Sedition: Court in Review

Writing the 5-Judge Bench’s Kedar Nath Singh Judgment in 1962, former Chief Justice of India B.P. Sinha held that s 124A imposes ‘reasonable restrictions’ upon the Fundamental Right to Freedom of Speech and Expression, held under Article 19(1)(a) of the Constitution of India, 1950. He added that speech is seditious only if it incites violence, partially restricting the scope of sedition law. 

Notably, the 5-Judge Bench did not examine the provision against Articles 14 (Right to Equality) and 21 (Right to Life and Liberty).

Justice U.U. Lalit held that while late senior journalist Vinod Dua had criticised the government’s handling of the COVID-19 crisis, he had not incited violence. The Court reiterated its earlier decision in Kedar Nath, but refused to entertain Dua’s request of constituting a committee to screen FIRs against journalists.

From the summer of 2021 onwards, nine petitions filed in the Supreme Court challenging the constitutionality of sedition were tagged together. Prominent petitioners include the Editors’ Guild of India, Editor of the Shillong Times Patricia Mukhim, Executive Editor of the Kashmir Times Anuradha Bhasin, and journalists with sedition FIRs lodged against them, such as Kishorechandra Wangkhemcha and Kanhaiya Lal Shukla. Human Rights organisation People’s Union for Civil Liberties, activist Retired Major General S.G. Vombatkere, and Trinamool Congress parliamentarian Mahua Moitra are also among the petitioners.

Issuing notice to the Union government in these challenges, Chief Justice of India N.V. Ramana noted that sedition is a pre-independence law. During the proceedings, the CJI expressed concerns over the law being widely misused by police authorities, arguing that it must be regulated.

Nearly nine months after the Union was first issued notice in the sedition proceedings, the petitioners, as observed by this reporter, were keen to finish hearings before Ramana CJI’s August 2022 retirement. However, Solicitor General Tushar Mehta, appearing for the Union government, requested more time to file the Union’s response. 

The petitioners argued that the 5-Judge Bench’s decision in Kedar Nath may be overlooked as it did not discuss the validity of s 124A in relation to Articles 14 and 21. Concerned about a 3-Judge Bench’s competence to overrule a 5-Judge Bench’s precedent, Justice Surya Kant directed both sides to file arguments on whether a reference to a larger Bench was required. 

SG Tushar Mehta stated in an affidavit that referring the sedition cases to a larger Bench was unnecessary. A clear stance from the Union emerges with this argument—there is no need to abolish sedition law in independent India, as Kedar Nath (1962) laid down sufficient guidelines to prevent its misuse.

In a surprising turn, the Union filed an affidavit stating that the Prime Minister has initiated the process of re-examining s 124A to protect free speech and expression—and to shed India’s colonial baggage in celebration of ‘Azadi ka Amrit Mahotsav’ (75 years of Independence). The Union requested deferral of hearings till the re-examination process is completed.

Despite strong objections from the petitioners, the Bench, while exercising its ‘reasonable’ discretion, granted the Union’s request to defer the hearings. Hearings on the constitutionality of sedition are now unlikely to commence during Ramana CJI’s tenure. 

However, concerns about the misuse of s 124A lingered. Justices Surya Kant and Hima Kohli, also on the Bench alongside Ramana CJI, directed the Union to consider issuing a directive that bars all local authorities from taking any coercive action under the provision while it is being re-examined. 

Returning with instructions from the Union, SG Mehta argued that a country-wide stay of s 124A is unnecessary and that the Court’s guidelines in Vinod Dua (2021) are sufficient to prevent misuse. 

Unsatisfied, the Bench delivered an ambiguous Order. Without expressly staying the provision, the Court stated that it ‘hopes and expects’ no coercive action will be taken by Union and State governments under s 124A while the law is being re-examined.