Constitutionality of Sedition Law | Day 6: CJI-led bench refers challenge to a Constitution Bench of “at least five-judges”
Constitutionality of SeditionJudges: D.Y. Chandrachud CJI, J.B. Pardiwala J, Manoj Misra J
On 12 September 2023, a three-judge bench led by Chief Justice D.Y. Chandrachud referred a batch of petitions challenging the constitutionality of sedition law to a larger bench. Specifically, the challenge concerns the offence of sedition under Section 124A of the Indian Penal Code, 1860. The number of judges on the Constitution Bench is yet to be decided—the Chief’s order indicated that it will “at least” comprise five judges. The Constitution Bench will revisit Kedarnath Singh v State of Bihar (1962) where the Supreme Court upheld the constitutionality of sedition. Kedarnath will be scrutinised by applying constitutional principles that evolved during the “six decades” after the judgement.
The petitions were filed in February 2021. In May 2022, a three-judge bench led by former Chief Justice N.V. Ramana imposed a stay on Section 124A’s application until the Union re-examined the law. CJI Ramana strongly vocalised his concerns of sedition having a chilling effect on free speech, commenting that the provision is akin to “a carpenter being given a saw to make an item, [who] uses it to cut the entire forest instead of a tree”.
Background
On February 17th 2021, two journalists, Kishore Wangkhemcha and Kanhaiya Lal Shukla, filed a petition in the Supreme Court challenging the constitutionality of sedition law. Section 124A describes sedition as ‘attempts to excite disaffection towards the Government established by law in India.’
Mr. Wangkhemcha, a Manipur-based journalist and anchor for local news channel ISTV, was arrested for his criticism of the Manipur Government and its relationship with the ruling NDA government. He allegedly called the Chief Minister a ‘puppet of Hindutva’ in a video uploaded to social media. Mr. Shukla, a journalist from Chattisgarh, participated in a different brand of political commentary by posting cartoons on social media which satirised the fake encounters allegedly conducted by the Gujarat police between 2002 and 2006.
Mr. Shukla was charged with sedition in April 2018 and Mr. Wangkhemcha was charged in August 2018. They subsequently filed a petition before the Supreme Court challenging the law in 2021 and questioned its roots and current application. The law’s broad mandate has historically been used as a tool to stifle free speech.
Nine other petitions challenging the law on sedition have been tagged with Mr. Wangkhemcha and Mr. Shukla’s petition. The petitioners include:
- Major General S.G. Vombatkere;
- The Editors Guild of India;
- The Journalists Association of Assam;
- Mr. Arun Shourie, former Minister of Communications and Editor of the Times of India and The Indian Express;
- The People’s Union for Civil Liberties;
- Ms. Mahua Moitra, Member of Parliament from the Trinamool Congress;
- Ms. Patricia Mukhim, the Editor of the Shillong Times;
- Mr. Anil Chamadia, Chairman of the Media Studies Group.
Alongside arguments concerning its effect on free speech, questions on its proportionality and relevance of sedition law in India today are raised.
Currently, the Supreme Court’s verdict in Kedar Nath v Union of India (1962) serves as precedence when determining whether actions or speech are seditious. In Kedarnath, the Court held that there must be an ‘incitement to violence’ or ‘tendency or intention to create public disorder’ in order to prove that an act or speech is seditious. However, this Judgment has been criticised for contradicting itself.
The Supreme Court has been considering a reference to a larger bench since 5 May 2022. However, they agreed to the Union’s request to keep the case pending while it reconsiders the law on sedition. In the meantime, the Supreme Court chose to exercise caution on May 11th, 2022, ordering that ‘no coercive action’ be taken in sedition cases that remain pending while the Union re-examines the law
Issues in Focus
- Whether constitutionality of sedition should be referred to a larger constitution bench?
CJI Chandrachud: Kedarnath occurred prior to constitutional developments
Senior Advocate Kapil Sibal highlighted the urgency of hearing challenges to Section 124A in light of “pending prosecutions” against several persons. As per a tracker maintained by Article 14.com, there are 867 cases with 13,000+ accused persons under Section 124A. Sibal presented two options. He suggested that validity can either be evaluated by a five-judge bench, or a division bench of the Supreme Court can hear the case without a reference.
CJI Chandrachud observed that Kedarnath was decided in 1962, before the “entire evolution of the law in terms of the doctrine of proportionality” and “the evolution of Article 14”. During that time, Articles 14 and 21 were not “substantively” interpreted. For instance, he explained, Maneka Gandhi v Union of India (1978) nuanced the interpretation of Article 21. The Chief’s observations formed a strong basis to refer the case to a larger bench. In his oral order, he stated that Kedarnath upheld Section 124A after testing it “only on the angle of Article 19(1)(a)” i.e. freedom of speech and expression. Simply put, Kedarnath did not consider the validity of Section 124A in relation to the right to equality, the right to liberty and the test of proportionality.
Union: Defer reference until Parliament enacts a new penal law
Attorney General R. Venkataramani and Solicitor General Tushar Mehta requested the Court to defer from referring the challenge to a larger bench by highlighting that the Parliament is in the process of enacting a new penal law. The new penal law is called the Bharatiya Nyaya Sanhita Bill, 2023, and the bill is currently being examined by a parliamentary standing committee. Lawyers present in the Court used this occasion to express their views on the bill. Senior Advocate Arvind Datar pointed out that the new penal law has continued sedition under a “new label”. Sibal stated that the new amendments are “far more draconian”.
A similar line of argument was adopted by the Union in May 2022. A bench led by former CJI Ramana was considering referring the challenge to a seven-judge bench. The Union argued that it was in the process of reconsidering sedition law, and asked the court to halt proceedings on the constitutional challenge. In today’s hearing, CJI Chandrachud stated that the Court was “not inclined to accept” these arguments.
CJI Chandrachud observed that once the new penal code is in force, it will apply “prospectively”, and not “retrospectively”. This means all pending prosecutions under Section 124A will still continue even after a new law is in force. Further, as the provision continues to remain in the statute books, it is necessary to examine its constitutionality. When a provision is declared unconstitutional it is treated as if it never existed. This makes the evaluation of Section 124A crucial. If the Supreme Court rules against the validity of the provision, all pending cases will be dropped.
Petitioners: “State” cannot be equated with “Government established by law”
Section 124A punishes individuals who “excite disaffection” against a “government established by law”. Sedition is considered a reasonable restriction under Article 19(2) as it restricts freedom of speech in the “interest of the security of the State”. Kedarnath observed that the “continued existence of the Government established by law is an essential condition of the stability of the State”. The petitioners disagreed with this notion. They argued that “government established by law” and “state” are distinct. In the oral order, CJI Chandrachud observed that Kedarnath did not make a distinction between the two. If the larger bench finds them to be distinct, the provision will not be protected by restrictions under Article 19(2).