S.G. Vombatkere v. Union of India
Supreme Court of India, 12 September 2023, 3 judges
In this order, not a final judgment, a three Judge Bench refused to defer the challenge to Section 124A IPC and directed the papers to be placed before the Chief Justice for constitution of a larger Bench.
Facts
A batch of writ petitions challenged the constitutional validity of Section 124A of the Indian Penal Code, 1860 as ultra vires Article 19(1)(a) and Articles 14 and 21. A Constitution Bench had upheld Section 124A in Kedar Nath Singh v. State of Bihar, reading it down to activities intended or tending to create disorder or disturbance of public peace by violence. The petitioners sought a reference of that decision to a larger Bench, arguing among other things that the section conflates the State with the Government, is a pre-constitutional law, and was tested only against Article 19(1)(a). The Attorney General and Solicitor General asked the Court to defer the question because Parliament was considering a Bill to re-enact the Penal Code, then before a Standing Committee.
Questions before the Court
- Should consideration of the challenge to Section 124A be deferred because Parliament is in the process of re-enacting the Penal Code?
- Should the correctness of Kedar Nath Singh be considered by a larger Bench?
What the Court held
- This is an order, not a final judgment. It does not decide the validity of Section 124A.
- The request to defer was refused. Section 124A remains on the statute book, and a penal statute is presumed prospective, so existing prosecutions will likely be governed by it. Its validity for the period it operates therefore needs to be determined.
- Kedar Nath Singh tested Section 124A only against Article 19(1)(a) read with Article 19(2); there was no Article 14 challenge. Constitutional jurisprudence has since recognised that fundamental rights do not exist in silos and that Article 14 permeates Articles 19 and 21.
- The submissions warrant consideration by a Bench of at least five Judges, as Kedar Nath Singh was decided by a Constitution Bench. The Registry was directed to place the papers before the Chief Justice for constitution of a larger Bench on the administrative side.
Why it matters
The order does not decide whether Section 124A is valid. It refused to defer the challenge because the provision remains on the statute book and will likely govern existing prosecutions despite the proposed new law. It directed that the papers go to the Chief Justice so that a Bench of five or more Judges could hear the cases, noting that Kedar Nath Singh did not consider Article 14 and that fundamental rights are now seen as not existing in silos.
In the Court's words
Copied from the official judgment; each passage links to its page.
“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.”
“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 14. 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.”
“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.”
Provisions interpreted
Case and bench
- Parties
- S G Vombatkere v. Union of India
- Case
- Writ Petition (Civil) No 682 of 2021 (with connected writ and contempt petitions)
- Decided
- 12 September 2023
- Bench
- Dr Dhananjaya Y Chandrachud, CJI, J B Pardiwala, Manoj Misra
- Opinions
- A signed order of a three Judge Bench (Dr Dhananjaya Y Chandrachud, CJI, J B Pardiwala and Manoj Misra, JJ.). It is a reference order, not a final judgment, and there is no separate opinion.
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