Centre asks SC to pause sedition hearings but precedents tell a different story

The Union government on Monday asked the Supreme Court to suspend the ongoing judicial scrutiny of the 152-year-old colonial law on sedition till the government takes a call on the issue

Had the Supreme Court waited for a central government’s panel to conclude its review of Section 66A of the Information Technology Act, a landmark judgment on free speech would perhaps have never come in March 2015.

The Supreme Court will consider the government’s request to wait for the exercise to re-examine and reconsider the provisions of Section 124A, sedition. (HT File Photo)

In February 2015, the Centre urged the top court to wait for the recommendations to be made by the committee put in place to examine the applicability of Section 66A of the Information Technology Act, which empowered the police to make arrests for contentious social posts.

But a bench of justices J Chelameswar and Rohinton F Nariman refused to wait, holding that a constitutional court must test the validity of a law as it stands today, especially when it relates to the fundamental rights of the citizens. A month later, the Supreme Court came out with a path-breaking verdict that cemented the freedom of speech in India and struck down Section 66A on grounds of being arbitrary and excessively disproportionate to constitutional rights.

The illustration comes in handy in the wake of the affidavit filed by the Union government before the Supreme Court on Monday, urging the court to pause the ongoing judicial scrutiny of the penal provision of sedition till the government reviews the law.

The government on Monday told a three-judge bench, led by Chief Justice of India NV Ramana, that since it has decided to re-examine and reconsider the provisions of Section 124A (sedition) of the Indian Penal Code, the apex court “may not invest time in examining the validity of Section 124A” 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 permitted.”

While the bench will consider the Centre’s request on Tuesday when the matter will be taken up, the similarity between the two cases is striking.

A clutch of petitions challenged the validity of the draconian provision in the Information Technology Act, authorising police officers to make arrests for what they considered as “grossly offensive” posts. Section 66A of the IT Act was cognisable and non-bailable and so is Section 124A, under which a person can be arrested straight away, without the necessity of a judge’s approval.

Recently, the Union government took a similar stand before the Delhi high court where the Centre pressed for the need to have wider consultations with state governments and other stakeholders before taking a call on whether marital rape should be criminalised. The government requested the high court to defer the proceedings till the consultation got over but the plea was shot down.

Deciding to deliver a verdict on the issue, the high court on February 21 reserved its judgment on the petitions seeking criminalisation of marital rape, and compared the Union government’s stance to that of “Trishanku”, a king in Indian epics who sought to have his own heaven created, only to be suspended in limbo halfway. The judgment is yet to be delivered.

Before a constitution bench in 2018, the Union government had refrained from taking a position on the validity of Section 377 (homosexuality) of the IPC, saying it wants to leave the issue “to the wisdom of this court”.

In its September 2018 judgment that decriminalised gay sex between consenting adults, the five-judge bench criticised the Centre for not taking a stand.

“We would have appreciated a categorical statement of position by the government, setting out its views on the validity of Section 377… The ambivalence of the government does not obviate the necessity for a judgment on the issues raised. The challenge to the constitutional validity of Section 377 must squarely be addressed in this proceeding. That is plainly the duty of the court. Constitutional issues are not decided on concession,” the court underscored.

The court further held that the proceedings before it must be dealt with in the only manner known to the constitutional court: through an adjudication which fulfils constitutional values and principles.