Until you reconsider sedition law, what of pending, future cases: SC asks Centre

A three-judge bench, comprising Chief Justice of India N V Ramana and Justices Surya Kant and Hima Kohli, said petitioners had raised the contention that “if we grant adjournment, how to protect the interests of people who are already booked under Section 124A as well as in future if this provision can be kept in abeyance for further time till the reconsideration takes place. The Solicitor General seeks some time to get instructions. List the matter tomorrow.”

“Mr Mehta, we are making it very clear. You want to take instructions, we will give time till tomorrow morning… Our specific query is on two issues. One is about the pending cases and how the government will take care of future cases pending consideration of the law,” the CJI told Solicitor General Tushar Mehta who appeared for the Centre.

Senior Advocate Kapil Sibal, appearing for the petitioners, objected to the Centre’s request and urged the court to “go ahead with the matter”: “It’s for the judiciary to decide whether a law is constitutional or not. We can’t wait for what they (legislature, executive) will do.”

Earlier, Justice Surya Kant asked the Solicitor General, “Mr Mehta, you will take two months, three months, whatever time, we do not know ultimately… Till this is cleared, why don’t… you, as a Central government, through your Ministry issue a direction to the states that matters be kept in abeyance till that time.”

Mehta said, “I can discuss with the government. There can be guidelines.”

Justice Surya Kant said, “That’s what we are saying, that you can issue a direction to the state governments… We also presume that there may be a serious offence tomorrow. There are certain pockets which are very sensitive as far as the nation is concerned. Assuming that something happens there, there are other penal provisions which can take care of the situation. It’s not that the law enforcement agencies will be helpless.”

Stating that it is “fully cognizant of the various views” being expressed on the subject, the Centre, in an affidavit Monday, told the bench that it “has decided to re-examine and re-consider the provisions of Section 124A” and urged it to defer hearing on petitions challenging the Constitutional validity of the law until such an exercise is carried out “before an appropriate forum”.

In its affidavit, the Ministry of Home Affairs said that Prime Minister Narendra Modi has “periodically, in various forums, expressed his unequivocal views in favour of protection of civil liberties, respect of human rights, and giving meaning to the constitutionally cherished freedoms by the people of the country”.

Referring to the affidavit Tuesday, Mehta told the court “If your lordships can defer… that’s the request which we have made on affidavit”.

Sibal objected: “Each institution does its job. It’s for the legislature to frame a fresh law if it so wishes, it’s for your lordships to decide whether it is constitutional or not. But merely because the legislature has the intention of going through a legal process which may take 6 months, 1 year, your lordships cannot wait because we have challenged the present provision. If the provision will be changed, that may also be challenged. It’s for them to decide how to change it, when to change it and what manner to change it. That’s their plenary power. But that cannot await your lordship’s exercise of jurisdiction under the Constitution.”

“So I am sorry to say that should never have been said. Because that’s their privilege, their entitlement to frame a new law. They are even entitled to say this is bad law. But that’s not the point. Today, we are dealing with a law which needs to be dealt with under the Constitution. And your lordships will not await another jurisdiction to decide first before your lordships decide. That’s not what the Constitution says… legislature to make laws, executive to take decisions. It’s for the judiciary to decide whether a law is constitutional or not. We can’t wait for what they will do. That’s not the job of this court. So I take strong objection to this affidavit. We want to go ahead with the matter.”

The CJI reminded Mehta that the court had issued notice “long back, almost 8-9 months ago” and that he had also argued that it is good law and there is no reason to refer to a larger bench. Referring to the affidavit conveying the government decision to reconsider the provision, the CJI asked “how long will you take for reconsideration?”.

Mehta said the law has been in operation for more than 100 years and that cognisance was taken as soon as notice was issued by the court. He said he was asked to reply on two aspects — the question of reference to a larger bench and the stand of the government. The question of reference, he said, is in the written submission in which it is said that the 1962 ruling in upholding the constitutional validity of the provision is good law and needs no reference, while the affidavit has the government stand.

On how long the exercise would take, he said, “I may not be able to give an accurate reply. The process has started. That’s what I can say.”

The CJI said “what we feel is, when the state is saying that something we are examining, we want to do it, it appears that we should not be unreasonable” and “so far as the request is concerned, let us see how much time we will give, what to do. That we will decide.”

Sibal said even if there is a new law, there are pending prosecutions which have to be decided under the existing law. Justice Surya Kant said the court is not disposing the matter, but keeping it pending. Sibal said, “In the meantime, people are getting arrested on a daily basis.” The CJI assured that the court will look into the concern.

Sibal said Jawaharlal Nehru too wanted to get rid of the IPC section on sedition. “We are in the post-Constitution era. Pandit Jawaharlal Nehru had said that this provision is obnoxious and the sooner we get rid of sedition the better,” he said.

Mehta was quick to respond: “What Nehru couldn’t do, the current government is doing. We are trying to do what Pandit Nehru could not do then.” Sibal did not agree: “You are not doing that. You are supporting the law. You are saying all is good, Mr Mehta.”

Senior advocate Gopal Sankaranarayanan, also appearing for the petitioners, referred to a Constitution bench ruling which said affidavits of the executive cannot speak for Parliament and, therefore, the government’s affidavit cannot say what Parliament may do with regard to Section 124A. He said that in the privacy case as well as the marital rape case, the government had a similar stand.

The CJI said the court has to look into views of both sides, and went on to refer to the Centre’s affidavit about the PM’s views on the subject. “We will definitely take into consideration that they are doing a serious exercise on this issue… We should not appear to be unreasonable,” he said.

Turning to the Solicitor General, he said “there are concerns” about pending cases and future cases in which the provision may be misused. He referred to Attorney General K K Venugopal’s submission about sedition being imposed on two legislators in Maharashtra for chanting Hanuman Chalisa and asked how the government is going to prevent these things.

Mehta replied that filing of FIRs in such matters and investigation are being done by the states and not the Centre. He said that in case of misuse, there are constitutional remedies.

But the CJI said the court can’t ask each citizen to go to court and be in jail for months. He said even the government is speaking about human rights and civil liberties.

Assuring the court that he will take instructions from the government on the queries, Mehta said “it would really be hazardous as an officer of the court to say henceforth, do not apply a penal provision. We do not know the facts, we do not know the gravity of what is going to happen.”

The bench pointed out that it was speaking only about Section 124A and not any other offence.

“That’s also a penal offence,” responded Mehta, adding “I don’t think in the history of this country, your lordships have passed any order where a penal law is not permitted to be used.”

Justice Kohli said that’s why Justice Surya Kant “indicated to you why don’t you, as the Centre, indicate to the states, because you yourselves said it is for the states to take the call… that please, in the meantime, since we are applying our mind on it, do something not to press it under this provision… So it is not as if the court on its own is saying that.”