The Supreme Court on Tuesday, 10 May saw a hearing – which was supposed to be about whether there was a need to refer the pleas before it challenging the sedition law to a larger bench – sidetracked by the question of whether the court should defer considering constitutionality of a law when the government says it is reconsidering the law.
Solicitor General Tushar Mehta began the hearing by reiterating that the Centre is planning to "re-consider and re-examine" Section 124A, in line with Prime Minister Narendra Modi's belief in civil liberties and the need to shed our colonial baggage.
They have asked the court to not invest time in this case striking down the law on sedition while the central government conducts this review, which they believe is the appropriate forum for any reconsideration of the law on sedition.
Mehta requested the court to defer hearing the case on Monday, which was strongly contested by senior advocate Kapil Sibal, representing the petitioners.
"The exercise of this court cannot be stopped merely because the legislature says it will take some time to reconsider, which could take six months or one year. It is for the judiciary to examine the constitutionality of a law," Sibal said.
Senior advocate Gopal Sankaranarayanan pointed out to the court that the affidavit cannot speak to what Parliament will do, as the Supreme Court has recognised in the past. The affidavit is only on behalf of the executive, not Parliament, and it is Parliament which would have to repeal the law on sedition.
Sankaranarayanan also suggested that this was starting to become a pattern, with the Centre seeking to make this plea of reconsidering the law in the middle of the hearings on the right to privacy in the Supreme Court, and also during the challenge to marital rape exception in the Delhi High Court.
Chief Justice of India NV Ramana said the Centre's affidavit would have to be taken into account as they should appear unreasonable However, there are many cases of sedition pending, with examples of misuse including for chanting the Hanuman Chalisa, as noted by Attorney General KK Venugopal at the previous hearing.
Mehta said the constitutional courts already look into potential violations of the fundamental rights in sedition cases, so there was no need for the court to pass any orders staying the operation of the sedition law, as the petitioners were suggesting.
Justice Hima Kohli suggested that the Centre could issue an advisory to state governments saying that since they were reconsidering the sedition law, state governments could follow certain guidelines before filing sedition cases.
Justice Surya Kant noted that it was local police forces who were applying the sedition law, not judges or legal experts, and therefore it might be advisable to issue a directive to them to keep the sedition law in abeyance till the central government completed its review.
Mehta said there would be no problem issuing a circular to state governments telling them to follow the existing law – which Sibal pointed out is based on the 1962 Kedar Nath Singh challenge, which the petitioners are arguing has been left behind by subsequent developments in the law.
The court finally asked the Solicitor General to get the stand of the Centre on what it would do about pending sedition cases and those which would be filed in the future.
"We will give you time till tomorrow, our specific queries are: one, about pending cases, and two, how the government will take care of future cases while the law is still in force?"CJI NV Ramana to Solicitor General Tushar Mehta on 10 May
The bench has asked the Centre to clarify if it is willing to say that existing and future pending cases can be kept in abeyance till its reconsideration of Section 124A is over, as prayed for by the petitioners.
The matter will resume in the morning of Wednesday, 11 May. Depending on the Centre's stance, the court will see if it will then take up the question of whether to refer the matter to a larger bench.
The Sedition Case Before the Supreme Court
The bench of Chief Justice of India NV Ramana along with Justices Surya Kant and Hima Kohli is hearing a number of petitions challenging the constitutionality of Section 124A of the Indian Penal Code, which prescribes the definition and punishment for the offence of sedition.
The lead petition was filed by retired Army Major General SG Vombatkere, with other petitions filed by the Editors Guild of India, former Union Minister Arun Shourie, journalist Kishorechandra Wangchem, West Bengal MP Mahua Moitra, among others.
They have argued that Section 124A violates numerous fundamental rights of citizens, including the right to life and personal liberty under Article 21 of the Constitution, the right to equal treatment of law under Article 14, and of course the right to freedom of speech and expression under Article 19(1)(a).
In 1962, a five-judge Constitution Bench of the apex court in the Kedar Nath Singh case had upheld the sedition law, saying that if it was read as applying to situations where there was a disturbance of public order, it would be a reasonable restriction on the right to freedom of speech.
The petitioners have argued that the subsequent jurisprudence of the Supreme Court means this is no longer good law. In particular, they have noted that following a 1970 decision of an 11-judge bench of the top court, violations of fundamental rights don't have to be seen in isolation.
As a result, the constitutionality of sedition needs to also be examined under Articles 14 and 21, which was not done in the Kedar Nath Singh case.
This argument was crucial to the hearing before the court on whether or not it needed to refer the case to a larger bench.
The petitioners contend that the arguments on Article 14 and Article 21 were never made before the court in 1962, and therefore the Kedar Nath Singh judgment cannot be considered binding against those arguments to strike down sedition.
As a result, they say the current three-judge bench hearing the matter can continue to do so, since it can apply post-1962 rulings of the Supreme Court on Articles 14 and 21, without having to hold that Kedar Nath Singh was wrongly decided.
The Centre, however, contends that regardless of the subsequent jurisprudence on fundamental rights, the 1962 judgment has stood the test of time, and has been referred to by the apex court multiple times over the last 60 years as setting down the law on sedition.
This means that any new decision holding sedition to be unconstitutional, no matter on what grounds, has to be able to negate Kedar Nath Singh. This can only be done by a bench of five or more judges, Solicitor General Tushar Mehta has argued.
The petitioners have contested the need to refer the case to a larger bench, but have filed a fresh application saying that if the court does decide it needs to do so, it should then pass a stay on the operation of Section 124A till then.
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