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The Government's affidavit asking the Supreme Court to keep the sedition case pending during the reconsideration of the colonial law does not agree with a Constitution Bench judgment, which held that the Government cannot speak for or make promises to the court on behalf of Parliament.
While the Bench led by Chief Justice of India N.V. Ramana said it "respects the government's word", Justice Surya Kant, speaking from the Bench, made it a point to observe that "the government cannot give guarantees on behalf of the Parliament".
A "reconsideration" of Section 124A would entail legislative process. The Supreme Court cannot give the Parliament a deadline to complete the process. Neither can the government promise the Supreme Court a specific outcome from the Parliament. The Parliament stands alone and independent in its domain of law-making.
Then how can the government, through an affidavit, ask the Supreme Court to halt its constitutional duty to examine the constitutionality of Section 124A and await the results of the reconsideration of the colonial provision?
"The deponents of the affidavits filed in court may speak for the parties on whose behalf they swear to the statement. They do not speak for the Parliament. No one may speak for the Parliament and Parliament is never before the court," the Constitution Bench in Sanjeev Coke Manufacturing Company versus Bharat Coking Coal Limited had held in 1982.
The judgment held that the court was the only "authentic voice" which may echo or interpret the Parliament's voice once a statute leaves the Parliament House. "After Parliament has said what it intends to say, only the court may say what the Parliament meant to say. None else," the five-judge Bench had held.
When the government files an affidavit containing its understanding of a Parliamentary law or the facts and circumstances which led to the particular law, it speaks for itself and not for the Parliament, the Constitution Bench had noted.
The court should not even concern itself with the statements made in an affidavit, the judgment said. The court has to reach its own conclusions about the legality of a law. "Validity of a legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the court may ultimately find and more especially by what may be gathered from what the legislature has itself said," the Constitution Bench had stressed.
Senior advocate Gopal Sankaranarayanan, who drew the attention of the apex court to the Sanjeev Coke judgment, said there was a "pattern" to the filing of such affidavits by the government side.
"When the Puttuswamy case (privacy) was about to be closed, the government filed a memo in the Supreme Court saying Justice B.N. Srikrishna Committee has been formed to look into the issues. In the marital rape case before the Delhi High Court, the government said it is reconsidering the law..." Mr. Sankaranarayanan submitted amidst objections from Solicitor General Tushar Mehta.
Senior advocate Kapil Sibal said the court could not wait merely because there was an "intention" to reconsider the sedition provision, the doing of which may take six months to a year.
"Each institution has its job. The legislature makes laws. It is for you [Supreme Court] to decide whether a law is constitutional or not," Mr. Sibal argued.
