On September 12, a Supreme Court Bench comprising the Chief Justice of India D.Y. Chandrachud, Justices J. B. Pardiwala and Manoj Misra, referred the petitions challenging Section 124A IPC, making sedition an offence, to a constitution bench.
In the same order, the three-judge bench rejected the government’s plea to defer the hearing in light of the newly introduced criminal law Bill, the Bharatiya Nyaya Sanhita.
The petitioners include Major General S.G. Vombatkere (the lead petitioner in the case); two journalists, Kishore Wangkhemcha and Kanhaiya Lal Shukla (both having suffered by the wrongful application of law by the Manipur and Chhattisgarh governments respectively); the Editors Guild of India; Journalists’ Association of Assam; Arun Shourie; the People’s Union for Civil Liberties; Mahua Moitra, MP from the Trinamool Congress; Patricia Mukhim, editor of the Shillong Times; and Anil Chamadia, chairman of the Media Studies Group.
Section 124A seeks to punish one found guilty of sedition with imprisonment for life, to which a fine may be added, or with imprisonment which may extend to three years, to which a fine may be added, or with a fine. It defines sedition as bringing or attempting to bring into hatred or contempt or exciting or attempting to excite disaffection towards the Government established by law in India.
CJI, Chandrachud observed – while speaking at the convocation ceremony at the Maharashtra National Law University, Aurangabad – that in cases involving colonial-era laws like sedition, the question of whether justice is served depends on those wielding power. For the petitioners challenging afresh the validity of Section 124A – a colonial law, the CJI’s observation is of significance, as they expect the proposed constitution bench to not leave the question of justice in sedition cases to the vicissitudes of politics.
The Wire breaks down the issues in reference to the challenge to the sedition law, and also the import of what the CJI observed.
Why did the three-judge bench refer the case to a larger bench?
In 1962, in Kedar Nath Singh vs State of Bihar, the Supreme Court’s five-judge bench upheld the constitutionality of Section 124A IPC on the ground that it is a valid restriction on the right to freedom of expression only when the words are intended to disturb public peace by violence.
Therefore, the petitions challenging afresh the constitutionality of Section 124A – on grounds not anticipated in Kedar Nath Singh – must, in keeping with judicial propriety, be heard by a bench of equal strength. It is very likely that the five-judge bench, to be constituted by the CJI, will refer the new petitions to a seven-judge bench, which will then hear arguments for and against declaring Section 124A as unconstitutional. In view of the Supreme Court’s five-judge bench’s decision in Kedar Nath Singh, only a seven-judge bench can declare the provision as unconstitutional.
Senior advocate Kapil Sibal stressed the urgent need to hear the challenge against Section 124A citing several “pending prosecutions” against individuals. According to data captured by Article-14 in the report ‘A Decade of Darkness’, 867 cases under the Section were filed against 13,306 individuals in the country. Further, as the Times of India reported, citing data compiled by the National Crime Records Bureau (NCRB):
“A total 356 cases of sedition — as defined under Section 124 were registered and 548 persons arrested between 2015 and 2020. However, just 12 persons arrested in seven sedition cases were convicted in this six-year period.”
Although Sibal suggested that the constitutionality of sedition can either be evaluated by a five-judge bench or a division bench of the Supreme Court can hear the case without a reference, the three-judge bench decided in favour of referring it to a five-judge bench.
What are the fresh grounds raised by the petitioners?
Section 124A penalises individuals who “excite disaffection” against a “government established by law”. In Kedar Nath Singh, the Supreme Court observed that the “continued existence of the Government established by law is an essential condition of the stability of the State”. The petitioners in S.G. Vombatkere rejected this idea. They contended that the terms “state” and “government established by law” are separate. In essence, they expressed the stance that a “disaffection” towards the government was not equivalent to “disaffection” towards the State, and that both terms have to be construed separately.
CJI Chandrachud noted during the hearing of the case on September 12 that the judgment in the Kedar Nath Singh case did not distinguish between the state and government and construed these two words synonymously. As Article 19(2) dealing with reasonable restrictions on freedom of expression uses the word “state”, rather than “government”, Section 124A, as originally drafted, cannot be immune from challenge on the ground of being a reasonable restriction. The constraints imposed by Article 19(2) (“Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.”) will not apply to the provision if the bigger bench determines that the words “State” and “Government” are distinct. On this ground alone, Section 124A can be declared as unconstitutional, and the judgment in Kedar Nath Singh set aside.
Illustration: The Wire
The three-judge bench rejected the government’s plea to defer the hearing of the case in view of the new Bharatiya Nyaya Sanhita Bill, which purportedly repeals sedition as an offence. Why?
The Bharatiya Nyaya Sanhita Bill appears to do away with the offence of sedition; however, the Bill retains it with a more expansive definition of sedition as “acts endangering sovereignty, unity and integrity of India” and includes within its ambit secession, armed rebellion, subversive activities and “encouraging feelings of separatist activities”. The new provision, Section 150, enhances the minimum punishment from 3 to 7 years imprisonment and is likely to be, if enacted, more draconian than the provision under challenge before the Supreme Court.
The new provision drops the word “disaffection” and Explanation 1, which defines disaffection as disloyalty and all feelings of enmity. However, it merges Explanations 2 and 3 to Section 124A as follows:
“Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section”.
[The words “do not constitute an offence under this section” found in Explanations 2 and 3 to Section 124A are ironically missing in Section 150 – which may be unintentional]
The three-judge bench took note of Sibal’s submission that Section 150 of the new Bill is more draconian than Section 124A, and held that the new penal legislation brought in will not “obviate the need to adjudicate upon the constitutional validity of Section 124A” as penal legislations will not have a retrospective effect. Essentially, all pending prosecutions under Section 124A will continue even after the new penal legislation comes into application. Additionally, the bench agreed with Sibal that as long as the statute continues to exist, its constitutionality needs to be examined, and if declared unconstitutional, all pending cases under the provision will automatically be dropped as the provision will be considered to never have existed.
Furthermore, the bench stated on September 12 that Section 124A was a pre-constitutional enactment and thus does not carry the same presumption of constitutionality as carried by legislation that came into being after the enactment of the constitution. What is the doctrine of presumption of constitutionality?
The doctrine of presumption of constitutionality means that when a statute legislated by parliament is challenged, the judiciary shall defer to the legislature and the onus of proving the unconstitutionality of the provision rests on the petitioners.
As G.P. Singh writes in his book, Principles of Statutory Interpretation: “A statute is construed so as to make it effective and operative on the principle expressed in the maxim “ut res magis valeat quam pereat”.
There is, therefore, a presumption that the legislature does not exceed its jurisdiction, and the burden of establishing that the Act is not within the competence of the legislature, or that it has transgressed other constitutional mandates, such as those relating to fundamental rights, is always on the person who challenges its vires.
Thus as per the doctrine:
“Unless it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution it must be allowed to stand as the true expression of the national will.”
In essence, in order to ensure that the full extent of a statute is realised, there exists a presumption that the legislature does not act in an ultra vires manner, Additionally, since it is enacted by the legislature which comprises elected representatives of the people, it is considered a representation of the “national will’. However, this idea only becomes applicable to legislations that came into enactment after the adoption of the constitution and not retrospectively.
The three-judge bench’s drawing of attention to this aspect of Section 124A – being a colonial law, and therefore, not entitled to the protection of the doctrine of presumption of constitutionality – means that the burden of proving unconstitutionality would not be on the petitioners. Instead, it is the government which has to prove its constitutionality. This reversal of roles in constitutional litigation is likely to make the petitioners’ challenge easier, although the court would look for other valid grounds to strike it down – rather than the simple fact of its having been enacted during the colonial era.
The three-judge bench justified the reference to a larger bench on the ground that the bench in Kedarnath Singh could not have envisaged the developments in the law in later years, which would have a bearing on the validity of Section 124A. What are those developments in law, which forced the bench to justify a relook?
Petitioners in S.G. Vombatkere argued that Section 124A had only been tested on the touchstone of Article 19(1)(a) (“freedom of speech and expression”) in the Kedar Nath Singh judgment. They submitted that it would be necessary to test its compliance with Articles 14 and 21 of the constitution considering the significant evolution of these articles since.
The petitioners contended that section 124A was made cognizable by the Code of Criminal Procedure in 1973, an additional ground to justify its reexamination, as the Kedar Nath Singh bench held it constitutional when it was non-cognizable. As cognizable offences are crimes for which the police can make an arrest without a warrant or prior court permission, the instances of abuse of the provision against innocents, for whom the process itself became punishment, justified reconsideration of the Kedar Nath Singh judgment.
The doctrine of proportionality is one which evolved in the post-Kedar Nath Singh years. It means that the measures taken must be reasonable with respect to the desired results.
The three-judge bench observed on September 12 in its order:
“There was no challenge (in Kedar Nath Singh) on the ground that Section 124A violated Article 14 nor did the Constitution Bench (in Kedar Nath Singh) 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 Constitution of India.
What does “fundamental rights do not exist in silos” mean?
In Rustom Cavasjee Cooper vs Union of India (1970), popularly known as the bank nationalisation case, heard by 11 judges, 14 banks were proposed to be nationalised through an Ordinance. Cooper filed a writ petition under Article 32 alleging that the promulgation of the Ordinance had violated his fundamental rights. Cooper was not only the then director of the Central Bank of India Ltd., but he also owned shares in the Bank of India, Bank of Baroda, and the Central Bank of India.
The primary contribution of this case was the rejection of the “Mutual Exclusivity Theory” which had its genesis in A. K. Gopalan vs State of Madras, and which had been followed for 20 years prior to this case. The Supreme Court held in Cooper that it could not dismiss a petition that unequivocally demonstrated that people’s fundamental rights were being violated, based solely on technicalities. Just because a legislative measure violated a corporation’s rights, the court does not lack jurisdiction to defend the shareholder rights of the firm, the court held.
In Cooper, the court specifically overruled Gopalan and declared that even if a law satisfied the requirement of Article 31(2) (dealing with compulsory acquisition of property) it has to satisfy the requirement of Article 19(1)(f) (right to property) too. Article 31 and Article 19(1)(f) were repealed in the post-Emergency period. Thus the court held that if a tribunal is authorised by an Act to determine compensation for property compulsorily acquired without hearing the owner of the property, the Act would be liable to be struck down under Article 19(1)(f).
Previously, on the basis of the judgment in Gopalan, it was held in a long line of cases that each article guaranteed a distinct Fundamental Right. It meant that the legislation to be examined must be directly in respect of the rights mentioned in that sub-clause. But Cooper changed this interpretation on the ground that if an act of the executive, or a law is liable to be tested in terms of more than one Fundamental Right, it is better for the citizen.
In Maneka Gandhi vs Union of India And Another (1978), the petitioner alleged that the order denying her passport violated Article 14 and that the right to travel abroad was under the broad definition of personal freedom guaranteed by Article 21. The court ruled that there is a special connection between the provisions of Articles 14, 19, and 21. As a result, a law that restricts someone’s “personal liberty” must also pass the constitutional tests of Article 19 and Article 14 in addition to Article 21, and thus the court affirmed the idea that the various fundamental rights interact with each other and can not be interpreted in isolation.
The Maneka Gandhi case thus first gave birth to the doctrine of the Golden Triangle which represents the interconnectedness and dependency of these three fundamental rights. These three articles complement one another and offer a framework for defending the fundamental liberties and rights of every Indian citizen.
The Kedar Nath Singh bench did not have the benefit of applying these later developments in law to test the constitutionality of Section 124A, and therefore, its judgment deserves to be reconsidered and set aside by a larger bench.