The Supreme Court on Tuesday referred to a five-judge constitution bench, a batch of 16 petitions, challenging the constitutional validity of the colonial era sedition law – Section 124A of the Indian Penal Code – on the touchstone of the right to equality before law (Article 14) and the right to protection of life and personal liberty (Article 21) of the Constitution.

Referring the challenge to the validity sedition law to a five-judge constitution bench, Chief Justice DY Chandrachud heading a bench also comprising Justice JB Pardiwala and Justice Manoj Misra said that the constitution bench will also look into the “correctness” of 1962 five-judge constitution bench judgment – which is described as Kedar Nath Singh judgment – that had upheld the validity of the Section 124A IPC on the grounds whether it violates Article 19(1)(a) guaranteeing freedom of speech and expression and Article 19(2) imposing restrictions on free speech and expression.

The bench also noted that when, in 1962 a five-judge constitution bench had upheld the Section 124A of IPC in the context of the Article 19(1)(a), there was no coalesce between Article 14 and Article 19(1)(a) – which is a later development of Indian jurisprudence expanded by the subsequent judgments in Maneka Gandhi and other cases.

The apex court also noted the submission by senior advocate Kapil Sibal, appearing for one of the petitioners, who said that in the Kedar Nath Singh judgment, the constitution bench in 1962 equated government with the State – two distinct entities – and this, in itself, was sufficient to refer the challenge to the constitutional validity of the Section 124A to a constitution bench, preferably to a seven-judge bench.

Sibal said that Section 124A speaks about the government as it says “Whoever … attempts to excite disaffection towards, the Government established by law” but 1962 judgment equates government with the state under Article 19(2), which says that “Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law …. (to) imposes reasonable restrictions on the exercise of the right … in the interests of [the sovereignty and integrity of India], the security of the State …”

Sibal read a portion of Kedar Nath Singh judgment to buttress his point that in 1962 the constitution bench erred in equating government with the State.

The bench further noted that the bill relating to the proposed law that is now before the Parliamentary Standing Committee, would have a prospective application and the cases that are now registered under prevailing Section 124A would continue to survive and will be prosecuted under the prevailing sedition law.

Sibal said that the new draft law was “more draconian” then the prevailing “draconian” Section 124A that is under challenge.

Stating that the proposed new law cannot be effective retrospectively, Chief Justice Chandrachud said so long 1962 Kedar Nath Singh judgment holds the field, Section 124A is valid. We are not planning to do away with 124A but modify it.

As bench was urged to straight away refer the challenge to Section 124A IPC to seven-judge constitution bench, Chief Justice Chandrachud said: “We cannot doubt the validity of 124. Refer it to five-judge constitution bench that will look at it in the context of the development of the law (since 1962), then it can be decided whether it would go to seven-judge bench.”

The court also noted submission that till 1973, the sedition law was not a cognizable office and became so thereafter.

Sibal told the bench: “Please note that from 1973 it was made a cognizable offence before that it was not. Therefore, they started acting against the people.”

Referring the challenge to the validity of Section 124A to five-judge constitution bench, the bench today said thar it was not inclined to accept submission by the Attorney General R Venkataramani and the Solicitor General Tushar Mehta to keep in abeyance the adjudication of the challenge to Section 124A till the new law, that is currently before the Parliamentary Standing Committee (PSC), is deliberated and takes shape.

Attorney General Venkataramani said that the pronouncement of the top court on the validity of the Section 124A IPC would have a bearing on the new law whose draft is now before the parliament.

Attorney General Venkataramani said, “The law that the top court will lay will have a bearing on the law before the parliament.”

Giving a political twist to the argument by Sibal that the proposed new law is “more draconian” than its present version, Solicitor General Mehta countered “Earlier government could have changed the law, the draconian law, but they missed the opportunity.”

As Solicitor General said that Section 124A was made cognizable in 1973, the Chief Justice Chandrachud said he has not missed the point he (SG) was making.

Referring to the submission of Attorney General and the solicitor General to defer the reference to a five-judge constitution bench on the validity of Section 124A, Chief Justice Chandrachud said that pendency of the bill relating to new law will “not obviate the need to adjudicate the validity of 124A” as new law be effective prospectively and not retrospectively.

“The constitution point of validity of Section 124 has to be decided”, CJI said.

Earlier, the Supreme court on May 11, 2022, had brushed aside the Centre’s opposition to putting the sedition law on hold, the top court had restrained the Centre and the State governments from registering fresh cases invoking the sedition law and put in abeyance all the proceedings pending before different courts across the country in the cases rooted in the offences under section 124A IPC including ongoing investigations.

The top court today was hearing a batch of petitions, which now goes to the constitution bench, both by the NGOs and individuals challenging the constitutionality of Section 124A of the Indian Penal Code.

The petitioners include NGOs Editors Guild of India, Peoples Union for Civil Liberties, Journalist Union of Assam, former Union Minister Arun Shourie, TMC Lok Sabha member Mahua Moitra, senior editor Patricia Mukhim, former army Major General SG Vombatkere, Anil Chamadia, Upendra Nath Dalai, Suresh Kumar @ Suresh Dravid and Abhijit Kumar Chattopadhya.

Besides NGOs and individuals, two Andhra Pradesh broadcasting companies – Aamoda Broadcasting Company Private Limited, and Shreya Broadcasting Pvt. Ltd, too are petitioners. They have made Andhra Pradesh government as respondent.