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 three-judge 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 case-to-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 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 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 of the matter on Thursday, also threw his weight behind the Kedar Nath judgment to argue that the contours of the penal 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 five-judge bench defined the scope of Section 124A. It held that Section 124A only penalised words that reveal 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 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.