[Sedition challenge] Stay Section 124A if matter is referred to larger bench: Petitioners to Supreme Court

Section 124A of the Indian Penal Code (IPC) which criminalises sedition should be stayed by the Supreme Court if the top court decides to refer the case relating to its validity to a Constitution Bench of five or more judges, the petitioners in the case have told the apex court [SG Vombatkere vs Union of India]..In the written submission filed by petitioner's counsel Senior Advocate Kapil Sibal through advocate Prasanna S, the petitioners stated that in the event that Supreme Court deems it fit to reconsider the correctness of the ratio laid down in Kedar Nath Singh judgment and refer the matter to a Bench of larger strength, the operation of Section 124A should be stayed. The Kedar Nath Singh judgment of the Supreme Court which upheld the validity of Section 124A in 1962, was rendered by a 5-judge Constitution bench.A batch of petitions challenging the validity of the law is currently being heard by a three-judge Bench. The Court is examining whether the matter needs to be referred to a 5-judge bench in view of the Kedar Nath Singh judgment. The Central government's second senior most law officer, Solicitor General, (SG) Tushar Mehta had earlier filed a note before the Court stating that the Kedar Nath Singh judgment has stood the test of time and was applied till date in tune with modern constitutional principles. The SG pointed out that only a bench of co-equal strength of Kedar Nath Singh can pose any doubts on the verdict.A bench of Chief Justice of India NV Ramana and Justices Surya Kant and Hima Kohli will consider the issue of reference at 2 pm today when the parties will make final submissions in this regard.The petitioners have contended that the very basis of the judgment in Kedar Nath Singh v. State of Bihar "is no longer relevant in the context of challenge to Section 124A being available on grounds of holding in RC cooper which requires Section 124A to be looked at afresh with reference to interplay between articles 14, 19(1)(a) and 21 of the Constitution"..In the stay application filed along with the written submissions, the petitioners have contended that "in the larger public interest and in the interest that speech should not be chilled in a free democratic republic like India, it is necessary that the operation of Section 124A be stayed forthwith and that any pending proceedings, including pending investigations if any be stayed as an interim measure.".The application seeking stay further reads that Section 124A of IPC which begins with "no presumption of constitutionality for being a pre-constitutional legislation is manifestly unconstitutional.".They have further stated that the attempt to refer matter to a larger bench now is an attempt to turn the clock back on the decades of development of the law on fundamental rights, which the Court should not accept. The written note said that challenge to Section 124A would require an interpretation of Article 19(1)(a) in co-relation with and taking colour from Articles 14 and 21 which require the law to be both substantively and procedurally reasonable."In that sense the constitution bench decision does not stand in the way of this court in a way of bench of this court considering the constitutional validity of section 124A," read the note.It further said that what is relevant is not the object of the authority making the law but rather its effect on rights of individuals."In determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the Legislature nor by the form of the action, but by its direct operation upon the individual's rights," the note stated. .Meanwhile, the Central government submitted an affidavit before the Court yesterday stating that it has decided to re-examine and reconsider Section 124A of the Indian Penal Code (IPC) which criminalises the offence of Sedition.In view of the same, it has requested the Supreme Court not to invest its time in examining the validity of Section 124A for the time being, and to await the exercise of reconsideration being undertaken by the Government of India.