On Thursday, 5 May — the day when the apex court was slated to begin hearing the petitions challenging the constitutional validity of the sedition law (Section 124A of the Indian Penal Code) — the court found itself caught up in a dilemma about whether more judges needed to hear this matter, which has significant implications for civil liberties.
While the bench of Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli did not end up hearing any arguments on this preliminary issue on the day, there were still some significant takeaways from the brief hearing that took place.
The central government still did not have a response to the petitions ready and sought an extension for filing their response for the second time.
The Attorney General for India KK Venugopal — who was not representing the Center in this case but assisting the court as a constitutional office bearer — emphatically defended the sedition law, as well as the Kedar Nath judgment from 1962 which had said that Section 124A of the IPC was constitutional and could remain a part of the law.
The question of whether the matter should be referred to a larger bench saw contrary views being taken by all sides, and will now need to be addressed separately by the court (which will hear arguments from the petitioners and Solicitor General Tushar Mehta on Tuesday, 10 May), potentially delaying the court's ability to hear the merits of the case.
Centre's Response? (Still) Not Available
At the beginning of Thursday's hearing itself, Solicitor General Tushar Mehta, appearing for the petitioners, asked for more time to file the Centre's response.
Mehta's reasons for being unable to submit a response so far were:
“Draft reply prepared by us at lawyers level is awaiting approval by competent authority”
“Fresh matters have been filed since the last occasion"
However, it is worth pointing out that this is the second time that the Centre has sought an extension. The apex court had also warned in the previous hearing (27 April) that there would be no adjournments on 5 May.
Further, as the apex court reminded Mehta on Thursday, "notice was issued (in this matter) nine months ago and other benches also issued notice."
"You were put to notice, filing of new petitions doesn’t matter!" Justice Hima Kohli, on her part, went on to say.
The Solicitor General has, however, now been granted time to file the Centre's response by Monday morning.
AG's Emphatic Defence of the Sedition Law
"My stand may be different (from the Government)," Attorney General KK Venugopal declared before the top court, emphasising that he is in fact not representing the government in this case challenging the sedition law.
However, his defence of the constitutional validity of the sedition law, and mainly the, the Kedar Nath judgment was just as emphatic.
Broadly, Venugopal stated that there was no need to scrap 124A and the Kedar Nath decision was a well-balanced judgment and its validity ought to be upheld.
He also claimed that "misuse of the section has been controlled."
This came even as he highlighted the recent instance of Maharashtra government charging lawmakers Navneet Rana and Ravi Rana with sedition in connection with the recent Hanuman Chalisa row, and said:
"We need guidelines on this section - what is permissible and what is impermissible and what can come under sedition."
But Venugopal remained firm in his defence of the Kedar Nath judgment, which, for him "is the last word on the subject,” having traced the full history of sedition and restricted its application to cases where there was a threat to public order.
In his opinion, the question of referring the case to a larger bench did not arise as there is no need to reconsider this five-judge Constitution Bench judgment.
To take this position, the Attorney General sought to argue that just because there had been some subsequent developments in the jurisprudence on fundamental rights since Kedar Nath was decided in 1962, this did not mean there was a need to review the old decision.
However, as emphatically as he made his point, the fact remains that the post-1962 developments have been extremely significant, and have led to significant revisions of legal positions by the apex court, most notably on the right to privacy.
There are causes for major doubt on the idea that Kedar Nath can be the last word on sedition, given
In that case, the apex court could not examine whether the offence of sedition was constitutional in light of any fundamental right other than Article 19 — such as Article 14 (equal treatment before the law) or Article 21 (the right to life and personal liberty) thanks to a pre-1970 idea that fundamental rights operated in silos
Its interpretation of the sedition law allowed for the offence to be invoked for words that can have the 'tendency' to create public disorder or disturb law and order, despite a 1960 judgment of a Constitution Bench of the Supreme Court (which was binding on the judges in 1962) saying there had to be a 'proximity' test for public order offences
The court in 1962 relied on the fact that sedition as a criminal offence had been in place in England for centuries – a factual justification which no longer exists since England abolished sedition as an offence in 2009
Besides, Venugopal's claim that "misuse of the section has been controlled" may fall flat if one considers the mere fact that everything from cheering for Pakistan in a cricket match, shouting an Azadi slogan, or just being critical of the Modi government, has recently been enough to base FIRs and even arrest people for months.
While misuse of a provision cannot in itself be grounds for holding a law to be unconstitutional, a lack of adequate safeguards or vagueness in a law have become grounds to hold a law unconstitutional in recent years.
To Refer or Not to Refer (to a Larger Bench)?
The Court on Thursday, most importantly, dealt with the question of whether or not the matter should be referred to a larger bench. But why?
This is because the Kedar Nath judgment had been passed by a five-judge bench of the apex court in 1962, and in order to reconsider it the Court opined, the judgment has to be referred to a larger (seven-judge) bench.
On the subject of whether or not they can proceed with the case without getting into the 1962 judgment, the bench noted that in the various petitions filed before it, including by retired Army officer SG Vombatkere, the Editors Guild of India and Arun Shourie, “each one of you says Kedar Nath needs to be overruled”.
The court did, however, allow both sides to file their written submissions on whether or not the matter should be referred to a larger bench by Saturday morning.
While the Attorney General, as pointed out above, was unwavering in his defence of the Kedar Nath Singh judgment, the Centre has not yet expressed its stance on this point (they have to submit written arguments to the court on Saturday).
Senior advocate Kapil Sibal who represents Vombatkere and was appearing for the petitioners as a whole on the day, said that they can skip the issue of whether Kedar Nath needs to be overruled since their arguments can focus on violations of Articles 14 and 21. As these arguments had never been made in 1962, the old judgment is not binding on the court when it comes to them, he suggested.
And in case the Court does not agree with them that Kedar Nath can be sidestepped, the matter can then be referred to a seven-judge bench, in his view.
But why would Sibal have been against a larger bench hearing?
The answer to this lies perhaps in the timing of it all. Constitution Benches comprise of five judges or more and generally it takes a whole lot of time for so many top court judges to come together and mull over every intricate detail pertaining to the case.
Even though there is no fixed period in which a Constitution Bench may arrive at its decision, a case can spill over several years.
For instance, in the case of the Ayodhya dispute, even though the Akhil Bharatiya Hindu Mahasabha and Uttar Pradesh Sunni Central Waqf Board had moved the Supreme Court of India challenging the Allahabad High Court’s order back in 2011, the Constitution Bench of the apex court had been unable to deliver an order on the same before November, 2019.
In the Aadhaar case (Justice KS Puttaswamy (Retd) vs Union of India), the first writ petition was filed as early as in 2012, but the order was passed by the Constitution Bench only in 2018. Reference to a larger bench had been made in 2015, a nine-judge bench heard the basic issue of right to privacy as a fundamental right in 2017, and a five-judge bench then finally considered its application to Aadhaar a year later, by which time the issue had become a fait accompli.
Addressing the Court and arguing against the idea of referring the case to a larger bench, Sibal said on Thursday:
"Every day spent in jail by a student or journalist because of sedition law is against the very idea of India."
CJI Ramana has, in his own words, expressed reservations over the sedition law in the past. On 15 July 2021, when first looking at the Vombatkere petition, the CJI asked Venugopal:
"Dispute is that it is a colonial law and was used by British to suppress freedom. It was used against Mahatma Gandhi and Bal Gangadhar Tilak. Is this law still needed after 75 years of Independence?"
But, it may be pertinent to note that CJI Ramana is slated to retire on 26 August, making any delays in constituting a bench to hear the matter potentially fatal.