Supreme Court to consider whether constitutional challenge to S. 124A IPC should to be referred to larger bench

Read Time: 08 minutes

A Supreme Court bench headed by Chief Justice of India Justice NV Ramana and consisting of Justices Surya Kant and Hima Kohli will, on Tuesday (May 10, 2022), consider whether the challenge to the constitutional validity of Section 124A of the Indian Penal Code, which penalises the offence of Sedition, requires consideration by a larger bench.

The court was of the view that the issue pertaining to constitution of the bench must be considered as the present plea is in the teeth of a five-judge bench judgment of the Apex Court in Kedar Nath Singh Vs State of Bihar which upheld the validity of Section 124A.

When the matter came up for hearing, SG Tushar Mehta, appearing for the Centre, submitted that while he is conscious that the court had asked the Centre to file its stand on the matter, they have not been able to file it as the draft reply is pending consideration before the competent authorities.

He further submitted that many fresh petitions challenging the law have been served on the Centre in the last two days and they have to be replied to. The CJI, at this point, remarked that a notice was issued in the instant petition almost 9-10 months ago and that this being a question of law can be argued without the counter of the Centre. The SG replied that it would not be appropriate for him to argue without the stand of the Centre considering the legal issue involved.

The bench then asked Attorney General KK Venugopal for his stand on the matter. The AG informed the bench that his stand on the matter might not be aligned with that of the government as he was issued a separate notice to appear before the court as the Attorney General.

The AG remarked, “Recently somebody has been detained under this section because they wanted to recite Hanuman Chalisa. The court has to consider what is permissible and what comes under the freedom of speech.”

The bench then asked Sr. Adv. Kapil Sibal, who was appearing for the petitioners whether the issue needs to be referred to a larger bench. Sibal replied that Kedar Nath was decided during another era of constitutional jurisprudence and that there has been a sea of change in the law now. He added that the courts need not go by the precedents when it comes to referring matters to a larger bench as the court is capable of setting precedents.

Justice Surya Kant, at this point, asked all the counsel to point out a single instance where a three-judge bench struck down a law that was upheld by a five-judge bench.

To this, Gopal Shakarnaryanan, Sr. Adv, remarked that in the judgment of Lily Thomas, a two-judge bench struck down a law that was approved by a five-judge bench.

Court, on hearing the parties, stated that it had heard the counsels at length. Court noted that the Solicitor General of India wants to file a counter affidavit in the matter, and therefore permitted him to do so by Monday morning. Court, however, made it clear that no further adjournments will be granted in the matter.

Court further asked the parties to file written submissions on reference to a larger bench by Saturday and adjourned the matter to Tuesday (May 10, 2022) for hearing on the issue of referring the matter.

On the last date of hearing, the Supreme Court had allowed the Central Government to file its response in a batch of petitions and had listed the matter for a final round of hearing on May 5. Earlier, the Court had issued notice and had asked the petitioner to serve a copy of the petition to AG Venugopal