The Supreme Court on Tuesday referred petitions challenging Section 124A, the provision for sedition in the Indian Penal Code, to a Constitution Bench while refusing to wait for the Parliament’s word on Bharatiya Nyaya Sanhita Bill, a draft law proposed to replace the British-made penal code of 1860.

A three-judge Bench headed by Chief Justice of India DY Chandrachud found no merit in a suggestion from the government to defer the case instead of referring it to a larger Bench of five judges.

Attorney General R Venkataramani said a “substantive hearing” of the case immediately would be untimely as the Bharatiya Nyaya Sanhita Bill was before a Parliamentary Standing Committee and may be tabled in the winter session along with Bhartiya Nagrik Suraksha Sanhita and Bharatiya Sakshya Bills, which are meant to replace the Code of Criminal Procedure and the Indian Evidence Act, respectively.

Solicitor General Tushar Mehta, also for the Union, urged the court to not “pre-empt” the Parliament.

The court said its resolve against postponing the case was based on a well-settled legal principle that a new penal law would apply only prospectively. Prosecutions under Section 124A, presently on hold following a Supreme Court order in May 2022, would persist even if the Bharatiya Nyaya Sanhita Bill manages to pass muster in Parliament.

Pending cases

“Assuming the new law does come into force, that law will govern only future cases. In so far as pending prosecutions under Section 124A are concerned, they will continue… unless the new law says it has retrospective effect or the Parliament says all pending cases under Section 124A will lapse. There is no way we can avoid looking into the constitutionality of Section 124A on the ground that a new law may come… Section 124A will operate and govern all prosecutions until the new law takes effect. That is a well-settled proposition. A new penal law cannot be applied with a retrospective effect,” Chief Justice Chandrachud observed.

Senior advocates Kapil Sibal, Arvind Datar and Gopal Sankaranarayanan accompanied by advocates Vipin Nair, PB Suresh and Prasanna S, have argued for the petitioners that “words or action conveying disaffection to the government cannot necessarily be treated as seditious in character in relation to the state. The State cannot be equated with the government of the time.”

Sibal said the new clause proposed in place of Section 124A was “unfortunately worse”. Section 150 in the Bharatiya Nyaya Sanhita Bill avoids using the term ‘sedition’, but describes the offence as any act “endangering sovereignty, unity and integrity of India”.

“What they have proposed is far more draconian,” Sibal submitted.

Mehta retorted that though Sibal termed Section 124A “draconian”, the previous government had not taken the time to get rid of the provision all these years. “Why did they not? Now, the current government is doing it,” he said.

However, the court refused to comment on the Bill and its provisions. “We will not examine the new law. It is not even a law today, only a proposal,” the Chief Justice said.

Advocate Kaleeswaram Raj, for a petitioner, said a reference to a five-judge Bench was not warranted as the Centre, in an affidavit filed earlier in court, had cast doubts about the constitutionality of Section 124A.

However, Chief Justice Chandrachud said any re-examination of Section 124A would have to consider a Constitution Bench judgment of 1962 in the Kedar Nath Singh versus State of Bihar case, which had upheld the legality of Section 124A though limiting its applicability to “activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace”.

Kedar Nath judgement

However, the Chief Justice said the ambit of the Kedar Nath judgment was confined to the impact of sedition on free speech and expression enshrined in Article 19(1)(a) of the Constitution. It had not touched upon the effect of Section 124A on the fundamental rights to life (Article 21) and equal treatment (Article 14). The court said the Kedar Nath judgment had to be re-evaluated taking into consideration the substantial advancements made in recognising and evolving new rights since 1962.

“As a three-judge Bench, we cannot review the Kedar Nath judgment. Let a five-judge Bench review the 1962 judgment. In case, it says the 1962 judgment does not require modifications and sends it back to us, we are bound by it. The five-judge Bench can also refer it to a seven-judge Bench or it can even make modifications in the interpretation of Section 124A to suit the present times,” Chief Justice Chandrachud explained.

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