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SC puts sedition trials on hold until Govt re-examines it, says affected can seek relief

All pending trials, appeals, proceedings relating to IPC Section 124A be kept in abeyance: CJI bench

If any fresh case is registered under Section 124A, affected parties are at liberty to approach concerned courts for reliefs, said the bench. (Photo credit: Dinkar Sasi)

Stating that there is a “requirement to balance… security interests and integrity of the State… and the civil liberties of citizens” and taking into account the “clear stand” of the Centre, the Supreme Court Wednesday put on hold trial in all sedition cases pending before courts across the country until the government completes its promised exercise “to re-examine and re-consider the provisions of Section 124A of the Indian Penal Code” dealing with the offence of sedition.

“All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused,” the bench of Chief Justice of India N V Ramana and Justices Surya Kant and Hima Kohli said in an interim order.

The bench said “we hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration”.

However, indicating that there is no blanket stay on registration of fresh FIRs, the bench said “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” and “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”.

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Besides, it allowed the Centre “to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC”.

The “Directive” placed before the court states that “the interpretation of the Hon’ble Supreme Court in the judgment in Vinod Dua v. Union of India… ought to be scrupulously followed and adhered to” and “an FIR involving Section 124A will be registered only if an officer not below the rank of Superintendent of Police is satisfied and records his satisfaction in writing that the offence alleged involves Section 124A as analysed by the Hon’ble Supreme Court in the captioned judgment”.

In June 2021, a two-judge bench of the Supreme Court, while quashing the charge of sedition against journalist Vinod Dua, had further elucidated on the 1962 Constitution Bench ruling in Kedar Nath Singh v. State of Bihar and said “only such activities which would be intended or have a tendency to create disorder or disturbance of public peace by resort to violence are rendered penal”.

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In the Kedar Nath Singh judgment, the Supreme Court, while upholding Section 124A, had attempted to prevent its misuse by laying down what amounts to sedition and what does not.
Responding to petitions challenging the constitutional validity of Section 124A, the Centre told the bench earlier this week that it is “fully cognizant of the various views” on the subject and “has decided to re-examine and re-consider the provisions of Section 124A”. It urged the bench to defer the hearing on petitions challenging the constitutional validity of the law until such exercise is carried out “before an appropriate forum”. It also urged the court to defer the hearing until the time the exercise is completed.

In its order Wednesday, the bench referred to the government’s affidavit and said “in view of the above, it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigours of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law”.

The court said it is “cognizant of the security interests and integrity of the State on one hand, and the civil liberties of citizens on the other. There is a requirement to balance both sets of considerations, which is a difficult exercise. 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”.

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The bench pointed out that Attorney General K K Venugopal too had “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” (slapping sedition charges against two legislators in Maharashtra over recital of the prayer).

“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 bench said.
Solicitor General Tushar Mehta, who appeared for the Centre, said it had drawn up some guidelines for states and Union Territories to follow keeping in mind that “we cannot prevent a cognisable offence getting registered because that’s the mandate of law”.

On the guideline that there should be supervision by an officer not below the rank of SP before a fresh case is registered, Mehta said “so he stands responsible if matter is to, and will, go to judicial forum. The reason is this – once there is a cognisable offence, the cognisable offence is held to be valid by Constitution Bench, either the government or the court by interim order staying the effect is not the course of action. Therefore, we will say that there has to be a scrutiny, a layer, where some (senior officer) takes the responsibility. Depending upon the gravity, on facts, situations etc, he would say that yes, I am satisfied, register it. And that would be subject to judicial review.”

On pending cases, Mehta said there is concern: “We are dealing with a cognisable offence which is upheld by the Constitution Bench and we are considering an interim arrangement. In that context, first, we do not know the gravity of each of the offences pan India. There may be 124A along with other offences, may be some (money) laundering, may be some terrorist angle, so many angles, we do not know fact, situation and gravity.”

“Ultimately, the pending cases are not with the respective police or governments. They are before judicial forums and there is no reason, in my respectful submission, to not trust the judicial wisdom of the judiciary. Whichever state, wherever the matter is posted — before High Court, sessions court, magistrate court, wherever — they would definitely do that. And what your lordships can consider doing is that when there is a stage of bail application, bail application involving offences under section 124A be decided expeditiously, on facts of the case or merit. But to pass any other order would virtually amount to staying the statutory provision, constitutionality of which is upheld by the Constitution, as of now”.

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He said “no accused is before your lordships. Bear in mind, your lordships are passing an interim order with respect to a cognisable offence, validity of which is, as of now, upheld by a Constitution Bench. At the behest of third parties, in a kind of PIL jurisdiction, it would be a very, very, very bad precedent if they can persuade your lordships”.

Senior advocate Kapil Sibal, appearing for the petitioners, opposed the Centre’s submission and said “this is wholly unacceptable to us for several reasons.”

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“When 66A (of The Information Technology Act) was struck down, this is the exact thing that happened. Because, the power is with the Superintendent of Police and this court struck it down… If the section itself is unconstitutional, it is unconstitutional. Where is the question of giving that part to the Superintendent of Police? What difference is it going to make? He will pass an order, the court will uphold it and he will say that Section 124A is in the statute book, we can do nothing about it. So that’s hardly an answer,” he said.

“At the moment, they are considering what? Not that Kedar Nath Singh (ruling) is good law or bad law, but that because of the sea change in the law, now prima facie Section 124A is unconstitutional. And if this court comes to the conclusion that prima facie it is unconstitutional, an order can be passed staying it.” Sibal recalled that in the case of Section 498A (husband or relative of husband of a woman subjecting her to cruelty), “this court passed a blanket order, (saying) no more arrests because the section was being misused”.

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Sibal said when Kedar Nath Singh was being decided, it was a non-cognisable offence and became cognisable offence only in 1973. “And now we are not going to judge 124A in the context of 19 (1) (a). We are judging 19 (4) (a) in the context of 14, 21 and that the interpretation of 14 and 21 will colour the interpretation of 19 (1) (a) as well. That’s what the law is today. We are not going to judge Kedar Nath on the basis of what the law was. Supposing there is a statutory change, what happens? What do your lordships do? The old statute is no longer there, we judge the constitutionality on the basis of the new statute. The interpretation of the court now is that every section will have to be judged not on the basis of one fundamental right, but on the basis of three fundamental rights,” he said.

Pointing out that the government had said pre-registration supervision must go to the SP, Justice Surya Kant asked Sibal, “According to you, this supervision should go to whom?”

He replied, “Nobody, it should be struck down. It should be stayed.” This did not go down well with the bench. “Please don’t argue in the air. What is this argument that it should be struck down?

Are we hearing today on merit?… Please answer the question. Can we strike it down today?… If the pre-registration is to be supervised by an authority, according to you, who can be that fair, just and independent, impartial authority?” asked Justice Surya Kant.

Sibal said: “I will not be able to answer it for the reason our submission is that this law now has to be looked at afresh in the context of what your lordships have laid down, what is the law today. I am not saying whether it’s constitutional or unconstitutional. Your lordships asked me what we should do. If your lordships are going to hear it, we want the hearing to go on.”
Justice Surya Kant said “we are only exploring a viable solution for the interregnum. That’s all.” Sibal said that for the “interregnum period”, there should be “prima facie stay” of the provision. The judges then took some time to discuss among themselves before pronouncing the order.

First published on: 11-05-2022 at 11:00:15 am
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