6 min readMay 18, 2022 09:34 AM IST
First published on: May 18, 2022 at 04:00 AM IST
The Supreme Court’s seminal intervention in a batch of petitions challenging the constitutional validity of section 124A of the Indian Penal Code is a watershed moment in the progressive expansion of human rights jurisprudence.
Rampant abuse of the archaic colonial law in recent times has infracted the citizens’ right to liberty and legal due process, compromising in the process, their right to reputation and dignity. Cartoonists, journalists, activists, intellectuals, students and politicians have suffered prolonged incarceration and oppressive criminal trials for their convictions and beliefs. More recently, the slapping of sedition charges against political opponents and others in Maharashtra, Punjab, Rajasthan, Chhattisgarh, Tamil Nadu, Andhra Pradesh and Madhya Pradesh have confirmed that the abuse of the sedition law is no longer an aberration. It has become a norm that has hollowed out the constitutional guarantee of fundamental rights and exposed individuals to the rigour of draconian laws unjustly invoked, outraging national sensitivities as never before.
In this contextual framework, the May 11 order of the Supreme Court is largely viewed as an act of judicial statesmanship. Seizing the opportunity provided by the government’s revised affidavit in court seeking time for revisiting the sedition provision, the court, while conceding the government’s request for deferring the hearing, issued its much acclaimed interim directions. These have effectively stayed the ongoing prosecutions under the challenged laws, granting liberty to those in custody for offences under Section 124A to apply for bail to the concerned courts. The court also indicated in no uncertain terms its expectation that the central and state governments will not invoke the impugned provision in the future, till after a final decision in the matter.
In what is seen as a first in judicial history, the Supreme Court has virtually rendered redundant the provision of a criminal law without expressly declaring it as unconstitutional. Its directions, although expressed on a “prima-facie” basis, are a clear pointer to what the court’s final decision could be, should the occasion arise. In an example of judicial statecraft, the court has shielded individuals against a harsh law without trenching on Parliament’s legislative remit or the executive’s command over policy decisions. Leaning decisively in favour of the Constitution’s libertarian conscience, the Ramana court has risen to the nation’s expectation as the constituted guardian of the constitutional principle. Navigating between the “Herculean” and “Sisyphean” conceptions of the judicial role, the court indicated its philosophical preference to “keep a libertarian thumb on the scales of justice”, aligning itself with the collective conscience and moral imagination of the nation. It has shown that the highest court is not immune to finer sensibilities and the “swellings of the heart” when freedom and dignity of individuals is in the balance. The bench of three distinguished judges presided over by the Chief Justice has validated the aphorism attributed to Judge Oliver Wendell Holmes that “judges can be weighty without being heavy”.
Since every judgment has a generative power and a “….directive force for future cases of the same or similar nature”, it is only to be expected that the apex court will ensure a purposive enforcement of its decisions that affirm the sacrosanctity of human rights, a duty repeatedly recognised in its judgments. (Baradakanta Misra, 1974; Nagaraj, 2006; Shayara Banu, 2017; Brajendra Singh, 2016, et al). Exercising plenary jurisdiction, the Supreme Court is expected to see through its suggestions/orders to the government, particularly when these concern the non-negotiable fundamental rights of citizens.
As with the sedition law, it can nudge the government to enact an anti-lynching humanitarian law as suggested by it (Tehseen Poonawala, 2018) and a comprehensive law against custodial torture, considering the proven inadequacy of the guidelines issued by it for its elimination (D K Basu, 1997).
Even as the nation pursues its quest for a truly libertarian and liberal democracy, the scourge of custodial torture continues unabated. A report by the National Campaign Against Torture has confirmed that 1,731 persons died in custody in 2019 alone. The absence of an anti-custodial torture law, a glaring gap in the architecture of the criminal justice system, is inexplicable considering the command of Article 21, recommendations of the Select Committee of Rajya Sabha (2010), the Law Commission of India (2017) and the Human Rights Commission and the judgments of the Supreme Court (Puttaswamy, 2017; Jeeja Ghosh, 2016; and Shabnam, 2015).
It is expected likewise from the court to intervene suitably and read down the UAPA and other criminal laws that have been repeatedly misused to trample upon the civil liberties and rights of the people. Instances of their misuse are etched indelibly in the conscience of the nation. As an organ of the state, the Supreme Court’s suggestive jurisdiction is clearly in accord with its declared law (Nagaraj, 2006) that the state (of which the court is an integral constituent), is under a duty not only to protect individual rights but is also obliged to facilitate the same.
This is indeed the moment to seize, as the government reviews the nation’s legal structures. The initiatives suggested above are in aid of democracy anchored in the inviolability of human rights and would enhance India’s soft power in our engagement with the international community. The court-inspired initiatives would also validate the nation’s preeminent role in the shaping of a new world order.
Governments for their part must know that they can stand only when founded upon liberty and justice. For the present, the prime minister has done well in deciding to revisit a law that is anathema in a free country. Hopefully, the nation will be rid of the last vestiges of colonialism that defy the will of the Age, the promise of our national charter and are at best a painful reminder of the injustices inflicted on our people.
This column first appeared in the print edition on May 18, 2022 under the title ‘Act of judicial statesmanship’. The writer is a former Union law minister
Rampant abuse of the archaic colonial law in recent times has infracted the citizens’ right to liberty and legal due process, compromising in the process, their right to reputation and dignity. 
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