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Sedition law | Supreme Court refers petitions challenging validity of Section 124A to Constitution B

In a significant development today, the Supreme Court of India has chosen not to wait for Parliament's decision on the Bharatiya Nyaya Sanhita Bill. This draft law aims to replace the archaic British-made penal code from 1860 and has been a subject of debate. Instead, the Supreme Court has referred petitions challenging Section 124A, which deals with sedition in the Indian Penal Code, to a Constitution Bench.

A three-judge Bench, led by Chief Justice of India DY Chandrachud, rejected the government's suggestion to postpone the case and opted for a larger Bench of five judges to hear the matter.

Attorney General R. Venkataramani argued that a "substantive hearing" of the case at this juncture would be premature since the Bharatiya Nyaya Sanhita Bill is currently under consideration by a parliamentary standing committee and may be discussed in the winter session, alongside the Bhartiya Nagrik Suraksha Sanhita and Bharatiya Sakshya Bills. These bills are intended to replace the Code of Criminal Procedure and the Indian Evidence Act, respectively.

Solicitor General Tushar Mehta, representing the Union, urged the court not to preempt the Parliament's decision.

However, the court's decision not to delay the case is based on a well-established legal principle that a new penal law would apply only to future cases. Even if the Bharatiya Nyaya Sanhita Bill becomes law, prosecutions under Section 124A would continue for existing cases unless the new law explicitly states otherwise or the Parliament decides otherwise. Chief Justice Chandrachud clarified that a new penal law cannot be applied retrospectively.

Notable senior advocates, including Kapil Sibal, Arvind Datar, and Gopal Sankaranarayanan, argued on behalf of the petitioners that expressions of disaffection toward the government should not necessarily be treated as seditious. They argued that the state should not be equated with the government of the moment.

Mr. Sibal pointed out that the proposed replacement for Section 124A, known as Section 150 in the Bharatiya Nyaya Sanhita Bill, might be even more stringent, describing the offense as any act "endangering sovereignty, unity, and integrity of India."

Mr. Mehta countered by questioning why the previous government had not eliminated Section 124A if it was considered "draconian." He emphasized that the current government is taking steps to do so.

However, the court refrained from commenting on the Bill and its provisions, stating that they would not examine it as it is still in the proposal stage and not yet a law.

Advocate Kaleeswaram Raj argued that referring the matter to a five-judge Bench was unnecessary because the Centre had previously expressed doubts about the constitutionality of Section 124A in a court affidavit.

In response, Chief Justice Chandrachud explained that any re-evaluation of Section 124A would need to consider a 1962 Constitution Bench judgment in the Kedar Nath Singh versus State of Bihar case, which upheld the legality of Section 124A while limiting its scope to activities involving incitement to violence or the intention or tendency to create public disorder.

The Chief Justice clarified that the Kedar Nath judgment was limited to the impact of sedition on free speech and expression, enshrined in Article 19(1)(a) of the Constitution, and did not address its effect on fundamental rights to life (Article 21) and equal treatment (Article 14). Therefore, a five-judge Bench is necessary to re-evaluate the 1962 judgment, considering the significant developments in recognizing and evolving new rights since then.

In conclusion, the Chief Justice explained that as a three-judge Bench, they cannot review the Kedar Nath judgment. Instead, they have decided to let a five-judge Bench re-examine the 1962 judgment. If this Bench concludes that modifications are unnecessary and sends it back, the court will be bound by it. However, the five-judge Bench also has the authority to refer the matter to a seven-judge Bench or make modifications to the interpretation of Section 124A to align it with current circumstances.