Constitutionality of Sedition | Day 4: SC ‘Hopes and Expects’ Union and States Will Not Use S124A Until Re-examination is Completed

On May 11th 2022, after half an hour of private deliberations, Chief Justice of India N.V. Ramana and Justices Surya Kant and Hima Kohli ‘expected’ that the Union and State governments will take no coercive measures under Section 124A of the Indian Penal Code, 1860, while the Union government re-examines the constitutionality of sedition. 

The colonial law, which criminalises any actions that spread disaffection against the government, was upheld by a 5-Judge Bench of the Supreme Court in Kedar Nath Singh v State of Bihar (1962). While the current Bench was contemplating referring the challenges to a larger Bench, the Union, eight months after it first received notice in the case, filed an affidavit seeking a deferral of hearings. The Union stated its intention to re-examine the pre-constitutional law soon. With no guarantee of the timeframe for this re-examination, the SC allowed the deferral on May 10th, 2022. However, it asked Solicitor General (SG) Tushar Mehta, representing the Union, how the government planned to check the widespread misuse of the law during the re-examination period.

Yesterday, Kant J asked the Union if it could issue directives to local authorities to stop the filing of FIRs under Section 124A during the re-examination period. The Union refused to consider issuing any such orders today. Unsatisfied with the Union’s response today, the Bench directed that until the next hearing at the SC after re-examination, all trials under Section 124A should be halted. While not expressly staying the provision, it ‘expected’ and ‘hoped’ that the government will not use the provision to start any new cases. If persons continue to be charged, the Bench stated that they may approach appropriate Courts for relief. 

SG: Vinod Dua (2021) Sufficient to Prevent  Section 124A Misuse

Mr. Mehta argued that sedition was a cognisable offence already upheld by a Constitution Bench in 1962. It would not, hence, be appropriate to stay its application. He argued that the SC’s guidelines in Vinod Dua (2021) were sufficient to prevent misuse of Section 124A. Pending cases, he argued, were in the hands of the trustworthy Judiciary—not police or local authorities. He further argued that police Superintendents may be made responsible to ensure no misuse of the provision in all new cases. 

Senior Advocate  Kapil Sibal, leading arguments for the petitioners, vehemently opposed this proposal. He stated that there had been a sea change in Constitutional Law after Kedar Nath, which had only assessed Section 124A against Article 19(1)(a) of the Constitution of India, 1950, protecting the Right to Free Speech and Expression. Since then, Fundamental Rights were interpreted to  be interconnected with R.C. Cooper. Sedition, he said, is unconstitutional when considered with the combination of Articles 14,19, and 21, protecting equality, speech, and liberty respectively. Mr. Sibal emphasised that the petitioners were not asking for the deferral of hearings—it was the Union that had created this situation. Nothing short of an interim stay on the application of the law would be enough, he argued. 

Citing the Union’s deferral affidavit, the Court stated that the Union agreed that the rigours of sedition did not match India’s current social milieu.  To maintain balance between the State’s interests and citizen’s civil liberties, the Bench hoped the government would not apply Section 124A until it re-examined the law.