The Supreme Court referred the batch of petitions challenging Section 124A of the Indian Penal Code to a bench of at least five judges. The cases have been referred to the Chief Justice on the administrative side to constitute the Bench.

The Bench of Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra said in the order that the Constitutional validity of Section 124A was tested in the Judgment in Kedar Nath Singh vs State Of Bihar, but at that point, the challenge was on the ground of violation of Article 19(1)a and the Constitutional Bench did not have the occasion to consider the validity on the ground of violation of Article 14.

The Court recorded the grounds of challenge to the provision and the plea of the Government that the reference should be deferred till the Parliament finalizes the proposed new law.

The Court said in the order that it is not inclined to accept the request of the Centre to defer the constitutional challenge. The Court added that the pending prosecution will proceed on the basis of the existing law and that there is a presumption that the new penal law will be prospective. The Court said that it would be appropriate for a three-judge bench to place the matter before the Chief Justice to constitute "a bench of at least five judges" since a bench of five judges had decided the Kedar Nath case.

At the beginning of the hearing, Senior Advocate Kapil Sibal appearing for one of the Petitioners submitted that the matter needs to be considered since states are pursuing prosecution on the basis of Section 124A of IPC. Sibal asked if the Court would be referring the matter to a Constitution Bench.

Attorney General R. Venkataramani submitted that a new law has been sent to a parliamentary committee. "What is the new law", asked the CJI. "It is much worse", Sibal responded.

Assuming that the new law comes in, that will govern future actions. The pending prosecutions will continue under the old law, unless the new law says otherwise. We can stand this over in view of what has happened in the Parliament or we can refer this to a larger bench, the CJI said.

Sibal said that the matter should be referred to the larger bench.

"The new law has to be prospective. What happens to the prosecutions under 124A that are pending? The constitutional question we will have to be decide", the CJI said.

Advocate Kaleeswaram Raj appearing for a petitioner submitted that since the government has conceded in the affidavit that Section 124A does not stand the test of the Constitution, no reference may be required. The CJI responded by saying that the Government's concession was on the basis of the Judgment in Kedar Nath Singh vs State Of Bihar.

Senior Advocate Gopal Sankaranarayanan submitted that the new proposed law provides for the continuation of the prosecution under the existing law. We can't doubt the validity of Kedarnath sitting as a three-judge bench, CJI said. Sibal then said that the three-judge bench can decide whether the matter needs to be referred to a five-judge bench.

Senior Advocate Arvind Datar submitted that the CJI, as the master of the roster, can refer the matter straight away to a seven-judge bench instead of the five-judge bench, as per the Dawoodi Bohra judgment.

Solicitor Tushar Mehta then submitted that the Court can even consider subsequent judgments and decide while sitting on a three-judge bench. The CJI responded that it would not be an appropriate thing to do. When the CJI said that the Court wants to see that the Kedar Nath Judgment, the SG then said that the Centre is asking for an adjournment on the basis that the Parliament is considering a new law.

"What you have proposed is more draconian. That is the unfortunate part", Sibal responded.

We can't avoid looking at the constitutionality of 124A on the basis that there is a new law, for the reason that the prosecution will proceed on the basis of the existing law. The new law can't have retrospective effect, the CJI said.

Tushar Mehta then said that a new penal law can only be prospective. But if the Parliament modifies an existing law, it may not be hit by Article 20. The CJI then said the Parliament will have to expressly say the same and that ordinarily, the Parliament does not do that.

The CJI then said that it had been a long time since he looked at the Kedar Nath Judgment, and he wanted to have a look at it. Sibal then read Section 124A of IPC and from the Judgment in Kedar Nath Singh vs State Of Bihar. "Disaffection towards the Government is different from disaffection towards the State. That is the heart of the matter", he submitted. Arvind Datar added that at the time the law was made, there was no difference between the Government and the State. Sibal added the offence was made cognizable only in 1973.

Tushar Mehta stressed that it was made cognizable in 1973 by the then government, implying that the same was done by the then Congress government. "Point taken", CJI said laughing. Mehta said that though Sibal is very aggrieved with the provision now, he missed the opportunity to correct it earlier.

The CJI said that when the Kedar Nath case was decided, Article 19 was looked at in the context of Article 14. Sibal submitted that the matter must straight away be referred to a seven-judge Bench, instead of a five-judge bench. Sibal added that the expression "government" in the provision makes it per se unconstitutional.

Arun Shourie appearing in person submitted that the new proposed law is not in conformity with the Kedar Nath judgment since there is no reference to violence and disorder.

The Attorney General submitted that Kedar Nath judgment applied the proportionality test. The SG submitted that we can't say in what form the Parliament will pass the new law. He said that the Court must await the Parliament's decision. Sibal responded by saying that it is recorded in the Kedar Nath judgment that the then government had said that it was considering changing the provision.

On the last date of the hearing, the Attorney General (AG) R. Venkataramani had told the Court that the Central Government is in the process of examining the provision and that consultations are at an advanced stage.

Recently, the Union Home Minister, Amit Shah, introduced three bills in the Lok Sabha, which is to replace three existing laws in the country. The proposed bills bring a total of 313 changes in the entire system governing criminal laws, comprising the IPC, CrPC and the Indian Evidence Act. However, Sedition law finds no place in the proposed bill.

Section 150 of the proposed new law that will replace the IPC, “Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years and shall also be liable to fine. Explanation.––Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section”.

While putting the law on hold, the bench headed by the then CJI N V Ramana had ordered that besides lodging fresh FIRs, ongoing probes, pending trials and all proceedings under the sedition law will also be in abeyance. The bench had said the "rigours of Section 124A (sedition) of the IPC is not in tune with the current social milieu", and permitted reconsideration of the provision.

Cause Title: S.G. Vombatkere v. Union Of India [W.P.(C) No. 682/2021]