Constitutionality of Sedition | Day 2: SC Contemplates Whether to Refer Case to 7-Judge Bench

Despite past assurances of timely hearings in the challenges to the constitutionality of sedition, the Supreme Court acceded to Solicitor General (SG) Tushar Mehta’s request for further adjournment on May 5th, 2022. SG Mehta sought time to file the Union government’s response on the validity of Section 124A of the Indian Penal Code, 1860  which criminalises sedition. 

As noted by Chief Justice N.V. Ramana, notice was issued to the  Union on these petitions nine months ago. Yet, SG Mehta stated that he was awaiting approval from the competent authorities on the lawyers’ draft response. The irate Bench, also consisting of Justices Surya Kant and Hima Kohli, reluctantly granted the Solicitor General time until March 9th to file the Union’s response. 

Prompted by Justice Surya Kant, Senior Advocate Kapil Sibal, leading the challenges to the provision, and Senior Advocate K.K. Venugopal, assisting the Court in his capacity as Attorney General, argued briefly over the need to refer the case to a larger 7-Judge Bench to overrule the Kedar Nath Singh Judgment. In Kedar Nath Singh v State of Bihar (1962), a 5-Judge Bench found Section 124A constitutional, stating that it placed reasonable restrictions on the freedom of speech and expression. The Bench finally ordered both sides to file written arguments on the question of reference over the weekend. 

Constituting a 7-Judge Constitution Bench for the sedition hearings would disturb the smaller Benches on which the 7 Judges individually sit. It takes time to coordinate between the smaller Benches and schedule 7-Judge Bench hearings. Constitution Benches have been an increasingly rare occurrence at the Supreme Court, especially during the COVID-19 years.  

CJI Ramana has been keen to resolve the sedition dispute before his retirement in August. He previously commented on Section 124A’s colonial legacy and its rampant misuse. If things move swiftly, this might be one of the few Constitution Benches constituted during his tenure.

AG: No Need to Overrule Kedar Nath, Issue Guidelines To Prevent Misuse of S124A

AG K.K. Venugopal argued that Kedar Nath is a ‘well-balanced Judgment’ which need not be overruled. He admitted that there was widespread misuse of Section 124A to justify arbitrary arrests. However, he stated that the Section need not be read down to prevent this. Instead, it would be sufficient for the Court to issue guidelines to regulate the use of Section 124A—it should define what speech is permissible and what is restricted by Section 124A. To issue such guidelines, there was no need to reconsider Kedar Nath or to refer the case to a larger Bench. 

AG Venugopal clarified that he was assisting the Court purely in an individual capacity. SG Mehta stated that the Union government’s stance on the reference question may be different. He was unable to share the Union’s stance without further instructions from the competent authority. 

Mr. Sibal Argues Kedar Nath May Be Ignored, Bench Appears Unconvinced

Mr. Sibal opened his arguments by stating that the Court can decide this case in a 3-Judge combination, as there was no need to rely on Kedar Nath while examining the constitutionality of Section 124A. 

He argued that Kedar Nath was decided in the Gopalan (1950) era, when each Article of Part III of the Constitution—which describes Fundamental Rights—was considered to be a standalone Fundamental Right. During the Gopalan era, it was only possible to challenge Section 124A as violating the Right to Freedom of Speech, held under Article 19(1)(a). The Kedar Nath Bench did not examine whether the provision violated the Rights to Equality and Liberty, held under Articles 14 and 21 respectively. Since then, after the R.C. Cooper v Union of India (1970) decision, Fundamental Rights are seen as connected. 

Accordingly, Mr. Sibal argued that there was no need to refer the matter to a 7-Judge Bench, as the petitioners would constrain themselves to arguing on the basis of Articles 14 and 21, without relying on Article 19(1)(a). The current Bench would be able to decide the case without referring to the constitutionality of sedition deliberated over in Kedar Nath at all. 

Justice Surya Kant, motioning to the impossibility of this proposition, asked Mr. Sibal for any past case where the Court had ignored precedent while deciding a crucial matter. Senior Advocate Gopal Shankarnarayanan, also challenging Section 124A, stated the example of Lilly Thomas v Union of India (2013), where a 2-Judge Bench struck down Section 8(4) of the Representation of People Act, 1951, even though a larger Bench had upheld it. The 2-Judge Bench found that the larger Bench had decided the Act’s constitutionality on different grounds. 

Justice  Surya Kant suggested that the confusion of side-stepping Kedar Nath could be avoided by referring the question to a 7-Judge Bench. Mr. Sibal was not opposed to this, arguing alternatively that Kedar Nath made a fundamental mistake in considering the State and the government to be the same. While the government may be permitted to enact laws restricting free speech for the security of the State, it cannot criminalise all criticism of its own work. Mr. Sibal stated that sedition was a colonial law. Disaffection against the government is a virtue, stated Mr. Sibal, since the government serves the people. 

The Bench will hear the matter next on May 10th, 2022. CJI Ramana stated that Mr. Sibal and Mr. Mehta will be given half an hour each to argue whether the case should be referred to a larger Bench.