Top court hits pause button on colonial-era sedition law; here's what it means

Updated on May 12, 2022 04:32 AM IST

The Union government said on Monday that it has decided to re-examine and reconsider the provisions of the sedition law. On Wednesday, the government suggested tightening the requirements for filing a case under the law, but the court went a step further.

The Supreme Court of India. (Reuters file photo)
The Supreme Court of India. (Reuters file photo)

Asserting that the sedition law in India “is not in tune with the current social milieu”, the Supreme Court in a historic decisionon Wednesday effectively put on hold the 152-year-old colonial-era penal provision, and asked the Centre and states to desist from arresting people or prosecuting them under the contentious provision until the Union government reviews it.

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A bench, headed by Chief Justice of India (CJI) NV Ramana, emphasised that “it will be appropriate not to continue the usage of the provision of law by the governments” when the Centre itself has conveyed a desire to “reconsider and re-examine” the contours and validity of Section 124A in the Indian Penal Code — a non-bailable offence punishable with jail term ranging from three years to life,and one that activists and jurists have alleged is often misused to muzzle dissent. The Union government said on Monday that it has decided to re-examine and reconsider the provisions of the sedition law. On Wednesday, the government suggested tightening the requirements for filing a case under the law, but the court went a step further.

 

“It is clear that the Union of India agrees with the prima facie opinion expressed by this court that the rigors of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law,” said the bench, which also comprised justices Surya Kant and Hima Kohli, in its 10-page order.

Putting in place a protective apparatus till the time the central government takes a call on the fate of the sedition law, the top court held that no new first information report (FIR) should be lodged by the police across the country under Section 124A while all court proceedings under the law should also be suspended.

“We hope and expect that the state and central governments will restrain from registering any FIR, continuing any investigation, or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration... All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance,” directed the bench, fixing the matter for hearing next in the third week of July.

It further clarified that if any fresh case is registered under Section 124A despite the court’s imprimatur, affected parties should approach the concerned courts, which should pass suitable orders, “taking into account the present order passed (by the Supreme Court) as well as the clear stand taken by the Union of India.”

About cases where the sedition charge has been invoked against the accused along with a set of other penal provisions, the bench left it to the wisdom of trial courts and high courts to decide if such cases can proceed in relation to other charges, without causing any prejudice to the rights of the accused.

The bench pointed out that it is cognisant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other. “There is a requirement to balance both sets of considerations, which is a difficult exercise,” noted the court, turning down the Centre’s plea not to put the law in abeyance.

“In addition to the above, the Union of India shall be at liberty to issue the directive as proposed and placed before us, to the state governments/Union territories to prevent any misuse of Section 124A of IPC,” added the top court in its court order.

While legal experts lauded the top court’s decision as a step in the right direction in protecting fundamental freedoms of citizens, opposition parties said that the voice of truth could not be suppressed. The ruling Bharatiya Janata Party (BJP) said the court order must be viewed in the context of the overall positive suggestion of the government that it wishes to examine the matter that has been “duly accepted” by the apex court.

The note the bench referred to during the proceedings was handed over to it by solicitor general (SG) Tushar Mehta during the proceedings on Wednesday. This note contained certain directives, which Mehta said the Centre could issue to states and UTs in order to check abuse of Section 124A.

It mentioned that the states and UTs could be advised that any FIR under Section 124A could be lodged only if an officer not below the rank of superintendent of police records in writing his or her satisfaction.

The Centre’s note was submitted in response to a court’s query on Wednesday. A day ago, the bench had set a deadline of 24 hours for the Union government to decide if the penal provision of sedition can be put in abeyance “to protect people” from arrests until the government reviews the law.

The apex court, on Tuesday, said that it will accept the government’s request to pause the judicial scrutiny of the law for a few months, provided the pending criminal prosecutions under the sedition law as well as the cases that may be lodged in future should be kept in abeyance across the country for the time being.

“We cannot ask everyone to go to the courts and be in jail for a few months till some court gives bail. When the government is itself showing concerns about misuse of the law, violations of liberty and human rights, how are you going to protect people? We have to balance the rights of the people who are jailed and those who are going to be booked,” the bench had asked the SG, referring to the Centre’s affidavit filed on Monday which leaned on Prime Minister Narendra Modi’s impetus to protect civil liberties and the need to shed “colonial baggage”.

Responding, SG Mehta on Tuesday argued that the Union government is ready to send an advisory to states and UTs and that the courts across the country could also speed up the bail proceedings in sedition cases. However, he added that Section 124A should not be put in abeyance, considering that a Constitution Bench upheld its validity in the 1962 Kedar Nath judgment. “Once there is a cognisable offence, either the government or the court, by an interim order, staying the effect may not be a correct approach,” contended Mehta.

On the pending cases, the SG said the gravity of each case was not known. “There may be a terror angle or money laundering in a case. Ultimately, pending cases are before the judicial forum, and we need to trust the courts. What your lordships can consider is... the bail applications may be decided expeditiously,” he said.

Senior counsel Kapil Sibal, representing the petitioners who have challenged the validity of the sedition law, countered Mehta. “This is wholly unacceptable to us. The government made the same argument when the validity of Section 66A of the Information Technology Act was under scrutiny. Then the court said that giving the power to a superintendent of police would mean nothing and that it would decide the validity of the law as it stands. The court said that if the law is unconstitutional, it is unconstitutional. So, it was struck down,” argued Sibal.

Asked by the bench his favourable course of action, Sibal replied that the law must be stayed completely if it is not going to be examined right away. “There are thousands of cases pending and many of them are in jail,” he highlighted.

Senior advocate Gopal Sankaranarayanan, who was also appearing for one of the petitioners, also submitted a note for issuance of directions by the bench. Sankaranarayanan’s note mapped out the interim directives that the Supreme Court could issue in the matter, besides specifying their effect on police, prosecution and courts. The note further highlighted that a sanction by the Centre or states is mandatory before a trial court could take cognisance of the charge under Section 124A.

At this point, the bench took a break of 15 minutes and the judges retired to their chambers. The bench sat again and the interim order was pronounced by CJI Ramana.

The court was hearing an array of petitions, filed separately by former army officer SG Vombatkere, Editors’ Guild of India, Trimanool Congress MP Mahua Moitra, NGO PUCL, and some journalists, pressing for striking down Section 124A on grounds of infringement of fundamental rights and rampant abuse.

While admitting the case in July 2021, the bench highlighted the “enormous power of misuse” of the sedition law in India, and asked the Union government why it should not scrap a colonial law that was once used by the British government to oppress the freedom movements and leaders such as Mahatma Gandhi and Bal Gangadhar Tilak.

When the case was taken up last week, attorney general KK Venugopal, who was assisting the court, said that the sedition law in India must be retained to ascertain the security of the nation and its citizens, adding that some guidelines may be laid down by the court to control the misuse of the statutory provision.

The Wednesday order by the apex court referred to the AG’s submissions on “some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa.” While making submissions on Thursday, Venugopal had referred to the bail granted to Amravati MP Navneet Rana and her husband MLA Ravi Rana on Wednesday. The couple was arrested by Mumbai police on April 23 for alleged offences of sedition and breach of harmony following their call to chant the Hanuman Chalisa in front of Shiv Sena supremo and Maharashtra chief minister Uddhav Thackeray’s family residence ‘Matoshree’.

Union minister for law and justice Kiren Rijiju said though he “respects” the Supreme Court’s decision on sedition law, he is of the view that there is a “Lakshman Rekha” (boundary) that no one should cross.

“We’ve made our positions very clear and also informed the court about the intention of our PM (Prime Minister Narendra Modi). We respect the court and its independence. But there’s a Lakshman Rekha that must be respected by all organs of the state in letter and spirit,” Rijiju told reporters. “We have to ensure that we respect the provisions of the Indian Constitution as well as existing laws,” he added.

While the Congress said the top court’s order sent a clear message that “you can no longer suppress the voice of truth”, the Communist Party of India (Marxist) hit out at the ruling Bharatiya Janata Party (BJP) at the Centre over its “gross abuse of the law”.

“Telling the truth is patriotism, not treason”, Congress leader Rahul Gandhi said in a tweet. “Listening to the truth is one’s duty. Crushing the truth is arrogance. Don’t be afraid,” he added.

Trinamool Congress MP Mahua Moitra, one of the petitioners who sought scrapping of the law, said it was a “great day for democracy”.

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