Thread by @barandbench

[Challenge to Constitutionality of Sedition Law]

Supreme Court to shortly hear a batch of petitions challenging the Constitutionality of Section 124 A IPC, Sedition

#SupremeCourt #Sedition #124A @prasanna_s @pbhushan1

The Central Government was directed to file a reply by last Sunday. However after two requests of extension, Centre has now asked for a week more to file a reply in the case

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To read more about the petitions & points of law: Refer here: #SupremeCourt #Sedition

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The hearing is expected to begin post 10.30 am before the bench of Chief Justice of India NV Ramana, Justices Surya Kant and Hima Kohli
#SupremeCourt #Sedition

CJI led bench has assembled
#sedition #supremecourt

Solicitor General Tushar Mehta: there are 2 reasons why we could not file our reply. 1. draft reply is made by us lawyers and it awaits approval by competent authority since its an issue of importance. 2. On last occasion, some fresh matters were served

#sedition #supremecourt

SG: Considering the nature of matter and repercussions, please list this on a reasonable time

CJI: First notice was issued 9 months ago and other benches also issued notice. there is no problem to argue this matter

SG: For a matter of importance like this, would it be fair if the stand of central government is not on record

CJI: It is about a legal provision, you can argue without counter also on record

SG: Consultation with competent authority is needed. we are only seeking a week

CJI: What is the prima facie view of the govt on the section 124A?

SG: We have to debate it with the government and seek their opinion

CJI: AG Venugopal what is your stand?

AG: I was issued a notice. I am ready

SG: AG will only appear as the Attorney General, I will appear for Centre

Justice Hima Kohli: new petitions only had to rake in points which are not there in the petitions

SG: New petitions have been filed

CJI: I cannot help if someone keeps filing petitions to be in the news. not my problem. #sedition

CJI: AG had conceded that it requires some debate. what is the word you had misused?

AG: Misuse of section has been controlled. but question of reference to larger bench does not arise as kedarnath judgment is a well balanced judgment. Judgment of kedarnath has to be upheld.

CJI: but you had said section is being misused last time. anyways #sedition

AG: We need guidelines on this section, what is permissible and what is impermissible and what can come under sedition. see what is happening in this country, yesterday sedition was charged against people who recited hanuma chalisa #sedition

Justice Surya Kant: Can we proceed hearing this case without reference of kedarnath to larger bench?

Sr Adv Kapil Sibal: In AK Gopalan you could not have challenged the law under 14 and 21 and even in RC Cooper. you dont have to go under 19(1)(a)

SC: but each one of you says kedarnath needs to be overruled and it needs to be referred to larger bench

Sibal: no we will not argue this and I am here for everyone

Justice Kant: let us assume, for good, bad or obsolete reason, this section 124A has been upheld by this court

Justice Kant; is there a single precedent of this court where a 3 judge bench has overruled the judgment of the 5 judge bench?

SG: Precedents are otherwise

Sibal: who makes precedents in this country, it is you your lordships. it is said if you dont want to follow larger bench judgment then there must be reasons. there is change of law after RC Cooper. Please remeber colonial masters do not control us anymore, we own our own destiny

Sr Adv Gopal S: In Lily Thomas, the same thing where larger bench judgment was overlooked.

SG: In the Puttuswamy case, AG had relied on 7 judge bench judgment before 3 judge bench . it was argued that much water has flown and the precedents have changed as well. grant me time

Justice Kant: I hope you all have done your homework

SG: Please consider my request. let us have this hearing on any other reasonable date

CJI: My brother has a doubt in whether Kedarnath case judgment can be reconsidered or not.

SG: Let centre place its submission on this

CJI: Mr Sibal, what Justice Kant says is when a prayer is made to reconsider a five judge bench judgment...

Sibal: Yes then it has to be referred. We are not pressing that case. we are all here. Please consider the pure question of law. so many people are in jail

Justice Kant: this matter has come up for hearing for first time

Sibal: we are in free India and we are not serving any masters. Each day a journalist or someone else spends in jail due to this then how does it fair. we are not subjects of the crown anymore

SC: Question is whether we sit in three judge bench composition or sit in five judge bench composition #sedition

The judges discuss with each other #sedition

CJI: We cannot completely say no to Solicitor General. Please take two days and file a reply. But we will hear Mr Sibal on the reference issue

SG: My reply will be an independent decision of the executive and a holistic one. It is not based on submissions made here. I may have to make submissions that it may not be possible to give up the prayer at all of reference to a larger bench #sedition

Sibal: Milord if you do not agree with me then it may be referred to a 7 judges bench. But I am not pressing this at all.

SG: Please let us file our submissions on this specific issue of reference by tomorrow and let us have this case next week

Sibal: you should have done it

CJI: How many of you are asking for reference?

Sibal: several .. in case you do not agree with us

Justice Kant: in every writ petition there is a prayer to strike down Kedarnath and strike down 124A

#SEDITION

Sibal: even without overruling Kedarnath, the section 124A can be struck down after observing the sea change in law as well. Kedarnath case confuse between state and government. 124 concerns with state and Article 19 concerns with govt #sedition

Justice Kant: you have to pursue us that even after 5 judge bench in Kedarnath judgment , we can proceed to hear this

Sibal: this law de hors kedarnath is wholly unconstitutional

SC: no no first we need to decide 3 judges 5 judges or 7 judges composition

Sibal: I will persuade you that there is no need to examine RC Cooper, Coelho, Gopalan etc since your lordships have laid down exact tests now #sedition

Justice Kant: assuming the CJI decides to constitute a larger bench. then we need not see the preliminary objection and take up the validity of 124A. So we have to see in light of global perception and change of law post kedarnath, 124A has to be there or not

Sibal: I agree with this but the hearing is now delayed for 16 years

SC: But then there cannot be any objection to preliminary point of kedarnath etc

Justice Kant: even considering your point that 124A is not a bad law..

AG: Kedarnath has traced entire federal history on 124A and therefore they came to the conclusion. thus they have to show something is wrong with the kedarnath judgment.

Justice Kant: yes your strength is Kedarnath and they will follow other cases to show that kedarnath was not correct

Sibal: there has been a sea change in law officers also

AG: I am on notice...

AG: notice has been issued to me as Attorney General

CJI: But SG is asking for adjournment

AG: My stand may be different than that of the SG

SG: AG reply may be different from Centre

CJI: let AG address

AG: For me Kedarnath is the last word on the subject. Federal court took an approach that any speech it may be in the form of rally or results in public disorder or incite violence, then 124 will apply. Privy council held speech against govt will be under 124A

AG: Kedarnath followed the Federal court judgment and judgments of federal court is to be treated as judgment of Supreme court of india. So kedarnath stated speech should lead to public disorder or cause incite to violence

AG: There is an allegation that sedition is being used for religious attacks etc where state is involved. So it has to be seen that if a statute is held to be valid but is misused then what can be done.

AG: Law which is fair and valid but is implemented in an unfair and abusive manner will not make the law unconstitutional and similarly applying unconstitutional law in a fair way does not make it constitutional. it has to be shown what is so abhorrent in sedition law

AG: Kedarnath is a valid judgment and there is no need to refer it to a larger bench. There is no use to bring Article 19 etc. It cannot be said that public disorder or incite to violence has to be overlooked. #sedition

Sibal: I appreciate the stand of AG. There is confusion again. 124A deals with the government and Article 19 deals with state. holding protests against the govt is a fundamental right. Mahatma said it is a right to create disaffection against the government. #sedition

Sibal: Kedarnath did this very mistake. it confused between state and govt.

#sedition

CJI: We agree as suggested by SG Mehta, please submit written arguments on both sides on whether there has to be a reference or not by tomorrow. We will have this on Monday 2 pm. Argue for one hour each and finish it #sedition

SG: I have a personal difficulty on Monday please have it on Tuesday

Sibal: no no no Monday

SG: I dont want to embarass Mr Sibal, he has to oppose my personal difficulty as well

CJI: List this matter on next Tuesday, 2 pm . SG to file counter by Monday. no further adjournments

CJI: Written submissions on reference to be submitted by Saturday all sides
#sedition