It is noteworthy that Section 124A of the Indian Penal Code (IPC) has been incorporated in Section 150 of Bharatiya Nyaya Sanhita (BNS).
Section 150 of BNS reads: "Acts endangering sovereignty, unity and integrity of India-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."
BNS repeals 22 provisions of the IPC. It modifies 175 existing provisions and incorporates nine new Sections. BNS has 356 provisions.
In S.G. Vombatkere Vs. Union of India, a 3-judge bench of the Supreme Court led by the Chief Justice of India, Dr Dhananjaya Y Chandrachud and Justices J B Pardiwala and Manoj Misra held that as the challenge to the constitutionality of Section 124-A of Indian Penal Code (IPC) 1860 required reviewing the judgement of a Constitution Bench in Kedar Nath Singh Vs State of Bihar (1962), it would not be appropriate for a smaller bench to do the same. The petitions have been referred to a larger Constitution Bench. The order was passed on September 12, 2023. The case is mentioned as a Seven Judges Bench Matter on the Court's website.
The order reads: "There is a challenge in this batch of petitions to the constitutional validity of Section 124A of the Indian Penal Code 18601 on the ground that it is ultra vires Article 19(1)(a) and Articles 14 and 21 of the Constitution of India. The constitutional validity of Section 124A IPC was tested on the basis of a challenge that it was ultra vires Article 19(1)(a) in Kedar Nath Singh Vs State of Bihar. The Constitution Bench upheld the provisions of Section 124A.
The essence of the reasoning of the Court is contained in paragraphs 25 and 26. Paragraph 26 of the judgment is extracted below :-
“26. In view of the conflicting decisions of the Federal Court and of the Privy Council, referred to above, we have to determine whether and how far the provisions of Sections 124-A and 505 of the Indian Penal Code have to be struck down as unconstitutional. If we accept the interpretation of the Federal Court as to the gist of criminality in an alleged crime of sedition, namely, incitement to disorder or tendency or likelihood of public disorder or reasonable apprehension thereof, the section may lie within the ambit of permissible legislative restrictions on the fundamental right of freedom of speech and expression. There can be no doubt that apart from the provisions of clause (2) of Article 19, Sections 124-A and 505 are clearly violative of Article 19(1)(a) of the Constitution. But then we have to see how far the saving clause, namely, clause (2) of Article 19 protects the sections aforesaid. Now, as already pointed out, in terms of the amended clause (2), quoted above, the expression “in the interest of … public order” are words of great amplitude and are much more comprehensive then the expression “for the maintenance of”, as observed by this Court in the case of Virendra v. State of Punjab. Any law which is enacted in the interest of public order may be saved from the vice of constitutional invalidity. If, on the other hand, we were to hold that even without any tendency to disorder or intention to create disturbance of law and order, by the use of words written or spoken which merely create disaffection or feelings of enmity against the Government, the offence of sedition is complete, then such an interpretation of the sections would make them unconstitutional in view of Article 19(1) (a) read with clause (2). It is well settled that if certain provisions of law construed in one way would make them consistent with the Constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. The provisions of the sections read as a whole, along with the explanations, make it reasonably clear that the sections aim at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. As already pointed out, the explanations appended to the main body of the section make it clear that criticism of public measures or comment on Government action, however strongly worded, would be within reasonable limits and would be consistent with the fundamental right of freedom of speech and expression. It is only when the words, written or spoken, etc. which have the pernicious tendency or intention of creating public disorder or disturbance of law and order that the law steps in to prevent such activities in the interest of public order. So construed, the section, in our opinion, strikes the correct balance between individual fundamental rights and the interest of public order. It is also well settled that in interpreting an enactment the Court should have regard not merely to the literal meaning of the words used, but also take into consideration the antecedent history of the legislation, its purpose and the mischief it seeks to suppress [vide (1) Bengal Immunity Company Limited v. State of Bihar and (2) R.M.D. Chamarbaugwala v. Union of India]. Viewed in that light, we have no hesitation in so construing the provisions of the sections impugned in these cases as to limit their application to acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence.”
The petitioners have sought a reference of the correctness of the decision in Kedar Nath Singh (supra) to a larger bench principally for the following reasons :
(i) The provisions of Section 124A conflate the State with the Government. Article 19(2) authorises the State to impose reasonable restrictions on the right under Article 19(1)(a) of the Constitution. The State cannot be equated with the Government. Hence, a ‘disaffection’ towards Government cannot necessarily be read as seditious in character in relation to the State;
(ii) Though the Government has introduced a legislation in Parliament for the purpose of replacing the existing Penal Code which has been referred to a Standing Committee, the enactment of a new law will not obviate the need to adjudicate upon the constitutional validity of Section 124A for the simple reason that any new legislation of a penal character cannot have retrospective effect;
(iii) Section 124A is a pre-constitutional enactment and does not carry the same presumption of constitutionality as a law enacted after the Constitution was adopted;
(iv) The provisions of Section 124A have only been tested on the anvil of Article 19(1)(a). In view of the development of law that has taken place in the six decades since the judgment of the Constitution Bench in Kedar Nath Singh, it would be necessary to re-evaluate the validity of Section 124A on the basis of the doctrines which have evolved in those years particularly having a bearing on the ambit of Articles 14 and 21 of the Constitution; and
(v) The provisions of Section 124A were made cognizable for the first time by the Code of Criminal Procedure 1973. Hence, even during colonial times, the provision was non-cognizable in nature.
The Court's order records that R Venkataramani, Attorney General for India and Tushar Mehta, Solicitor General of India requested the Court to defer considering whether a reference should be made to a larger bench, since Parliament is in the process of re-enacting the provisions of the Penal Code and the Bill has been placed before a Standing Committee.
The Court's order reads: "We are not inclined to accept the request for deferring the consideration of the constitutional challenge in this batch of matters. The provisions of Section 124A of the IPC continue to remain on the statute book. Even if the new law which is proposed to be placed by the Government before the legislature results in a modification of the existing provision of Section 124A, there is a presumption that a penal statute would have prospective and not retrospective effect. Existing prosecutions under Section 124A will likely be governed by that provision. Consequently, the validity of the prosecutions which have been launched or would be launched so long as Section 124A continues to remain on the statute would have to be assessed under it. The issue of the validity of the provision for the period that it continues to operate would, therefore, need to be determined. The decision of the Constitution Bench in Kedar Nath Singh (supra) which has been referred to above read down the provision of Section 124A. The Court held that the provision of Section 124A read as a whole along with the Explanations, makes it reasonably clear that it aims at rendering penal only such activities as would be intended, or have a tendency, to create disorder or disturbance of public peace by resort to violence. Viewed in this light, the Court held that the provisions of Section 124A would be consistent with Article 19(1)(a). In the course of its discussion of the validity of the statutory provision, the Constitution Bench also came to the conclusion that:"'The Government established by law' has to be distinguished from the person's for the time being engaged in carrying on the administration. "Government established by law" is the visible symbol of the State. The very existence of the State will be in jeopardy if the Government established by law is subverted.' On this aspect, it has been submitted on behalf of the petitioners that the above observations do not make a distinction between the State which falls within the ambit of Article 19(2) of the Constitution and the Government, which does not."
The order noted: "At the point in time when the Constitution Bench ruled on the validity of the provision, the challenge on the ground that Section 124A violated Article 19(1) (a) of the Constitution was tested only on the anvil of that article. This must be read in the backdrop of the constitutional position as laid down by this Court at the relevant time, which was that a challenge to the validity of a statutory provision on the ground that it violated a specific article in Part III, say Article 19(1)(a), would have to be adjudged on the basis of whether the law was sustainable with reference to Article 19(2) of the Constitution. There was no challenge on the ground that Section 124A violated Article 14 nor did the Constitution Bench have occasion to consider the validity of the provision against a constitutional challenge on the basis of Article The position as it has evolved in constitutional jurisprudence is that the fundamental rights do not exist in silos. There is, in other words, a coalescence of several of the rights protected by Part III. Article 14, which presents an overarching principle of reasonableness permeates Articles 19 and 21 as well. 13 The submissions which have been urged on behalf of the petitioners would warrant consideration by a Bench of at least five Judges of this Court. In our view, the appropriate course of action for a three Judge Bench of this Court would be to direct that the papers be placed before the Chief Justice of India so that, if so considered appropriate, the batch of cases can be heard by a Bench of five or more Judges, since the decision in Kedar Nath Singh’s case (supra) was rendered by a Constitution Bench."
The order of September 12, 2023 concluded saying, "We accordingly direct the Registry to place the papers before the Chief Justice so that an appropriate decision can be taken on the administrative side for the constitution of a larger Bench in the present case."
Prior to that in pursuance of Supreme Court's order, the Government
initiated the process of re-examining the provisions of Section 124A of
the IPC. R Venkataramani, Attorney General for India informed the Court about it.
The Court was hearing nine petitions challenging the Constitutionality
of Section 124 A of the IPC relating to the offence of sedition.
Notably, in Common Cause Vs. Union of India (2016) had passed an order on September 5, 2016 saying, "we are of the considered opinion that the authorities while dealing with the offences under Section 124A of the Indian Penal Code shall be guided by the principles laid down by the Constitution Bench in Kedar Nath Singh vs. State of Bihar [1962 (Suppl.) 3 SCR 769] Except saying so, we do not intend to deal with any other issue as we are of the considered opinion that it is not necessary to do so."
On May 9, 2022, an affidavit was filed in the Court on behalf of Union of India, averring as under:
“3. I state and submit that so far as Section 124A is concerned, there are divergence of views expressed in public domain by various jurists, academicians, intellectuals and citizens in general. While they agree about the need for statutory provisions to deal with serious offences of divisive nature affecting the very sovereignty and integrity of the Country, acts leading to destabilizing the government established by law by means not authorised by law or prohibited by law. Requiring a penal Provision for such purposes is generally accepted by everyone in legitimate State interest. However, concerns are raised about its application and abuse for the purposes not intended by law.
4. The Hon’ble Prime Minister of India has been cognizant of various views expressed on the subject and has also periodically, in various forums, expressed his clear and unequivocal views in favour of protection of civil liberties, respect for human rights and giving meaning to the constitutionally cherished freedoms by the people of the country. He has repeatedly said that one of India’s strengths is the diverse thought streams that beautifully flourish in our country.
5. The Hon’ble PM believes that at a time when our nation is marking ‘Azadi Ka Amrit Mahotsav’ (75 years since independence) we need to, as a nation, work even harder to shed colonial baggage that has passed its utility, which includes outdated colonial laws and practices. In that spirit, the Government of India has scrapped over 1500 outdated law since 2014-15. It has also ended over 25,000 compliance burdens which were causing unnecessary hurdles to people of our country. Various offences which were causing mindless hindrances to people have been de-criminalised. This is an ongoing process. These were laws and compliances which reeked of a colonial mind set and thus have no place in today’s India.
6. The Government of India, being fully cognizant of various view being expressed on the subject of sedition and also having considered the concern of civil liberties and human rights, while committed to maintain and protect the sovereignty and integrity of this great nation, has decided to re-examine and re-consider the provision of section 124A of the Indian Penal Code which can only be done before the Competent Forum.
7. In view of the aforesaid it is this respectfully submitted that this Hon’ble Court may not invest time in examining the validity of Section 124A once again and be pleased to await the exercise of reconsideration to be undertaken by the Government of India before an appropriate forum where such reconsideration is constitutionally.”
In its order Supreme Court observed: "In view of the above, it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law."
It wrote: "This Court is cognizant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898, and pre-dates the Constitution itself, and is being misused. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa. Therefore, we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the Governments."
The Court's direction reads: In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice:
a. The interim stay granted in W.P.(Crl.)No.217/2021 along with W.P.(Crl.)No.216/2021 vide order dated 31.05.2021 shall continue to operate till further orders.
b. We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.
c. If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.
d. All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused.
e. In addition to the above, the Union of India shall be at liberty to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC.
f. The above directions may continue till further orders are passed."
On November 22 2023, the Court passed an order appointing Prasanna S. and Pooja Dhar as nodal counsel. The order reads: "The nodal counsel shall prepare a common compilation of case law, documents and written submissions filed by the parties in terms of the Circular dated 22 August 2023 issued for regulating the course of submissions in larger Bench cases. Parties shall file all submissions by 31 December 2023 with the nodal counsel. The nodal counsel shall prepare soft copies of the common compilations duly indexed in terms of the above circular. The common compilation shall be e-filed on or before 9 January 2024. The common compilation shall be made available to all the parties. The compilation shall be in the electronic form and shall be emailed to cmvc.dyc@gmail.com. The Registry shall notify the date for hearing of the reference in the month of January 2024." The case was filed on June 24, 2021. It was verified and registered on June 28, 2021. The case is pending for final hearing before a 7-judge bench.
Now, the Constitution Bench will have to adjudicate on the constitutionality of Section 150 of BNS along with the constitutionality of Section 124A of the IPC.
