124A of the Indian Penal Code (sedition law) — a cognisable and a non-bailable offence punishable with life sentence or a jail term up to three years, and one that rights activists and several jurists have alleged is often misused employed by the State to stifle protest and dissent, is currently on hold due to a continuing interim order of the Supreme Court passed on May 11, 2022.
The decision by the apex court comes a month after the Centre introduced a bill in the Lok Sabha, indicating that sedition will continue to be a crime under the proposed law, albeit under a different name, with the punishment for it being increased.
While the bill was referred to a parliamentary panel for further examination, HT’s analysis of the Bharatiya Nyaya Sanhita Bill, 2023, suggests that the sedition offence has been retained under the proposed law with a new nomenclature and a more expansive definition of what will constitute “acts endangering sovereignty, unity and integrity of India”, even as it removes the words “disaffection towards the Government established by law in India” from the old Section 124A of IPC.
The new provision, inducted as Section 150 of the bill, is more specific than the old one and directly targets secessionism, separatism, and a call for armed rebellion — without using the words “contempt” or “hatred” against the government of India (as is under Section 124A), but it leaves ample room for interpretation by neither incorporating the test of incitement to violence in the proposed provision nor connecting the act to public order.
The proposed Section 150 continues to criminalise any act that “excites or attempts to excite” secessionist activities or “encourages feelings of separatist activities” instead of making incitement to violence or disruption to public order a condition precedent to invoke the charges. Additionally, Section 150 in the 2023 bill penalises a person who “indulges in or commits any such act”, vesting with law enforcement agencies a greater discretion to decide what can be brought within the fold of an act “endangering sovereignty, unity and integrity of India” for the purposes of slapping the charges.
Another key change in the draft Section 150 of the bill is to remove an old provision which allowed a person convicted of sedition to get away only with a fine. Section 150 of the bill prescribes imprisonment for life or with imprisonment which may extend to seven years (three years under 124A), in addition to fine, as punishment.
During the proceedings in the top court on Tuesday, senior counsel Kapil Sibal, Arvind Datar and Gopal Sankaranarayanan, representing different petitioners, implored the bench to immediately refer the challenge to the validity of Section 124A, pending since 2021, to a Constitution bench.
Attorney general R Venkataramani and solicitor general Tushar Mehta, appearing for the Centre, objected to the request, urging the court to wait till the parliamentary panel looks into various aspects of the bill and a new law is passed by Parliament with or without modification.
While the petitioners flagged that the proposed law is “worse” and retains sedition in a “more stringent and wide form”, the bench told the law officers that the process or the notification of a new legislation “cannot obviate the challenge to the constitutionality of Section 124A because a penal law cannot be retrospective”.
The bench added: “Assuming there is a new law in future, but it has to be prospective. What happens to the pending prosecutions? They will be dealt with under the old regime. You (AG) are right that there is a stay on prosecutions in such cases, but the constitutional point will have to be decided.”
Responding, Venkataramani argued that the 1962 judgment laid down certain safeguards against malicious prosecutions under Section 124A, adding an array of subsequent judgments also clarified the applicability of the provision. Mehta also supported deferment of the adjudication, arguing scrutiny of the colonial era law could await a few more months if it has waited for several decades. He also pointed out that any observation of the court with respect to Section 124A may incidentally touch upon the correctness of the proposed law.
But the bench turned down the Centre’s objection. “What you are referring to is not a law today. It’s a proposed law. There is no way we won’t look at the constitutionality of Section 124A because the new law cannot have a retrospective effect. That is the settled position,” it told the law officers.
Simultaneously, the bench pointed out that the discussion in the 1962 judgment highlights that Section 124A was tested on the parameters of Article 19 because the constitutional position, as it was at the time, laid down that a challenge to a law can be brought only by citing a specific fundamental right.
“But we now have evolved constitutional principles on doctrine of proportionality and Article 14. Subsequent judgments have given way to a more substantive reading of Article 14 and a more nuanced principles of the doctrine of proportionality…the 1962 judgment apparently has not considered the interplay between articles 19 and 14,” it observed.
In its order, the bench, hence, recorded: “We decline the request of learned A-G and S-G to defer the hearing of the challenge to the constitutional validity of section 124A for more than one reason. Section 124A continues to be in the statute book and the new law in a penal statute will have only prospective effect. Validity of prosecutions under Section 124A remains till 124A remains and therefore, the challenge needs to be assessed.”
Section 124A of IPC currently reads as: “Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”
Section 150, as proposed under the new bill, states: “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine.”
In its June report, the Law Commission recommended that the 153-year-old colonial law on sedition be retained, insisting that “repealing the legal provision can have serious adverse ramifications for the security and integrity of the country”. It favoured amending Section 124A “so as to bring about more clarity in the interpretation, understanding and usage of the provision”.
The commission said the sedition law, which carries a maximum punishment of life imprisonment or a punishment of three years, should be amended to enhance the alternative punishment to seven years, calling for giving the courts greater room to award punishment for a case of sedition in accordance with the scale and gravity of the act.
When the Supreme Court last heard the matter in May, the AG informed it that the legislative process of reviewing the law on sedition is in the “final stages”, adding “the government is keen on pushing reforms”. The top law officer at the time submitted that the government has set up a committee to review Section 124A in the IPC and that the deliberation with the stakeholders was on.
Recording the AG’s statement, the bench then postponed the hearing while saying that the court may also consider a larger bench for determination of the validity of the sedition law since a five-judge bench had in 1962 upheld its legality.
