W.P. (C) 773/2021
Petition challenging constitutional validity of Sedition under Section 124A of the Indian Penal Code, 1860
Common Cause filed a petition challenging the constitutional validity of Sedition under Section 124A of the Indian Penal Code, 1860, as being violative of Articles 14, 19(1)(a), & 21 of the Constitution of India.
Sedition is a colonial law that was used expressly to suppress dissent by the British in India. Yet sedition continues to be heavily abused with cases being filed against citizens for exercising their freedom of speech and expression by the law enforcement authorities.
In Kedar Nath Singh v State of Bihar, 1962 Supp (2) SCR 769, the constitutionality of Section 124A of Penal Code, 1860, was tested and upheld because faced with two interpretations of Section 124A, the court applied the Doctrine of Presumption of Constitutionality, to adopt the interpretation which could save the section. As per Kedar Nath, the offence of sedition is complete if the activities tend to create public disorder or disturbance of law and order or public peace. Since then, however, this Hon’ble Court in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 and Joseph Shine v. Union of India, (2019) 3 SCC 39, has held that the presumption of constitutionality does not apply to pre-constitutional laws as those laws have been made by foreign legislature or body.
Further, the Kedar Nath Case failed to take note of the judgment of Constitutional Bench in Superintendent Central Prison v. Dr Ram Manohar Lohia (1960) 2 SCR 821 wherein it was held that (a) only aggravated disturbance of ‘public order’ as opposed to mere ‘law and order’ could be used to restrict freedom of speech and expression and (b) there should be a direct and proximate connection between the instigation and the aggravated disruption of public order. The aforesaid principle has been affirmed in Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 and Shreya Singhal v. Union of India (2015) 5 SCC 1. By casting ‘the net’ too wide the interpretation given in Kedar Nath falls foul of the judgment of this Hon’ble Court in Superintendent Central Prison v. Dr Ram Manohar Lohia (1960) 2 SCR 821.
On April 28, 2022, the petiton was mentioned by Mr. Bhushan. The bench comprising of the Chief Justice, Justice Surya Kant & Justice Hima Kohli directed the matter to be listed along with Writ Petition (Civil) Nos.682/2021 & 552/2021 on May 5, 2022.
On May 5, 2022, the bench comprising CJI NV Ramana, Justices Surya Kant and Hima Kohli heard preliminary arguments on the issue and decided to consider the preliminary issue whether a reference to a larger bench is required, as a 5-judge bench in the Kedar Nath Singh v. State of Bihar (1962) had retained the section after reading it down. SG Tushar Mehta asked for time to file its counter. The bench noted that this bench and other benches have issued notice, since as far back as 9 months yet no action has been taken by the Centre. They were asked to file the counter by May 9, 2022 and clarified that no further adjournment would be granted. The matter was listed next on May 10, 2022.
On May 9, 2022, the Centre approached the court and filed a fresh affidavit, a day before the next listing. They urged the Supreme Court to not waste their time in this matter as the Prime Minister has expressed that during the period of 'Azadi Ka Amrit Mahotsav' (75 years of independence) and they will deal with it.
On May 10, 2022, the Supreme Court asked the Centre whether the operations under Sedition law, Section 124A of the Indian Penal Code, could be paused until the re-examination of this provision is completed by the Union government. The court emphasised that a quantifiable time period must be committed for such re-examination of Sedition law. Meanwhile, a directive could be issued to the states to deal with the ongoing and pending cases. When the SG asked for time, they were given 24 hours to file a response answering the issues raised.
On May 11, 2022, a bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli heard the matter concerning constitutionality of Sedition, Section 124A of IPC. As per the order:
a. The interim stay granted in W.P. (Crl.)No.217/2021 along with W.P.(Crl.)No.216/2021 vide order dated 31.05.2021 shall continue to operate till further orders.
b. We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.
c. If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.
d. All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused.
e. In addition to the above, the Union of India shall be at liberty to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC.
f. The above directions may continue till further orders are passed.
The matter is listed to be heard in the third week of July, 2022.