Sedition law: Govt is trying to do what Pandit Nehru could not do then, says Solicitor General Tushar Mehta

New Delhi: The Supreme Court on Tuesday asked the Centre to inform it by Wednesday whether the registration of future sedition cases can be kept in abeyance till it completes the reconsideration process with respect to the sedition law. The bench posted the matter for hearing on Wednesday. 

A bench of Chief Justice of India NV Ramana, Justices Surya Kant and Hima Kohli also asked the Central government what it proposes to do about pending and future sedition cases as the Centre decided to re-examine the validity of Section 124A of the IPC, which criminalises the offence of sedition. The court was hearing a batch of pleas challenging the constitutional validity of the sedition law.

Solicitor General Tushar Mehta appearing for the Centre said he will discuss it with the government and suggested that there can be guidelines on the issue until the government reconsiders the issue. 

In a fresh affidavit, the Centre on Monday told the apex court that it has decided to re-examine and reconsider the provisions of Section 124A and requested it not to take up the case till the matter is examined by the government. 

At the outset, Solicitor General Tushar Mehta told the Supreme Court that the law requires reconsideration at the level of the executive because sovereignty and integrity of the nation are involved and sought deferment of the hearing of pleas.

Senior advocate Kapil Sibal, appearing for petitioners, opposed the Centre`s request saying that the Court should proceed to decide the validity irrespective of whether the government is examining the provision or not.

During the hearing, as the bench asked the Solicitor General how much time the government would take to complete the exercise, he replied that reconsideration of the law is in the process. "I wouldn`t be able to give an accurate time frame. The process has started. The court must have seen the tenor and spirit of the affidavit," the Solicitor General said.

Sibal said that the Centre wants to reconsider the sedition law but in the meantime, people are getting arrested under the law. The bench also highlighted the misuse of the sedition law and asked why the Centre doesn`t direct the state governments that matter under 124A to be kept in abeyance till the Centre finishes the process of reconsideration. 

"In the affidavit itself it is said that misuse of law is there, how will you address this?" asked the bench. CJI Ramana told Mehta, "There are concerns that this is being misused. Attorney General himself had said chanting Hanuman Chalisa is leading to such cases." To this, the Solicitor General replied that the filing of FIRs is by the state governments and the first limb of 124A is to protect the sovereignty and integrity of the nation. 

Govt is trying to do what Pandit Nehru could not do then

During the hearing, Sibal told the bench that then Prime Minister Jawaharlal Nehru had termed Section 124A as the most obnoxious provision aimed at stifling dissent and Mahatma Gandhi had termed this as the most potent weapon to silence opposition to the government.

Mehta said that this government is trying to do what Pandit Nehru could not do then. "What the government headed by Nehru Ji could not do, we are doing it now," the Solicitor General said.

In a fresh affidavit, the Centre said that Prime Minister Narendra Modi is of the firm view that the baggage of colonial-era laws, which outlived their utility, must be scrapped during the period of `Azadi Ka Amrit Mahotsav` (75 years of independence). In that spirit, the government of India has scrapped over 1,500 outdated laws since 2014-15, it said on Monday."

"The Government of India being fully cognizant of various views being expressed on the subject of sedition and also having considered the concerns of civil liberties and human rights, while committed to maintain and protect the sovereignty and integrity of this great nation, has decided to reexamine and reconsider the provisions of Section 124A of the Indian Penal Code which can be done only before the competent forum," the affidavit said while requesting the apex court to await the outcome of th Centre`s exercise to re-examine Section 124A.

Kedar Nath Singh v/s State of Bihar case

On Saturday, the Central government told the Supreme Court that the 1962 verdict of the five-judge Constitution bench case which upheld the validity of the offence of sedition under Section 124A of the Indian Penal Code, is binding and continues to be is a "good law and needs no reconsideration".

Solicitor General Tushar Mehta, representing the Centre, in the written submissions on Saturday said that the 1962 five-judge bench judgement of the top court in Kedar Nath Singh v/s State of Bihar case which upheld the validity of Section 124A of IPC has stood the test of time and applied till date in tune with modern constitutional principles.

It said the 1962 verdict is a good precedent and that it requires no consideration and isolated instances of misuse cannot be a ground to uproot the precedent that has withstood the test of time for over six decades.

The Centre further submitted that a three-judge bench cannot hear a legal challenge to the Constitutionality of Section 124A. Only a bench of co-equal strength of Kedar Nath Singh can pose any doubts on the verdict, the Centre stated while adding that thus, for reconsideration of Kedar Nath Singh judgement, the matter will have to be referred to a bench of five judges or more.

Earlier, the bench had said that it will first decide the issue of whether the petitions challenging the constitutional validity of Section 124A to be referred to the larger bench or not. Attorney General of India KK Venugopal had told the Supreme Court that the sedition law should not be struck down but there is a need for guidelines on this section. "What is permissible and what is impermissible and what can come under sedition need to be seen," Attorney General said.

Venugopal, while defending the constitutional validity of Section 124A and the Kedar Nath Singh judgement, said that it is a well-thought-out one and needs to be upheld. 
Venugopal had argued that the misuse of sedition law has been brought under control. Various petitions were filed in the apex court challenging the constitutional validity of sedition law. The pleas were filed by former army officer Major-General SG Vombatkere (Retd), former Union minister Arun Shourie, NGO PUCL, Editors Guild of India, and Journalists Patricia Mukhim and Anuradha Bhasin among others.

Last year, CJI Ramana questioned the Central government on the requirement of sedition law even after 75 years of independence and observed that it was colonial law that was used against freedom fighters.While pointing out that sedition law was used against freedom fighters like Mahatma Gandhi and Bal Gangadhar Tilak, the apex court had asked Attorney General KK Venugopal, appearing for the Centre, why it can`t be repealed. 

It had observed that the Centre has repealed many stale laws and enquired why the government is not looking into repealing Section 124A (which deals with the offence of sedition) of the IPC.It had further said that the court was concerned about the misuse of such laws.

The CJI had said, "Use of sedition is like giving a saw to the carpenter to cut a piece of wood and he uses it to cut the entire forest itself". The top court had further told Attorney General that the conviction rate under Section 124A is very low. 

Section 124-A (sedition) under the IPC is a non-bailable provision. Earlier, a different bench of the top court had sought a response from the Centre on a plea challenging the Constitutional validity of sedition law, filed by two journalists -- Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla -- working in Manipur and Chhattisgarh respectively. 

Section 124 A of Indian Penal Code (IPC) 

According to indiankanoon.org, 124A- Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, 102 [***] the Government established by law in 103 [India], [***] shall be punished with 104 [im­prisonment for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine. 

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. 
Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. 
Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section, the website added.