A 3-judge bench of the SC hearing the sedition matter says first it would like to be addressed on whether it can hear the validity of Section 124A more so when for good or bad reasons, it was upheld by a 5-judge bench; or if the matter needs a referral to a larger bench.
The bench of Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli have decided to post the matter for May 10 at 2 PM for a hearing on preliminary arguments on the issue of reference.
The bench has ordered all the concern parties in the case to file their submissions on the issue of reference by Saturday. Centre has been told to file its counter by May 9.
Solicitor General of India Tushar Mehta had asked for time to file counter- affidavit of the Centre, however he said that the draft is ready from the lawyers side but still awaits approval from a competent authority
CJI NV Ramana said that
“We issued notice almost 9-10 months, another bench also issued notice, I don’t think there is any problem to hear the matter”.
The Solicitor General said that “It would be inappropriate for me to argue on my part without the central government on record.
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The CJI said that as it is a legal provision and can be heard without the counter, he further asked what the prima facie of the government was?
Solicitor general said that “Issue will have to be debated between the Govt and advisors”.
The Bench then asked the Attorney General for India KK Venugopal, to whom notice was issued separately earlier said that he thinks the guidelines can be issued to prevent its misuse. He further said “Your lordships know what is happening in the country.Yesterday, somebody was detained under this Section just because they wanted to chant hanuman chalisa.
Advocate Kapil Sibal who was from the petitioners side argued that the issue can be decided ignoring Kedar Nath, reference to a larger bench may not be necessary. Sibal submitted before the court that the Kedar Nath Decision was taken in the AK Gopalan era where Article 21 held the field and fundamental rights were seen as separate silos.
Sibal further said that in the light of subsequent developments in the fundamental rights, a 3-judge bench can go into the issue ignoring Kedar Nath.
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Justice Surya Kant however questioned if any evidence can be provided where a 3-judge bench struck down a law which has been approved by a 5-judge bench?”
Replying to Justice Surya Kant , the Senior Advocate Gopal Shankaranarayanan, who was appearing for another petition mentioned that in a case 2-judge bench struck down Section 8(4) of the Representation of Peoples Act, despite a 5-judge bench earlier approving it, on the ground that some new aspects were not considered.
Sibal in his representation said that Kedarnath had made mistake of confusing between the state and the Government. He further said that it is a free country , which is not subjected to the crown and so everytime a journalist, student is behind the bars because he criticized the Government, it is breech of Article 19(1)(a)
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He submitted before the court that the aim was not to challenge power of Government to restrict the freedom of speech but the restriction that has been put to protest against Government. He put his point clear he quoted Mahatma Gandhi “ It is my right to create disaffection against my Government”
Justice Kant asked “a subsequent change of law would enable a 3-judge bench to ignore a 5-judge bench which rightly or wrongly upheld the provision”.
The Attorney General said that Kedar Nath is a well balanced decision which balances free speech and National security. He also added that
“It has been held that if law which is valid but is been misused, the law may not become invalid. Mere fact you’re implementing it legitimately make unconstitutional law valid. The question is what is so abhorrent in 124A which merely protects state’s & citizen’s security from public disorder”.
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An SC bench comprising CJI Ramana, Justices Kant and Kohli adjourns the hearing on petitions challenging sedition law to Tuesday. The bench asks petitioners & Centre to file written notes as to whether or not the matter should be referred to a larger bench.