Supreme Court Will Soon Hear Pleas Challenging Constitutional Validity of Sedition Law

Nearly seven months after putting on hold the law on sedition, in May 2022, the Supreme Court will soon hear a batch of petitions challenging the colonial-era penal law on Wednesday when the Centre is likely to apprise it of the developments, if any, made while re-examining the provision. The Modi 2.0 government has been stalling making any position public despite three hearings in the matter since May last year.

In a seminal order, the top court had on May 11 last year, 2022, decided to put in abeyance the penal law on sedition till an “appropriate” government forum re-examined it and directed the Centre and states to not register any fresh FIR invoking the offence. The Order passed in the lead matter, S.G. Vombatkere v. Union of India, (2022) 7 SCC 433 was passed by former chief justice of India (CJI), N.V. Ramana and Justice Surya Kant and Hima Kohli.

While putting the law on hold, the bench headed by the then CJI N.V. Ramana had ordered that besides lodging of fresh FIRs, ongoing probes, pending trials and all proceedings under the sedition law will also be in abeyance. It is this part of the order that makes it path-breaking given that in other instances of the Supreme Court of India striking down sections of laws as unconstitutional, state governments and their police continue applying these sections in criminal cases.

The bench had then opined that the “rigours of Section 124A (sedition) of the IPC is not in tune with the current social milieu”, and permitted reconsideration of the provision. “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,” it had said.

Any affected party is at liberty to approach the concerned courts, which are requested to examine the reliefs sought taking into consideration the present order, the apex court had also said. 

During the hearing of the bunch of petitions, the bench had not agreed with the Centre's suggestion that a superintendent of police rank officer be made responsible for monitoring the registration of FIRs for the alleged offence of sedition.

Between 2015 and 2020, 356 cases of sedition -- as defined under Section 124A of the IPC--were registered and 548 people arrested, according to data compiled by the National Crime Records Bureau (NCRB). However, just 12 people arrested in seven sedition cases were convicted in the six-year period. During the critical hearing of the matter first in May and then October 2022, it was senior counsel Kapil Sibal brought to the court’s attention that currently there are 13,000 individuals in jail under the impugned provision of the IPC.

Excerpts from the Order of May 2022 may be read here:

“5. 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 124-AIPC are 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.

6. This Court is cognizant of 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. 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.

7. 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.

8. In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice:

8.1. The interim stay granted in WP (Crl.) No. 217 of 2021 along with WP (Crl.) No. 216 of 2021 vide order dated 31-5-2021 [Aamoda Broadcasting Co. (P) Ltd. v. State of A.P., (2022) 7 SCC 437] shall continue to operate till further orders.

8.2. 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 124-AIPC while the aforesaid provision of law is under consideration.

8.3. If any fresh case is registered under Section 124-AIPC, the affected parties are at liberty to approach the courts concerned 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.

8.4. All pending trials, appeals and proceedings with respect to the charge framed under Section 124-AIPC 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.

8.5. In addition to the above, the Union of India shall be at liberty to issue the directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124-AIPC.

8.6. The above directions may continue till further orders are passed.”

Now, PTI reports that a bench comprising Chief Justice D.Y. Chandrachud and Justice P.S. Narasimha has listed for hearing as many as 12 petitions, including the one filed by the Editors Guild of India, against the law.

The Indian law on sedition, which provides for maximum jail term of life under Section 124A of the Indian Penal Code for creating "disaffection towards the government", was brought into the penal code in 1890, 57 years before India attained Independence and almost 30 years after the IPC came into being. In the pre-Independence era, the provision was used against freedom fighters, including Bal Gangadhar Tilak and Mahatma Gandhi.

The apex court had, in 1962, upheld the validity of the law while attempting to restrict its scope for misuse.

How does Section 124-A read ? "Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in [India], shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine,” reads section 124A (sedition) of the IPC.

October 2022

An interim order by the Supreme Court putting on hold the contentious sedition law and the consequential registration of FIRs will continue as the SC granted more time to the Centre on October 31 to take “appropriate steps” with regard to the reviewing of the colonial-era provision.

Attorney General R Venkataramani had then told the bench that some more time be granted to the Centre as “something may happen in the winter session of Parliament”. The senior most law officer said the issue has been under consideration of the authorities concerned and moreover, there was “no reason to worry” in view of the May 11 interim order, which had put the use of the provision on hold. Come winter session, no progress was made on this front. “In view of the interim directions issued by this court…dated May 11, 2022, every interest and concern stand protected and as such there would be no prejudice to anyone. At his request, we adjourn the matter to the second week of January, 2023,” the bench said.

Other petitions including g those filed by the Editor’s Guild of India and the People’s Union for Civil Liberties (PUCL) were also tagged on to the main petition.

May – July 2022

During the hearings, initially, the Centre through arguments and representations made b y Solicitor General, Tushar Mehta had tried to resist this stay on any application of this draconian section. After arguments, the then CJI, Ramanna had stated,  “The Bench had discussed elaborately and in view of the above, it had found that the Union of India agrees with the prima facie opinion expressed by the Court that the rigours of Section 124A is not in accordance with the current social milieu. It will be appropriate not to use this provision of law till further examination is over.”

With respect to the argument that the Kedar Nath case struck a balance to ensure that section 124-A IPC is not misused, Senior Counsel Sibal argued that the said case was based on Federal Court judgements, in the pre-constitution era where there was no difference between the Centre and the State, reported LiveLaw. He also quoted Nehru who said, “This provision is obnoxious. The sooner we get rid of it, the better. It should have no place”.

Background

On May 5, 2022, the three-judge Supreme Court bench decided to consider the preliminary issue of whether a reference to a larger bench is required as a five-judge bench in the 1962 Kedar Nath case had retained the section after reading it down. It was the Centre’s case that the Kedar Nath case is a good precedent and required no reconsideration. The Centre also reasoned that mere isolated instances of misuse of law cannot be the grounds to question the judgment. On the other hand, the petitioners sought stay on the operation of the impugned provision in case the court decided to refer the matter to a larger bench. Alternatively, they sought direction that no fresh cases be registered under the impugned provision and the pending cases or proceedings be stayed.

A batch of writ petitions had been filed by Army veteran Major-General SG Vombatkere (Retired) and the Editors Guild of India, Former Union Minister Arun Shourie , TMC MP Mahua Moitra, journalist Anil Chamadia, PUCL, journalists Patricia Mukhim and Anuradha Bhasin, and Journalist Union of Assam.

In July 2021, when the Court issued notice on the petitions. According to a report in LiveLaw, the CJI had orally remarked, “Is it still necessary to retain this colonial law which the British used to suppress Gandhi, Tilak etc., even after 75 years of independence? If we go see the history of charging of this section, the enormous power of this section can be compared to a carpenter being given a saw to make an item, using it to cut the entire forest instead of a tree. That's the effect of this provision."

In April 2021, another three-judge bench of Justices UU Lalit, Indira Banerjee and KM Joseph had issued notice in connection with the plea challenging Section 124-A IPC filed by two journalists, namely, Kishorechandra Wangkhemcha from Manipur and Kanhaiya Lal Shukla from Chhattisgarh who have been charged for Sedition in their respective states for comments and cartoons shared by them on social media.

What is the Sedition Law?

The Sedition Law in India was inserted into the Indian Penal Code under Section 124-A in 1870 when Britain ruled India. The section reads as follows:

124A. Sedition.—Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.

Sedition in India owes its origin to The British Sedition Act of 1661, an Act of Parliament of England which was passed as an Act for safety and preservation of his majesty’s person and Government against treasonable and Seditious practices. 

Ironically, UK abolished sedition through the Coroners and Justice Act of 2009 stating, “Sedition and seditious and defamatory libel are arcane offences - from a bygone era when freedom of expression wasn’t seen as the right it is today”.

Bal Gangadhar Tilak and Mohandas Karamchand Gandhi were two prominent leaders who were imprisoned under this Act during the British rule of India. In 1922 when Mahatma Gandhi was charged with sedition, he told the Court, “Section 124A under which I am happily charged is perhaps the prince among the political sections of the IPC designed to suppress the liberty of the citizen. Affection cannot be manufactured or regulated by law. If one has no affection for a person or system, one should be free to give the fullest expression to his disaffection, so long as he does not contemplate, promote or incite to violence.”

The offence of Sedition has been misused by the Government in imprisoning the dissenters, thus negating the freedom of speech guaranteed by the Constitution. A plethora of intellectuals, journalists, social activists, writers, tribal sympathizers, etc. such as Gautam Navlakha, Anand Teltumbde, Varavara Rao, Umar Khalid, to name a few, still languish behind bars under Sedition/UAPA charges with no quick hope of redemption.

The Order has been embedded here