Supreme Court adjourns challenge to sedition provision again, hearing now in August

The Union government requested the adjournment, submitting that it is at the final stages of consultation on the constitutionality of Section 124A of the Indian Penal Code, and may introduce an amendment in this regard in the next session of the Parliament.

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THE Supreme Court has adjourned the hearing of a batch of petitions challenging the constitutionality of Section 124A of the Indian Penal Code, 1860 (IPC) relating to the offence of sedition once again.

In an order passed yesterday by a division Bench of Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice J.B. Pardiwala, the court adjourned the hearing to the second week of August.

The adjournment was granted on the Union government's submission that it was in the "final stages of re-examining" the provision. It was hinted at by the Attorney General for India R. Venkataramani that the provision may be updated by the Parliament in the upcoming monsoon session of the Parliament.

The division Bench was in the process of hearing a batch of 16 petitions challenging the validity of the provision on sedition.

In May last year, the court had expressed "hope and expectation" that Union and state governments will restrain from registering new cases or taking any coercive measures invoking Section 124A. All pending trials, appeals and proceedings involving the provision were ordered to be kept in abeyance.

It was contended at the outset of the hearing by certain petitioners that the matter be referred to a seven-judge Constitution Bench of the Supreme Court, since the seminal judgment in Kedar Nath Singh versus State of Bihar (1962) on the applicability of the provision was delivered by a Bench of five judges.

In Kedar Nath Singh, the Supreme Court had limited the applicability of the provision to "activities involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace."

It was further submitted by the petitioners that the grounds for challenging a provision or statute are wider now, in comparison to when Kedar Nath Singh was pronounced, especially in view of the 'chilling effect' doctrine; a basis to challenge laws that may not be directly censoring free speech, but nonetheless have the impact of self-censorship.

The request for reference was opposed by Venkataramani on the ground that the process of consultation by the government is yet to conclude.

In an affidavit filed last May, the government had proposed to the court to "await the exercise of reconsideration to be undertaken by the Government of India before an appropriate forum."

Accepting Venkataramani's request, the CJI indicated that the matter may be adjourned till July this year. Though, as the Bench began dictating the order, Venkataramani suggested postponing it to the first or second week of August, since that is when the monsoon session of the Parliament is likely to begin.

"The consultations are at a substantially advanced stage," the Bench noted regarding the government's submission in its order.

Immediately afterward, senior advocate Gopal Sankaranarayanan, for the petitioners, interjected to ask the court to recall that while hearing petitions seeking the recognition of the right to privacy as a fundamental right in 2017, the government had promised to introduce a Bill in the Parliament, which has not happened yet. "The government cannot keep coming saying 'We're considering. We're considering'." 

The 16 petitions filed at the Supreme Court include those by Major General (retd) S.G. Vombatkere; human rights body the People's Union for Civil Liberties; journalist Kishorechandra Wangkhemcha; the Editors Guild of India; journalist, author and economist Arun Shourie; journalist and social activist Patricia Mukhim; journalist Anuradha Bhasin; the Journalists Union of Assam; and member of Parliament Mahua Moitra.

"Let us re-examine first" Union government

As a three-judge Bench of then CJI N.V. Ramana and Justices Surya Kant and Hima Kohli began hearing the petitions in May last year, the then Attorney General K.K. Venugopal had argued against a reconsideration of Kedar Nath Singh by a larger Bench, but added that the court "must consider and lay down guidelines to be applied in cases of Section 124A" to prevent its misuse.

Soon after, it was argued by the Solicitor General of India Tushar Mehta that there was no need to re-examine the constitutionality of Section 124A, as the judgment in Kedar Nath Singh had withstood the test of time.

On May 9 last year, an affidavit was filed by the government submitting that it is "fully cognisant" of the various concerns about civil liberties and human rights relating to the sedition provision, and that the Supreme Court may not invest time in examining the validity of the provision. The court should "be pleased to await the exercise of reconsideration to be undertaken by the Government of India before an appropriate forum", the affidavit stated.

"The Prime Minister of India has … expressed his clear and unequivocal views in favour of protection of civil liberties, respect for human rights and giving meaning to the constitutionally cherished freedoms by the people of the country," it was submitted.

The "re-examination" was presented as part of a wider effort by the government to scrap "outdated colonial laws and practices". It was claimed that the Prime Minister believes that "at a time when our nation is marking 'Azadi Ka Amrit Mahotsav' … we need to, as a nation, work even harder to shed colonial baggage."

While admitting that there are divergent views on the subject, the government had also forwarded the presumption that it is "generally accepted by everyone in legitimate State interest" that a penal provision to deal with "serious offences of divisive nature affecting the very sovereignty and integrity of the country" is required.

Taking the above affidavit into consideration, the Supreme Court on May 11 last year had noted that it was clear that the government agrees with the prima facie opinion expressed by the court that Section 124A "is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime".

At a later hearing on October 31 last year, Venkataramani had submitted that "the matter is still engaging the attention of the relevant authorities" and asked for additional time so that "appropriate steps can be taken", as the court order records.

The court had also recorded his assurance that in view of the interim directions issued by the court, "every interest will be protected and as such there would be no prejudice to anyone". At his request, the court had adjourned the matter to January 9 this year.

Section 124A almost stayed

In the operative part of the order dated May 11, 2022, the court had expressed the "hope" and "expectation" that the Union and state governments would refrain from registering any first information report (FIR), continuing investigation, or taking coercive steps under Section 124A while the matter was under reconsideration.

The court had added that if a fresh case was registered under the provision, then the affected party would be at liberty to approach the concerned court for appropriate relief.

One substantial relief granted by the Supreme Court through the order was in regard to pending proceedings under Section 124A. The court had held that all pending trials, appeals and proceedings shall be kept in abeyance.

Advocate Hamza Lakdawala and law student Navjot Punia have documented on The Leaflet instances where persons charged of sedition were able to secure bail citing the Supreme Court's order, which had technically not imposed a stay on the operation of the provision.

'Appropriate forum'

As noted above, the Union government, through its affidavit, has asked the court to "await the exercise of reconsideration to be undertaken by the Government of India before an appropriate forum", without expressly naming the forum.

The Union Ministry of Home Affairs constituted a national level committee in July 2020 for suggesting changes in Indian criminal law. The committee comprised several academics, an advocate and a former district and sessions judge.

The committee submitted its report in March 2021 making recommendations on various provisions of the IPC, including Section 124A, but its submission was not followed by an official press release by the Press Information Bureau and the report itself is yet to be made public.

The members of the committee primarily held two schools of thought with regard to Section 124A: either completely withdraw the law or amend the wording of the provision, as per an unnamed official quoted by The Hindu in May last year.

"There was an overwhelming consensus on the misuse of sedition law. The law is misused to detain or arrest people for long periods without trial. The law should be amended so that indiscriminate arrest can be avoided," the official was quoted as saying.

What lies ahead?

The Union government has taken an identical position in the data protection case where it has assured the court that a new legislation will be introduced in the next session of the Parliament. In the Election Commission of India appointments case, the argument that the Parliament is the appropriate forum to fill legislative voids, if any, was rejected. Meanwhile, in the ongoing marriage equality case, the primary submission of the government is that the matter should be left to be decided by the Parliament or state assemblies.

Having submitted that a penal provision to deal with "serious offences of divisive nature affecting the very sovereignty and integrity of the country" is required, it is possible that a criminal law amendment is brought before the Parliament which narrows the wording used in Section 124A or replaces it with a newly titled provision having the same or similar effect.