The Supreme Court on Tuesday referred to a Constitution bench of at least five judges a batch of pleas challenging the constitutional validity of the IPC provision on sedition, a month after the Centre introduced in Parliament bills to replace the colonial-era penal statutes IPC, CrPC and the Evidence Act, proposing among other things the repeal of the sedition law.
A bench headed by Chief Justice D Y Chandrachud declined the Centre's request to defer the issue of reference to a larger bench as Parliament is in the process of re-enacting the provisions of the Indian Penal Code (IPC) and the Bill has now been placed before a standing committee.
"We are not inclined to accept the request for deferring the consideration of the constitutional challenge in these batch of matters for more than one reason," said the bench, also comprising Justices J B Pardiwala and Manoj Misra.
The bench observed that section 124A (sedition) of the IPC continues to remain on the statute book, and even if the new Bill becomes a law, there is a presumption that any new law in the penal statute will have prospective and not retrospective effect.
"Consequently, the validity of the prosecution which would be launched so long as section 124A continues to remain in the statute, will have to be assessed on that basis," it said.
The court noted the constitutional validity of section 124A of the IPC was tested by the apex court on the basis of a challenge that it was ultra vires Article 19(1)(a) of the Constitution in the 1962 judgement of Kedar Nath Singh versus State of Bihar.
Article 19(1)(a) relates to the right to freedom of speech and expression.
The 1962 judgement had upheld the constitutionality of Section 124A and held it was in harmony with Article 19(1)(a).
The bench observed it needs to be noted that when the five-judge constitution bench had ruled on the validity of Section 124A in 1962, the challenge to it on the ground that it violated Article 19(1)(a) of the Constitution was tested only with respect to that Article.
It said at that time there was no challenge on the ground that section 124A of the IPC violated Article 14 (equality before law) of the Constitution.
The bench noted the submission of the counsel representing the petitioners that it would be necessary to re-evaluate the validity of Section 124A of the IPC as the provision has only been tested with respect to Article 19(1)(a) of the Constitution.
The top court said the appropriate course of action for a three-judge bench would be to direct that the papers be placed before the CJI so the pleas could be heard by a bench of at least five judges since the 1962 decision was by a constitution bench.
"We accordingly direct the registry to place the papers before the CJI so that appropriate decision can be taken on the administrative side for the constitution of a bench of a strength of at least five judges," the court said.
The apex court had on May 1 deferred the hearing on these pleas after the Centre said it was at an advanced stage of consultation on re-examining the penal provision.
On August 11, in a landmark move to overhaul colonial-era criminal laws, the Centre had introduced in the Lok Sabha three bills to replace the IPC, CrPC and the Indian Evidence Act, proposing among other things the repeal of sedition law and introducing a new provision with a wider definition of the offence.
The top court had on May 11 last year put on hold the penal law on sedition till an "appropriate" government forum re-examined it and directed the Centre and states to not register any fresh FIR invoking the provision.
Besides the lodging of FIRs, ongoing probes, pending trials and all proceedings under the sedition law across the country will also be in abeyance, the top court had said.
The law on sedition, which provides for a maximum jail term of life under section 124A of the IPC for creating "disaffection towards the government", was brought into the penal code in 1890, a full 57 years before Independence and almost 30 years after the IPC came into being.
