By ruling that “it will be appropriate not to continue” with the offence of sedition till the government reviews the provision, the Supreme Court while testing the constitutionality of Section 124A of the Indian Penal Code has raised the bar for the government to invoke the provision. In effect, the law on sedition is suspended till the court hears the case next — in July next year.
“The case of the petitioners is that this provision of law dates back to 1898, and pre-dates the Constitution itself, and is being misused. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa. Therefore, we expect that, till the re-examination of the provision is complete, it will be appropriate not to continue the usage of the aforesaid provision of law by the governments,” the court said in its order.
Although the court did not explicitly stay the provision — no criminal law in force has ever been stayed by the court — it virtually stalls the operation of the provision. For cases already pending trial, the court said they will “be kept in abeyance”, and on registering fresh cases, it said it would “hope and expect” that governments would refrain from registering fresh FIRs, investigating cases or taking any coercive action against accused.
“If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned courts for appropriate relief. The courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India,” the court added.
In underlining the possibility of fresh cases being registered despite the judiciary’s refrain, the Supreme Court has put the onus on the government to ensure that frivolous cases of sedition are not filed to misuse the law. The central government told the court it would issue a directive to states and Union Territories on the new application of the sedition law.
Legal experts fear the language of “hope and expect” might not carry much water as it is often difficult for court rulings to trickle down to the lowest level of governance to curb misuse.
The court’s shifting the burden of deciding the validity of the law to the government is also new territory. The government has not indicated whether Parliament or a separate committee will review the law.
The significant legal question of law before the Supreme Court is whether the 1962 ruling in Kedar Nath Singh v Union of India was correctly decided. The Kedar Nath Singh ruling, which upheld the constitutional validity of Section 124A, held that speech that is likely to incite disruption of public order would amount to sedition. The correctness of that verdict — crucially whether a law on sedition can be an exception to free speech — will have to be decided by a seven-judge bench.
Ultimately, short of Parliament repealing the law on sedition, the court will have to decide the crucial question. Even diluting the provision or replacing it with a new law will have to pass the test of constitutionality before the court.