NEW DELHI: The Centre on Saturday defended in the Supreme Court the penal law on sedition and the 1962 verdict of a constitution bench upholding its validity, saying they have withstood "the test of time" about six decades and the instances of its abuse would never be a justification of reconsideration.
A bench of three judges comprising Chief Justice N V Ramana and Justices Surya Kant and Hima Kohli, on May 5, said that 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 for reconsidering the 1962 verdict of a five-judge constitution bench in the Kedar Nath Singh case.
"Instances of the abuse of provision would never be a justification to reconsider a binding judgment of the constitution bench. The remedy would lie in preventing such abuse on a case-to-case basis rather than doubting a long-standing settled law declared by a constitution bench for about six decades," said the 38-page written submission filed through Solicitor General Tushar Mehta.
The reply also raised the issue of corum and opposed the submissions of senior advocate Kapil Sibal that in a changed fact situation a bench of three judges can also test the validity of the sedition law, saying "no reference, therefore, would be necessary nor can the three-judge bench once again examine the constitutional validity of the very same provision".
The top court, 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.
The Centre's view incidentally matched with the submissions of Attorney General K K Venugopal, who on Thursday had strongly batted for the retention of the provision in the IPC, saying "referring the Kedar Nath (judgement) to a larger bench is not necessary. It is a well-considered judgement."
The written submission of the Centre, settled by the solicitor general, referred to a host of judgments and said, The bench of three judges cannot reconsider the ratio of a judgment of a constitution bench without referring the matter to a larger bench.
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For a reference to a larger bench also it will be absolutely necessary for the bench of three judges to record its satisfaction that the ratio in the Kedar Nath Singh is so patently wrong that it needs reconsideration by a larger bench.
Referring to the batch of petitions, the reply said none of the PIL petitioners has shown any justification based upon which this court can record a finding that the 1962 verdict "is patently illegal requiring reconsideration".
A holistic reading of the judgments evidently shows that the constitution bench, in the 1962 verdict, had examined the constitutionality from all possible angles, including Article 19 (freedom of speech and expression), and therefore, remains binding.
The provision has been under intense public scrutiny recently for its alleged misuse to settle political scores by various governments which had led the CJI to ask if the colonial-era law, which was used to persecute freedom fighters, was still needed after 75 years of Independence.
Venugopal has recently referred to the sedition case lodged against MP Navneet Rana and her MLA husband Ravi Rana in Maharashtra over the Hanuman Chalisa row.
"Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India], shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine," reads section 124A (sedition) of the IPC.
Sibal, appearing as the lead counsel on behalf of the petitioners, had said that 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.
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.