The union government has defended the law against sedition, citing a six-decade-old judgment of a constitution bench of the Supreme Court, to assert that Section 124A (sedition) in the Indian Penal Code is a valid enactment and that there were enough safeguards already in place to balance constitutional rights of the citizens and the needs of the State.
In its written submission before the Supreme Court, the Narendra Modi government held that there was no need to review the validity of the sedition law, considering the constitution bench judgment in the Kedar Nath case in 1962, which, it said, remained a “good law”. It said that the 1962 verdict was also binding on the three-judge bench that was seized of several petitions challenging the constitutional validity of Section 124A, IPC, on the ground of infringement of fundamental rights and rampant abuse.
The union government, however, told the court that instances of abuse of a provision would not be a justification to reconsider a binding judgment of the constitution bench. “The remedy would lie in preventing such abuse on a case-to-case basis rather than doubting a long-standing settled law declared by a constitution bench for about six decades,” it said.
The Modi government strongly resisted judicial scrutiny of Section 124A by another constitution bench of five or seven judges, holding that the Kedar Nath verdict adequately applied the constitutional principles of proportionality, the fundamental right to freedom of speech and expression and the countervailing interest of the state to regulate.
“It is submitted that the said delicate balancing would pass the constitutional muster even today, despite the efflux of time and despite the change in the understanding of fundamental rights as compartments to conjoint rights… It must be treated as binding precedent requiring no reference,” stated the written submissions, settled by Solicitor-General Tushar Mehta.
The union government said that the five-judge bench had, in 1962, considered the validity of Section 124A from the perspective of all constitutional principles including the test of Articles 14 (right to equality), 19 (freedom of speech), 21 (right to life and liberty) and “no reference, therefore, would be necessary nor can the three-judge bench once again examine the constitutional validity of the very same provision.”
The union government’s views follow the submissions of Attorney-General KK Venugopal before the court on 6 May that the sedition law in India must be retained to ascertain the security of the nation and its citizens, adding that some guidelines may be laid down by the court to control the misuse of the statutory provision.
During the hearing of the matter on 6 May, the attorney-general endorsed the Kedar Nath judgment to argue that the contours of the penal provision had already been delineated by a constitution bench in 1962 and, therefore, there was no need for a relook at the provision.
In the Kedar Nath case, a constitution bench of the Supreme Court had upheld the validity of the sedition law under the IPC, maintaining that the purpose of the crime of sedition was to prevent the government established by law from being subverted because “the continued existence of the Government established by law is an essential condition of the stability of the State”. Section 124A is punishable with a jail term ranging from three years to imprisonment for life.
However, the five-judge bench had defined the scope of Section 124A. It held that Section 124A only penalised words that revealed an intent or tendency to disturb law and order or that seem to incite violence. The Supreme Court underlined that the presence of a pernicious tendency to incite violence was a precondition to invoking the sedition clause and that the penal provision could not be used to stifle free speech.
Leading the arguments on behalf of the petitioners, Kapil Sibal had two days ago countered the attorney-general, arguing that a sea change in jurisprudence had taken place since 1962 when the Kedar Nath verdict was pronounced. Therefore, he said, Section 124A could be struck down chiefly on the anvils of Articles 14 and 21, without there being any need to delve into questions of Article 19(1)(a) (freedom of speech) which was the premise of the Kedar Nath judgment.
At this point, the three-judge bench asked the union government as well as the petitioners to file their written submissions on the aspect of referring the matter to a larger bench since all the petitions had doubted the correctness of the five-judge bench judgment in the Kedar Nath case. The case would be heard next on 10 May.
Filing its submissions on 7 May, the Modi government endorsed every aspect of the 1962 judgment, saying that there was no need to either review the judgment or relook at the validity of Section 124A.
The government sought a dismissal of all the petitions, stating that it is a settled position in law that a judgment, which withstood the test of time and has been followed not mechanically but in the context of changing circumstances, cannot be easily doubted.
“The petitioners have not shown any justification based upon which this Hon’ble court can record a finding that Kedar Nath Singh [supra] is patently illegal requiring reconsideration… the judgment is Kedar Nath Singh has been the law of the land for more than six decades. The judgment balances constitutional rights and principles viz. needs of the State, to provide a reasonable interpretation,” the Modi government stressed.
The Kedar Nath judgment, the government maintained, laid down a delicate balance between the constitutional rights and the state’s interest, which would pass the constitutional muster even today, despite the efflux of time and despite the change in the understanding of fundamental rights as compartments to conjoint rights. “The constitutional validity of Section 124A has been tested and has been unequivocally upheld with certain riders. It is submitted that the Kedar Nath judgment is undoubtedly a binding precedent well settled in the constitutional jurisprudence in the country,” it said.
The union government is expected to file a counter-affidavit to the bunch of petitions on 9 May.
The court is considering a batch of petitions, filed separately by former army officer SG Vombatkere, Editors Guild of India, Trinamool Congress MP Mahua Moitra, NGO PUCL, and some journalists, pressing for striking down Section 124A.
During the hearing of this case on 15 July 2021, the apex court had lamented the “enormous power of misuse” of the sedition law in India and asked the union government why it should not scrap a colonial law that was once used by the British government to oppress the freedom movements and leaders such as Mahatma Gandhi and Bal Gangadhar Tilak.
The court had observed that day that indiscriminate use of Section 124A was like a saw in the hands of a carpenter who cut the entire forest instead of a tree. Putting the union government to notice on the petitions that have pressed for striking down Section 124A, the court emphasised that it was concerned about the “misuse of the law and lack of accountability of executive and the investigating agencies”.
The court’s comments in July 2021 came amid a sharp increase in the number of sedition cases filed amid a spate of demonstrations, many of them anti-national, rocking the country since 2014 when Narendra Modi became the country’s prime minister, with leftist and Islamist anarchism increasing manifold when he led the BJP to an even greater victory in 2019.
From 2016 to 2019, according to data from the National Crime Records Bureau, the number of cases of sedition rose by 160% to 93. But in 2019, the conviction rate in such cases was a mere 3.3%, with just two of the accused convicted in a scenario where the judiciary is facing constant criticism on social media for its alleged leftist bias.
India’s sedition law was introduced by the British in 1870 and almost dropped from the Constitution of India in 1948 after a debate in the Constituent Assembly. The word “sedition” disappeared from the Constitution on 26 November 1949 and Article 19 (1)(a) gave absolute freedom of speech and expression. However, Section 124A continued to stay in the IPC.
In 1951, Jawaharlal Nehru brought in the first amendment of the constitution to limit freedom under Article 19(1)(a) and enacted Article 19(2) to empower the state to put curbs in the form of “reasonable restrictions” on the right to free speech.
In the 1950s, a legal glitch surfaced when different high courts took divergent views on the validity of Section 124A. The issue was finally settled by the constitution bench in its judgment in the Kedar Nath case in 1962. The court upheld the validity of the sedition law under the IPC and also defined its scope. This definition has been taken as a precedent for all matters pertaining to Section 124A ever since.