SC refers challenge to the validity of sedition law to constitution bench of at least 5 judges

The Supreme Court on Tuesday referred a question over the validity of the sedition law under the Indian Penal Code to a Constitution bench of at least five judges, while refusing a plea by the  Centre to defer examining the matter until a new law revising the provision comes into effect.

Attorney General R Venkataramani and Solicitor General Tushar Mehta, appearing for the Centre, submitted before a bench led by Chief Justice of India D Y Chandrachud that the sedition provision has been revised in the new proposed penal code, which at present is pending consideration of a parliamentary standing committee.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, noted that it is submitted that a new law on sedition is referred to the standing committee which will replace the penal code.

However, senior advocates Kapil Sibal, and others including former Union Minister Arun Shourie said that the enactment of a new law will not obviate the challenge to the constitutionality of 124A of the IPC because that cannot be retrospective.

The top court declined the request of the A-G and S-G to defer the hearing the challenge to constitutional validity of 124A, after recording “for more than one reason, Section 124A continues to be on statute book and the new law in a penal statute will have only prospective effect and that validity of the prosecution remains till 124A remains and the challenge needs to be assessed thus.”

Sibal, for his part, said that the matter may be referred to a five-judge bench to reconsider Kedarnath Singh case (five-judge bench judgment) or the present bench of three judges can decide it itself.

The bench said it will have to form a five-judge bench since a five-judge bench judgment is binding on it. 

The A-G said the new law is there and it is sent to a parliamentary standing committee. 

Sibal submitted that the new law is much worse and the prosecutions will go on. The A-G insisted that the parliamentary committee is looking into it and the court can wait on such an important issue.

Sibal said let the five-judge bench hear the case and decide if it needs to be heard by a seven- judge bench. 

Senior advocate Arvind Datar, also for the petitioners said let the matter be placed before a seven-judge bench and get it decided once and for all. A counsel submitted that Section 356 of the bill allows continuance of prosecution in old cases as under the earlier law.

After hearing the parties, the bench said, “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 the registry to place the papers before CJI for directions”.

The bench noted that five-judges can explain reference better and restrict the manner of implementation and the Constitution bench can either interpret Kedarnath Singh to bring it into conformity with current developments or refer it to a seven-judge bench.