Why can’t sedition law be put on hold, asks SC

NEW DELHI: The Supreme Court on Tuesday set a deadline of 24 hours for the Union government to decide if the penal provision of sedition in India can be put on hold “to protect people” from arrests until the government reviews the colonial-era law.

A bench, headed by Chief Justice of India (CJI) NV Ramana, put the government in the dock a day after the Centre filed an affidavit to state that it has decided to review Section 124A (sedition) in the Indian Penal Code (IPC) and hence, the court should hold its hands till this exercise gets over.

On Tuesday, the top court was unequivocal that it will accept the government’s request to pause the judicial scrutiny for a few months, but added a rider — 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.

Expressing serious concerns over misuse of the sedition law and the neglect of the guidelines issued by the top court in its previous judgments, the bench said that a mechanism must be put in place immediately to “protect the rights and liberty of people” since the Centre wants suspension of the court proceedings till the government takes a call on the issue. Section 124A is a non-bailable offence punishable with jail term ranging from three years to life.

“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 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. You can take two or three months to complete your consultative exercise but tell us how will you protect people in the meantime,” the bench, also comprising justices Surya Kant and Hima Kohli, asked solicitor general (SG) Tushar Mehta, who appeared for the Centre.

As Mehta said that putting a penal provision in suspension across the board will not only be unprecedented but may also affect prosecution in serious cases, the court replied that there are enough provisions in a raft of statutes to deal with grave offences against the State and

that suspending just one provision would not render investigating agencies helpless.

“We will consider the concerns of the government, but at the same time, you will have to protect those already booked and cases to be registered in future.Till this exercise gets over, your ministry should issue advisories to all the states and Union territories that all the proceedings under Section 124A should be kept in abeyance,” the bench told the SG, giving him a day to come back with instructions. The clutch of cases challenging the validity of Section 124A will be taken up again on Wednesday.

On Monday, the government filed its affidavit to inform the court about its decision to “re-examine and reconsider” Section 124A, as it underscored Prime Minister Narendra Modi’s impetus on protection of civil liberties and the need to shed “colonial baggage”, and urged the bench to pause the ongoing proceedings indefinitely to await the outcome of the review.

The affidavit on Monday followed another document submitted by the Centre in the top court less than 48 hours earlier, in which the government defended the penal provision of sedition. In its written submissions filed on Saturday evening, the Centre leaned on a six-decade-old Constitution bench judgment (Kedar Nath case, 1962) to assert that Section 124A is a valid law and that there are enough safeguards in place to balance the constitutional rights of the citizens and the needs of the State.

When the proceedings commenced on Tuesday, senior advocate Kapil Sibal, who leads the petitioners in the batch of cases, opposed the Centre’s request, emphasising that the judicial scrutiny is completely independent of any exercise that the executive or the legislature may undertake in future. “They are entitled to frame a new law or to even say that this is a bad law. But that won’t preclude this court from deciding on what the law is today. It is for the judiciary to decide whether a law is valid or not as it stands today,” argued Sibal.

Senior advocate Gopal Sankaranarayanan, who was also appearing for one of the petitioners, added that the executive cannot give an assurance on behalf of the parliament, citing a previous Supreme Court judgment.

At this, the court asked SG Mehta if he could indicate an outer limit for completing the exercise of review. “I will not be able to give an accurate reply but I can assure that the process has already commenced. The tenor and the spirit of the affidavit are clear that it is not coming only from a department,” Mehta said.

Sibal, however, complained that people are still getting put behind bars under the sedition charge and that an indefinite adjournment would be detrimental to their rights.

To this, the court said that it is inclined to give some time to the government, in view of the affidavit spelling out that the issue has drawn the attention of the PM. “See what the affidavit says; the PM has been cognisant of various views being expressed on the subject of sedition...We will definitely take into consideration that they are conducting a serious exercise. We should not appear like we are being unreasonable,” the bench told Sibal.

Turning to Mehta, the bench asked: “There are some concerns. There are cases which are pending and then there will be cases which will be lodged while you reconsider the law. How are you going to protect these things?”

Pointing out that Section 124A has been in existence for over 100 years, the SG responded that FIRs are filed by the state governments and not by the Centre. Whenever there is a misuse, there are constitutional safeguards, contended Mehta, adding it would be impossible to stop prosecution in all the cases without knowing the facts.

But the court said that it is not reasonable to push everyone with a grievance to the courts and to the jails. “Why could the Centre not instruct the states not to proceed with the matters under Section 124A till the issue is under your reconsideration? Issue directives to the states that proceedings should be kept in abeyance till the time your exercise is complete,” it told Mehta.

The SG submitted that he will take instructions on the court’s proposal. “But it will be hazardous to say that don’t apply a penal provision across the board without knowing the facts. Never in history has this court stayed a penal provision across the board,” flagged Mehta.

But the bench remained emphatic that there are various other penal provisions that can come into play in serious cases. “It is not like somebody will go scot-free just because you don’t use 124A,” it told the SG.

Mehta also tried to lean on a 2021 judgment in which the Supreme Court reiterated the guidelines issued by a Constitution bench in the Kedar Nath case to check indiscriminate arrests under Section 124A.

The bench, however, retorted: “Judgments are delivered but who is invoking Section 124A at the ground level? It is local police etc. There are judgments and guidelines but who cares? Till the time you issue directives that we will keep 124A in abeyance until the reconsideration exercise is complete, cases will continue getting registered.”

When the SG started reading out his written submissions to establish that the Kedar Nath judgment has struck a balance to ensure that Section 124A is not misused, Sibal argued that this judgment was based on federal court judgments, in the pre-constitution era where there was no difference between the government and the State. “After we became a Republic, there is a difference between the government and the State. Section 124A penalises creating disaffection towards the government. It has nothing to do with the State,” Sibal argued.

Sibal also quoted Nehru’s statement in 1951 in the parliament: “Nehru said this provision (Section 124A) is obnoxious. The sooner we get rid of it, the better”.

To this, the SG responded: “What Nehru could not do then, we are trying to do now.”

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.