By Ritika Jain
In a significant development, the Supreme Court referred the batch of pleas challenging the validity of the sedition law to a Constitution Bench of “at least five judges”. Chief Justice of India DY Chandrachud said the bench would also decide if the top court’s 1962 verdict upholding the sedition law required reconsideration.
A larger bench was needed because the Kedarnath judgment was delivered by a five-judge bench. It would be inappropriate for any bench of a smaller composition to decide on this issue, the top judge observed.
The Kedarnath Singh judgment was decided on a narrow understanding of fundamental rights that were prevalent at the time, the top court said. Sedition was examined only in the context of free speech, the bench further observed. Since then, several judgments have been passed which say Articles 14 (right against discrimination), 19 (free speech), and 21 (right to life) must operate in harmony, it added.
In referring the matter to the constitution bench, the three-judge bench which also comprised Justices JB Pardiwala and Manoj Mishra denied the Centre’s request to defer the hearing since a new law that proposes to replace the Indian Penal Code was going to be introduced.
“What will happen? CJI Chandrachud said. “The new law will be prospective. So what happens to [sedition] cases where prosecution has happened? I know there is an interim order, so they are protected. But the question of law still needs to be answered,” he added.
Responding to Solicitor General (SG) Tushar Mehta’s argument that the BJP-led government was in the midst of changing the law governing criminal jurisprudence, senior advocates Kapil Sibal and Gopal Sankarnarayan, representing parties who have challenged the sedition law, argued that sedition exists in the new bill as well – just under a new name.
The new bill, they said was “even more draconian”. Reading out the text of the incumbent law—Section 124A—Sibal said the idea of sedition penalizing disaffection to the government and the state was “fundamentally wrong”.
“…The state is not government and the government is not state,” Sibal said.
The Supreme Court on May 11 kept the law in abeyance and directed the Centre to file new cases under this section.
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