Supreme Court of India | Photo: Mathrubhumi
New Delhi: The Supreme Court on Thursday said it would hear arguments on May 10 on the legal question of whether the pleas challenging the colonial-era penal law on sedition be referred to a larger bench and granted time to the Centre to file its response.
A special bench comprising Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli, meanwhile, was told by Attorney General K K Venugopal, who was assisting in his personal capacity, that the misuse of the provision as it happened against a Maharashtra MP for reciting 'Hanuman Chalisa' has to be stopped by laying down guidelines.
However, the top law officer said there was no need to refer the five-judge bench verdict of the top court in the Kedar Nath case in 1962 to a bench of five or seven judges.
A five-judge bench in the Kedar Nath Singh case in 1962 had upheld the validity of the sedition law while attempting to restrict its scope for misuse. It had held that unless accompanied by incitement or a call for violence, the criticism of the government cannot be construed as a seditious offence.
"Your lordships know what is happening in the country. Yesterday, somebody was detained under this Section just because they wanted to chant 'Hanuman Chalisa'. So guidelines have to be there, to prevent misuse. Referring the Kedar Nath verdict to a larger bench is not necessary. It is a well-considered judgment,” Venugopal said.
He was referring to MP Navneet Rana and her MLA husband Ravi Rana being booked for sedition in Maharashtra over the Hanuman Chalisa row.
“A law, which is fair on its face, will not become invalid and unconstitutional due to the abuse and implementation in violation of fundamental rights. In that case, the individual matters will have to be decided,” Venugopal said.
The bench commenced the hearing and heard arguments on a batch of pleas against the sedition law for some time before adjourning it to May 10.
Senior advocate Kapil Sibal, appearing as the lead counsel on behalf of the petitioners, said the reference to a larger bench may not be necessary.
He said a three-judge bench can still go into the issue ignoring the 1962 judgement of the five-judge bench in the light of subsequent developments in the fundamental rights jurisprudence.
“We will hear as to how you (Sibal) are prima facie going to establish that the matter does not need the reference to a larger bench,” the CJI said.
“As far as we have been able to understand the pleadings, in every petition, there is a prayer that re-consider Kedar Nath, overrule Kedar Nath and strike down section 124A,” the bench asked, adding whether a three-judge bench can do so in view of the fact that the 1962 verdict was of a five-judge bench.
Subsequent development in relation to the law does not pass a duty on to a three-judge bench, as part of the judicial propriety, to ignore the five-judge bench and pass the judgement on the issue, it said.
“I will persuade the court that this matter does not need to be referred to a larger bench. If the court does not agree then this can be referred to a five or seven-judge bench,” Sibal said, adding “Without dealing with the Kedar Nath or without looking at Kedar Nath, you can still strike down keeping in mind the sea change in the law.”
If the bench agrees then it can be done or if it thinks that a larger bench has to be set up, then it can also be done as the prayer to this effect was already there, the senior lawyer said.
“Validity of the section is an open vista. We will hear you on that, but we need to decide first whether we should hear it in the three, five, or seven-judge composition,” the bench said while adjourning the hearing to May 10.
At the outset, Solicitor General Tushar Mehta, appearing for the Centre, sought a few more days' time for filing the reply saying the draft response made by lawyers awaits approval by competent authority as the issue is of extreme importance.
Secondly, some fresh matters have been served recently and the contents of those pleas also needed a response.
“List this matter for next Tuesday at 2 pm. The Solicitor General is to file a counter (affidavit) by Monday. No further adjournments (will be granted),” the CJI said.
The bench, on April 27, had directed the Central government to file a reply saying it would commence the final hearing in the matter on May 5 and would not entertain any request for adjournment.
Concerned over the enormous misuse of the penal law on sedition, the top court in July last year had asked the Centre why it was not repealing the provision used by the British to silence people like Mahatma Gandhi to suppress the freedom movement.
Agreeing to examine the pleas filed by the Editors Guild of India and former Major General S G Vombatkere, challenging the Constitutionality of Section 124A (sedition) in the IPC, the apex court had said its main concern was the "misuse of law" leading to the rising number of cases.
The non-bailable provision makes any speech or expression that brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the government established by law in India a criminal offence punishable with a maximum sentence of life imprisonment.
While issuing notice on the petitions in July last year, the top court had referred to the alleged misuse of the provision and had asked if the “colonial-era law was still needed after 75 years of Independence.”