5 May 2022 6:30 AM GMT
In the petitions challenging Section 124A of the Indian Penal Code which criminalises sedition, a 3-judge of the Supreme Court on Thursday decided to consider the preliminary issue whether a reference to a larger bench is required, as a 5-judge bench in the Kedar Nath decision of 1962 had retained the section after reading it down.A bench comprising Chief Justice of India NV Ramana,...
In the petitions challenging Section 124A of the Indian Penal Code which criminalises sedition, a 3-judge of the Supreme Court on Thursday decided to consider the preliminary issue whether a reference to a larger bench is required, as a 5-judge bench in the Kedar Nath decision of 1962 had retained the section after reading it down.
A bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli posted the matter at 2 PM on May 10 to hear preliminary arguments on the issue of reference.
The bench asked all the parties to file their written submissions on the issue of reference by Saturday. The Centre has been asked to file its counter by May 9,
Centre seeks time to file counter
When the matter was taken, Solicitor General of India Tushar Mehta, requested for time to file counter-affidavit of the Centre.
The SG said that the draft reply is ready from the lawyers' side and that it is awaiting the approval of the "competent authority".
"We issued notice almost 9-10 months, another bench also issued notice, I don't think there is any problem to hear the matter", the CJI observed.
"It would be inappropriate for me to argue on my part without the central government on record", the SG replied.
"It is examination of legal provisions, we can hear without your counter also we feel", the CJI said. The CJI asked what was the prima facie view of the Central Government.
"That issue will have to be debated between the govt and advisors", the SG said.
The bench then turned to the Attorney General for India KK Venugopal, to whom notice was issued separately earlier. The SG said that the AG will assist as the Attorney General and that the Central Government will have to file its counter.
The AG said that the provision needs to be retained and guidelines can be issued to prevent its misuse.
"Your lordships know what is happening in the country. Yesterday, somebody was detained under this Section just because they wanted to chant hanuman chalisa. So guidelines have to be there, to prevent misuse. Referring Kedar Nath to larger bench is not necessary. It is a well considered judgment", the AG said.
At this point, the bench turned to the petitioners' side on the issue of reference.
Issue can be decided ignoring Kedar Nath, reference not necessary : Sibal
Senior Advocate Kapil Sibal, appearing in the lead petition, submitted that a reference to a larger bench may not be necessary. He submitted that Kedar Nath was decided in the AK Gopalan era (when the judgment in AK Gopalan case on Article 21 held the field, in which all fundamental rights were seen as separate silos).Sibal submitted that after the RC Copper decision, there has been a "sea-change" in the fundamental rights jurisprudence, where rights are seen as interlinked forming part of a single fabric.
Sibal insisted that the 3-judge bench can go into the issue ignoring Kedar Nath, in the light of the subsequent developments in the fundamental rights jurisprudence. He said that his petition has not sought for a reconsideration of Kedar Nath.
However, Justice Surya Kant pointed out that many petitions have sought for overruling or reconsideration of Kedar Nath.
"Please give us a single instance where a 3-judge bench struck down a law which has been approved by a 5-judge bench?", Justice Kant asked. Senior Advocate Gopal Shankaranarayanan, appearing in another petition, submitted that in the Lily Thomas case, a 2-judge bench struck down Section 8(4) of the Representation of Peoples Act, despite a 5-judge bench earlier approving it, on the ground that some new aspects were not considered. Sibal submitted that there are precedents where smaller benches have distinguished larger bench decisions.
"Kedarnath confused between the "State" and the "Government". That is the mistake made. Every day spent in jail by a journalist, by a student, for criticising the government, is against Article 19(1)(a). We are living in a free country, we are not the subjects of the crown. The colonial masters have left long ago", Sibal urged.
"We're not challenging power of govt to frame law to restrict freedom of speech, we're challenging right of govt to restrict from from holding protest against government", Sibal submitted. He quoted what Mahatma Gandhi said about sedition offence - "It is my right to create disaffection against the government".
Justice Kant asked if "a subsequent change of law would enable a 3-judge bench to ignore a 5-judge bench which rightly or wrongly upheld the provision".
The Attorney General said that Kedar Nath is a "well balanced decision which balanced free speech and national security".
"It has been held that if law which is valid but its been misused, the law may not become invalid. The Question is what is so abhorrent in 124A which merely protects state's & citizen's security from public disorder. Kedar Nath is valid & there's no ground for referring it", the AG said.
The Solicitor General submitted that in the Aadhar case, the petitioners. had raised similar arguments as raised by Sibal now and yet the matter was referred to a 9-judge bench.
At the end, the bench decided to examine the preliminary issue on reference.
The bench was considering a batch of writ petitions filed by Army veteran Major-General SG Vombatkere (Retired) and the Editors Guild of India, Former Union Minister Arun Shourie , TMC MP Mahua Moitra, journalist Anil Chamadia, PUCL, journalists Patricia Mukhim and Anuradha Bhasin, and Journalist Union of Assam.
On last occasion, the Solicitor General of India Mr.Tushar Mehta had submitted that the Central Government's counter-affidavit is ready and could be filed within two days.
The bench had the. posted the matter for final disposal after directing the Centre to file its affidavit by the end of this week.
The bench had clarified that no further adjournment would be granted.
However, pursuant to court's orders two subsections applications have been filed by the Centre seeking time to file the counter.
While issuing notice on the petitions in July 2021, the CJI had orally made critical remarks against the provision.
"Is it still necessary to retain this colonial law which the British used to suppress Gandhi, Tilak etc., even after 75 years of independence?", the CJI had asked the Attorney General for India.
"If we go see history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item, uses it to cut the entire forest instead of a tree. That's the effect of this provision", the CJI had said.
In April 2021, another bench led by Justice UU Lalit had issued notice on a petition filed by two journalists challenging Section 124A IPC.
Case Title: S.G. VOMBATKERE vs UNION OF INDIA ( WPC 682/2021) EDITORS GUILD OF INDIA AND ANR. vs UNION OF INDIA AND ORS. (WPC 552/2021)
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