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.
On September 19, 2022, the bench of the Justice DY Chandrachud and Justice Hima Kohli ordered the tagged matter, SLP (C) No.16111/2022, to be listed on September 23, 2022. In the meantime, the proceedings before the Divisional Commissioner may continue, but no final order shall be passed till the next date of listing.
On September 23, 2022, in the tagged matters, SLP (C) No.16111/2022 and 16872/2022, notice was issued, returnable on 21 October 2022. Senior Counsel Mr Arvind Minocha with AOR Mr Ashutosh Kumar, accepted notice on behalf of the first respondent in SLP(C) No 16111 of 2022 and the fifth respondent in SLP(C) No 16872 of 2022. Reply, if any, be filed.
In the meantime, the proceedings before the Divisional Commissioner may continue, but no final order shall be passed till the next date of listing. In order to facilitate the final disposal, learned counsel for the contesting parties shall file brief notes of submissions before the next date of listing which shall also be emailed to cmvc.dyc@gmail.com.
On October 10, 2022, Chief Justice and Justice Ravindra Bhat, allowed WP(C) 1279/2021 and listed the petition along with WP(C) 682 of 2021 (SG Vombatkere v Union of India) and connected cases, if any. The bench also listed WP(C) 802/2021 with WP(C) 773 of 2021 (Common Cause case against Sedition) and connected cases, if any, on 31.10.2022.
On October 13, 2022, WP (Cr) 408/2022 was mentioned and the Chief Justice and Justice Bela M Trivedi listed the matter with WP (C) 682 of 2021 and connected cases on 31st October, 2022.
On October 21, 2022, Chief Justice and Justice Hima Kohli listed the tagged matters, SLP (C) No.16111/2022 and 16872/2022, on November 7, 2022.
On October 31, 2022, Chief Justice, Justice S Ravindra Bhat and Justice Bela M Trivedi heard the matter.
Mr. R. Venkataramani, learned Attorney General for India submitted that the directions dated 11.05.2022
engaging the attention of the relevant authorities
directions issued by this Court in its order dated , the matter is still . He therefore submits that some additional time be granted so that appropriate steps can be taken. It is also submitted that appropriate directive in terms of direction (e) in paragraph 8 of the above order dated 11.05.2022 has already been issued by the Central Government which shall be placed on record. He assures the Court that in view of the interim directions issued by this Court in paragraph 8 of its order dated 11.05.2022, every interest will be protected and as such there would be no prejudice to anyone. At his request, we adjourn these matters to 09.01.2023.
It is also been brought to our notice that in some of the matters listed today, this Court has not yet issued notices. Let appropriate notices returnable on 09.01.2023 be issued in those matters.
Mr. Arvind Kumar Sharma, learned Advocate-on-Record appearing for the respondent-Union of India, accepts notice on behalf of the Union of India. Let paper-books of the writ petitions be served upon the Central Agency within a week. Appropriate affidavits and response shall be filed within six weeks from today. Rejoinder, if any, be filed within two weeks’ thereafter.
On 20th February 2023, upon hearing the counsel, the court comprising of a bench made up of the Honourable Chief Justice of India, Justice Pamidighantam Sri Narasimha, and Justice J.B. Pardiwala listed the Special Leave Petition on a non-miscellaneous day on 14 March 2023.
On 1st May 2023, Mr. R. Venkataramani, Attorney General for India, in pursuance of the order dated 11 May 2022, stated that the Government of India has initiated the process of re-examining the provisions of Section 124A of the Indian Penal Code of 1860 and the consultations are at a substantially advanced stage. Accordingly, on request of the Attorney General for India, the court comprising of a bench made up of the Honourable Chief Justice of India and Justice J.B. Pardiwala listed the matter for further hearing on 8th August 2023.
On 12th September 2023, the Supreme Court bench comprising the Chief Justice Dr. D. Y. Chandrachud, Justice J. B. Pardiwala and Justice Manoj Misra directed that the matter to be heard by a larger bench of five or more Judges of the Supreme Court. The bench observed that the submissions which have been urged on behalf of the petitioners would warrant consideration by a bench of at least five Judges of the Supreme Court.
Mr. R Venkataramani, Attorney General of India and Mr. Tushar Mehta, Solicitor General of India requested the Court to defer considering whether a reference should be made to a larger bench, since Parliament is in the process of re-enacting the provisions of the Penal Code and the Bill has been placed before a Standing Committee.
However, the Court rejected the request for deferring the consideration of the constitutional challenge in this batch of matters. The Court noted that the provisions of Section 124A of the IPC continue to remain on the statute book and even if the new law which is proposed to be placed by the Government before the legislature results in a modification of the existing provision of Section 124A, there is a presumption that a penal statute would have prospective and not retrospective effect. The Court further remarked that the existing prosecutions under Section 124A will likely be governed by that provision.
The Court noted:
“Consequently, the validity of the prosecutions which have been launched or would be launched so long as Section 124A continues to remain on the statute would have to be assessed under it. The issue of the validity of the provision for the period that it continues to operate would, therefore, need to be determined.”
The Court observed that the judgment of the Constitution Bench in Kedar Nath Singh (supra) held that the provisions of Section 124A would be consistent with Article 19 (1) (a). There was no challenge on the ground that Section 124A violated Article 14 nor did the Constitution Bench have occasion to consider the validity of the provision against a constitutional challenge on the basis of Article 14.
“The position as it has evolved in constitutional jurisprudence is that the fundamental rights do not exist in silos. There is, in other words, a coalescence of several of the rights protected by Part III. Article 14, which presents an overarching principle of reasonableness permeates Articles 19 and 21 as well,” the Court said.
Thus, the Court opined that the appropriate course of action for a three Judge Bench of this Court would be to direct that the papers be placed before the Chief Justice of India so that, if so considered appropriate, the batch of cases can be heard by a Bench of five or more Judges, since the decision in Kedar Nath Singh’s case (supra) was rendered by a Constitution Bench.
The court ordered to de-tag SLP (C) Nos. 16872 and 16111 of 2022 and matter to be listed on 31 October 2023.
On November 22, 2023, in order to facilitate the final hearing before the Constitution Bench, the Court appointed Mr Prasanna S and Ms Pooja Dhar as nodal counsel. The Court directed that the nodal counsel shall prepare a common compilation of case law, documents and written submissions filed by the parties in terms of the Circular dated August 22, 2023 issued for regulating the course of submissions in larger Bench cases. Parties shall file all submissions by December 31, 2023 with the nodal counsel.
It was further directed that the common compilation shall be e-filed on or before January 9, 2024. The common compilation shall be made available to all the parties. The Court directed the Registry to notify the date for hearing of the reference in the month of January 2024.
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