Supreme Court hints at referring sedition case to 7-judge bench
A proposed law has effectively retained sedition as a crime under a different name and with an expansive definition.
New Delhi The Supreme Court on Wednesday hinted at referring a clutch of petitions questioning the validity of the sedition law prescribed under Section 124A of the Indian Penal Code (IPC) directly to a Constitution bench of seven judges instead of first listing it before a five-judge bench.
In September, the court said that the matter should be placed before the Chief Justice of India (CJI) on the administrative side for setting up a Constitution bench with appropriate strength of judges, even as it rejected the Union government’s request to defer scrutinising the penal provision because a new law on the subject was in the pipeline.
A proposed law, which was introduced by the Centre in the Lok Sabha on August 11 and was subsequently referred to a parliamentary panel, has effectively retained sedition as a crime under a different name and with an expansive definition. The home affairs panel, in its report that was adopted earlier this month, approved of the new provisions, stating it “compliments the government in deleting the term ‘sedition’ from criminal law by rephrasing it without compromising the security of the State”. The new law is likely to be passed in the upcoming winter session of Parliament.
On Tuesday, when the case came up before the bench, comprising CJI Dhananjaya Y Chandrachud and justices JB Pardiwala and Manoj Misra, it was pointed out that the issue ought to be referred to a seven-judge bench since a previous judgment that had affirmed the legality of Section 124A was delivered by a five-judge bench. A 1962 judgment by a five-judge bench in Kedarnath Singh vs State of Bihar had upheld Section 124A. To be sure, only a larger bench can review or overrule a previous judgment.
“We are pressing for a seven-judge bench as this would require reconsidering the decision in the Kedarnath case,” senior counsel Gopal Sankaranarayanan, appearing for one of the petitioners in the matter, submitted. He added that if the case were to first come up before a five-judge bench, the decision by another five-judge bench in 1962 would again come up as a preliminary issue.
Agreeing with Sankaranarayanan’s submissions, the CJI said that he would pass suitable orders regarding constitution of a proper bench. “I will pass that order... there won’t be any fruit in forming another five-judge bench,” said justice Chandrachud, fixing the hearing of the case in January.
While referring the matter to a larger bench on September 12, the three-judge bench highlighted that the evolution of law and the manner of interpretations of constitutional rights since the 1962 judgment warranted a re-look at the Kedarnath Singh verdict.
“At the outset, it needs to be noted that at the time when the Constitution bench ruled on the validity of the provision, the challenge on the ground that section 124A violated articles of Constitution was tested on the anvil of only that article (Article 19 that protects free speech). There was no challenge that 124A violated Article 14 (equality) or Article 21 (liberty), nor did the constitution bench have the occasion to look into this issue,” recorded the court in its order on the day.
Section 124A of the Indian Penal Code (sedition law) — a cognisable and a non-bailable offence punishable with life sentence or a jail term up to three years, and one that rights activists and several jurists have alleged is often misused employed by the State to stifle protest and dissent -- is currently on hold due to a continuing interim order of the Supreme Court passed on May 11, 2022.
The September decision by the apex court came almost a month after the Centre introduced a bill in the Lok Sabha, indicating that sedition will continue to be a crime under the proposed law, albeit under a different name and definition, with the punishment for the offence being increased.
While the bill was referred to a parliamentary panel for further examination, an analysis of the Bharatiya Nyaya Sanhita Bill, 2023 suggests that the sedition offence has been retained under the proposed law with a new nomenclature and a more expansive definition of what will constitute “acts endangering sovereignty, unity and integrity of India”, even as it removes the words “disaffection towards the government established by law in India” from the old Section 124A of IPC.
The new provision, inducted as Section 150 of the bill, is more specific than the old one and directly targets secessionism, separatism, and a call for armed rebellion -- without using the words “contempt” or “hatred” against the government of India (as is under Section 124A), it leaves ample room for interpretation by neither incorporating the test of incitement to violence in the proposed provision nor connecting the act to public order.
The proposed Section 150 continues to criminalise any act that “excites or attempts to excite” secessionist activities or “encourages feelings of separatist activities” instead of making incitement to violence or disruption to public order a condition precedent to invoke the charges. Additionally, Section 150 in the 2023 bill penalises a person who “indulges in or commits any such act”, vesting with law enforcement agencies a greater discretion to decide what can be brought within the fold of an act “endangering sovereignty, unity and integrity of India” for the purposes of slapping the charges.
Another key change in the draft Section 150 of the bill is to remove an old provision which allowed a person convicted of sedition to get away only with a fine. Section 150 of the bill prescribes imprisonment for life or with imprisonment which may extend to seven years (three years under 124A), in addition to fine, as punishment.
During the proceedings on September 12, attorney general R Venkataramani and solicitor general Tushar Mehta urged the bench to defer considering whether a reference should be made to a larger bench as Parliament was in the process of re-enacting the provisions of the penal code.
The court, however, rejected the Centre’s plea, holding that pendency of a proposed law cannot become a reason to postpone examining a “live challenge” to Section 124A, which, it noted, remains on the statute book as on date and that the prosecutions under the said provision will continue for those already booked under it even if a new law is notified in future.
In its June report, the Law Commission recommended that the 153-year-old colonial law on sedition be retained, insisting that “repealing the legal provision can have serious adverse ramifications for the security and integrity of the country”. It favoured amending Section 124A “so as to bring about more clarity in the interpretation, understanding and usage of the provision”.
The commission said the sedition law, which carries a maximum punishment of life imprisonment or a punishment of three years, should be amended to enhance the alternative punishment to seven years, calling for giving the courts greater room to award punishment for a case of sedition in accordance with the scale and gravity of the act.