Govt says sedition law doesn’t need a relook

NEW DELHI: Defending the penal provision of sedition in India, the Union government on Saturday leaned on a six-decade-old constitution bench judgment to assert that Section 124A (sedition) in the Indian Penal Code is a valid law and that there are enough safeguards already in place to balance constitutional rights of the citizens and the needs of the State.

Submitting its written submissions before the Supreme Court, the Centre maintained that there is 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, remains a “good law”. It added that the 1962 verdict is also binding on the threejudge bench which is currently seized of a clutch of petitions challenging the constitutional validity of Section 124A, IPC on grounds of infringement of fundamental rights and rampant abuse.

The 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 caseto-case basis rather than doubting a long-standing settled law declared by a constitution bench for about six decades,” it added.

The government strongly resisted a judicial scrutiny of Section 124A by another constitution bench of five or seven judges, holding that the Kedar Nath judgment adequately applied the constitutional principles of proportionality, fundamental 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 efflux of time and despite change in the understanding of fundamental rights as compartments to conjoint rights... It must be treated as binding precedent requiring no reference,” stated written submissions, settled by solicitor general Tushar Mehta.

The government said that the five-judge bench 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 Centre’s views follow the submissions of attorney general (A-G) KK Venugopal before the court on Thursday 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.

Venugopal, during the hearing on Thursday, threw his weight behind the Kedar Nath judgment to argue that contours of the provision have already been delineated by a constitution bench in

1962 and, therefore, there is no need for a relook at the provision.

In the Kedar Nath case, a constitution bench upheld the validity of the sedition law under IPC, holding 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 jail term ranging from three years to life.

At the same time, the fivejudge bench defined the scope of Section 124A. It held that Section 124A only penalised words that reveal an intent 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 is a precondition to invoke the sedition clause and that the penal provision cannot be used to stifle free speech.

Leading the arguments on behalf of the petitioners, Kapil Sibal on Thursday countered the A-G, contending that a sea change in jurisprudence has taken place since 1962, when the Kedar Nath verdict came. 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 both the Centre and the petitioners to file their written submissions on referring the matter to a larger bench since all the petitions doubted the correctness of the five-judge bench judgment in the Kedar Nath case. The case would be heard next on May 10.

Filing its submissions on Saturday evening, the central government backed the 1962 judgment in all respects, saying there is 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,” it emphasised.

“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 added. The Union government is also expected to file its counter affidavit on Monday.

The court is considering a batch of petitions, filed separately by former army officer SG Vombatkere, Editors Guild of India, TMC MP Mahua Moitra, NGO PUCL, and some journalists, pressing for striking down Section 124A.

During the hearing of this case on July 15, 2021, the top court lamented the “enormous power of misuse” of the sedition law, and asked the government why it should not scrap a colonial law that was once used by the British to oppress the freedom movements and leaders like Mahatma Gandhi and Bal Gangadhar Tilak.

The court observed that indiscriminate use of Section 124A is like a saw in the hands of a carpenter who cuts the entire forest instead of a tree. Putting the central 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. Between 2016 and 2019, according to data from the National Crime Records Bureau, the number of such cases rose by 160% to 93. But in 2019, the conviction rate in such cases was a mere 3.3%, which means just two of the accused were convicted.

India’s sedition law has an interesting past — it was introduced by the British in 1870, and almost dropped from the Constitution in 1948. The word “sedition” disappeared from the Constitution on November 26, 1949 and Article 19 (1)(a) gave absolute freedom of speech and expression. However, Section 124A continued to stay in 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 conundrum came to the fore after various 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 IPC and also defined the scope of it. This definition has been taken as precedent for all matters pertaining to Section 124A ever since.