Mere 'academic challenge' to statutory provision, without cause of action: Centre defends validity of Sedition law in Supreme Court

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The Centre has told Supreme Court that the binding constitution bench judgment [Kedar Nath Singh Vs. State of Bihar] does not need reference merely because "some Petitioners have laid down an academic challenge to a statutory provision without any cause of action".

Kedar Nath Singh vs State of Bihar [1962] had upheld constitutional validity of Section 124A of Indian Penal Code (penalising the offence of Sedition). It is the Centre's position that it requires no reconsideration, since it is a binding precedent.

Contending that individual instances of misuse of provision cannot be a ground for reconsideration, Centre has submitted that the remedy, in such cases, would lie in preventing such abuse on a case-to-case basis rather than doubting a long standing settled law declared by a constitution bench since about six decades. 

While thrusting upon a reasonable interpretation of the provision, the Centre states that though criticism on political matters is not seditious, the test is the manner in which such criticism is made. 

"Candid and honest discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case when the natural consequence of the prisoner's conduct is to promote public disorder," Centre has told Supreme Court

While stating that the binding precedent [in Kedar Nath] has taken into account freedom guaranteed under Part III of the Constitution of India, it has adopted undertaken a balanced outlook. "Freedom has to be guarded against becoming a licence for vilification and condemnation of the Government established by law, in words which incite violence or have the tendency to create public disorder," Centre adds.

On May 5, a Supreme Court bench headed by CJI NV Ramana and consisting of Justices Surya Kant and Hima Kohli said that it would, on Tuesday (May 10, 2022), consider whether the challenge to the constitutional validity of Section 124A, 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 was 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.

In this context, the Centre has submitted that this is good law which, does not require reconsideration, even if the argument canvassed is the development of law after a subsequent ruling ruling [Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248].

The Centre has said that if subsequent judgments on other issues are taken as a ground for long-standing precedent to refer to a larger bench, then by that logic,  "every judicial pronouncement which is pre RC Cooper (supra) judgment, will have to be re- considered and re-examined". 

Further to this, Centre has said that reference to a larger bench, it will be absolutely necessary for the bench of three judges to record its satisfaction that the ratio in Kedar Nath Singh is so patently wrong that it needs reconsideration by a larger bench.

"a legal system firmly grounded in the common law principle of binding precedents and stare decisis, the grounds for reconsideration of a judicial precedent, ought to be clear, cogent and weighty," Centre has said.

On the last hearing, Attorney General KK Venugopal had 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.

AG had 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.”

In April, the Supreme Court had allowed the Central Government to file it's response in a batch of petitions challenging constitutionality of Section 124A which penalises the offence of Sedition and listed the matter for 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.