Solicitor General of India Tushar Mehta has asserted before the Supreme Court that the judgement in Kedar Nath Singh vs State of Bihar is a good precedent and that it requires no consideration. He has also submitted that isolated instances of misuse cannot be a ground to uproot the precedent that has withstood the test of time for over six decades.
The written submission came in a batch of petitions filed by journalists, activists, NGOs and political leaders challenging the constitutional validity of Section 124A IPC. These are the major arguments raised by the Solicitor General:
- Kedar Nath Singh is a binding precedent of a larger bench
The SG urged the Court that the judgement in Kedar Nath Singh is a constitution bench judgment and is binding on a three-judge bench. The said judgment is a good law, needs no reconsideration, and must be treated as a binding precedent requiring no reference, he added.
It was also added that a holistic reading of the decision clearly revealed that the constitutional validity of Section 124A was considered from the perspective of all constitutional principles including the test of Articles 14, 19, and 21. Therefore, it was submitted that merely because Articles 14 and 21 are not mentioned, its final judicial conclusion cannot be undermined.
"The five-judge bench read down Section 124A only to bring it in conformity with Articles 14, 19 and 21 of the Constitution. No reference, therefore, would be necessary nor can the three-Judge Bench once again examine the constitutional validity of the very same provision," reads the counter-affidavit.
- Legal developments post RC Cooper does not take away constitutional foundations of Kedar Nath Singh judgment
It was argued that subsequent judgments on other issues cannot be a ground to refer a long-standing precedent to a larger bench. If this is treated to be a sufficient ground every judicial pronouncement before Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 judgment, will have to be reconsidered and re-examined.
Further, the Solicitor General submitted that the tests which have specifically evolved post RC Cooper for testing the constitutional validity of a provision are already applied in Kedar Nath Singh, thereby asserting that no reference is necessary and all petitions deserve dismissal.
- Kedar Nath Singh judgement has stood the test of time
- Only a bench of co-equal strength as of Kedar Nath Singh can pose any doubts on the judgment
The bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli had asked earlier this week if a reference to a larger bench would be necessary as Kedar Nath is a 5-judge bench decision.
Senior Advocate Kapil Sibal had submitted that a reference to a larger bench may not be necessary and insisted that the 3-judge bench continue into the issue ignoring Kedar Nath, in the light of the subsequent developments in the fundamental rights jurisprudence.
However, the bench had asked if a 3-judge bench can ignore a 5-judge bench and whether judicial propriety demanded the reference of the matter to a larger bench.
Responding to this, the Solicitor General submitted that a three-judge bench cannot reconsider the ratio of a judgment of a constitution bench without referring the matter to a larger bench. Even if the question of reference arose, the bench of three judges has to first record its satisfaction that the ratio in Kedar Nath Singh is so patently wrong that it needs reconsideration by a larger bench. However, it has been pointed out that the petitioners have not shown any justification for this court to record such a finding.
"The bench of three Judges cannot itself decide whether Kedar Nath Singh [supra] is a good law or not," he has argued in his counter-affidavit.
- Individual instances of misuse of provision cannot be a ground for reconsideration
The written submissions also point out that isolated instances of the abuse of the impugned provision are not a justification to reconsider a binding judgment of the constitution bench. The remedy to this would be to prevent such abuse on a case-to-case basis rather than doubting a long-standing settled law declared by a constitution bench six decades ago, it has been submitted.
- Even if these arguments are rejected, a larger bench is necessary to consider the validity of Section 124A
The SG has concluded his arguments by asserting that even if none of the above arguments is convincing to the Bench, a 3-judge bench cannot examine the challenge to section 124A and that the matter has to be referred to a larger bench for consideration.
Case Title: S.G. Vombatkere v. Union of India