SEDITION LAW

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.