Sedition case in Supreme Court: Government may have gained time, but its options are limited

The Supreme Court's decision to await the Government's response on Wednesday on how best to protect the civil liberties of citizens from the abuse of the sedition law means there are only limited options to satisfy the petitioners' concerns.

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WHAT began as a day of high expectations that the sedition matter would finally be heard by a Constitution bench of seven judges ended with a whimper when the court agreed to wait for the Union Government's promised review, and finally settled for the low-hanging fruit of a set of guidelines to ensure that the provision is not misused during the interregnum. The argument of the petitioners' counsel, senior advocate Kapil Sibal that it is for the judiciary to examine the constitutionality of the law under challenge, and it cannot compromise its obligation merely on the ground that the government has promised to review the same, seemed attractive to the three-judge division bench, but it did not want to appear less accommodative of the government's concerns either.

As a result, the Supreme Court on Tuesday asked the Centre to apprise it about its views on the issue of protection of interests of citizens till the colonial-era penal law on sedition is reconsidered by it. The bench, headed by Chief Justice of India, N.V. Ramana, and comprising Justices Surya Kant and Hima Kohli, took note of the submissions of the Centre that it has decided to "re-examine and reconsider" the sedition law by an "appropriate forum" and sought its response to a suggestion that the filing of sedition cases in future be kept at abeyance till re-examination.

Solicitor General Tushar Mehta, appearing for the Centre, said that he would take instruction from the government and apprise the bench on Wednesday.

"We are making it very clear. We want instructions. We will give you time till tomorrow. Our specific queries are: one about pending cases and the second, as to how the government will take care of future cases…", said the bench

The Union Ministry of Home Affairs, in an affidavit filed before the Supreme Court on Monday, said the decision was in tune with the views of Prime Minister Narendra Modi on shedding colonial baggage that has passed its utility. It noted that in that spirit, over 1,500 outdated laws had been scrapped since 2014-15. The government also claimed to have ended over 25,000 "compliance burdens" which were causing unnecessary hurdles to the people. "Various offences which were causing mindless hindrances to people have been decriminalised. This is an ongoing process. These were laws and compliances which reeked of a colonial mindset and thus have no place in today's India", the affidavit had declared.

In today's hearing, however, the Solicitor General Mehta played a different tune by suggesting that the sovereignty and integrity of the nation are at stake, and therefore, it is hazardous to ask states not to use this penal provision. He also asked the court to ponder whether in its history, it has ever asked a penal law not to be used. The petitioners challenged the contention that Section 124A of the Indian Penal Code dealt with sovereignty and integrity of the nation by pointing out that it only penalises hatred or disaffection against the government.

The bench responded by saying that there are other penal provisions which can deal with the same offence, which section 124A aimed to punish. When the Solicitor General responded that there are guidelines in the Vinod Dua judgment of the Supreme Court from last year to prevent the misuse of the sedition law, the bench preferred to wait till Wednesday, when Mehta could have consultations and return with concrete proposals for the interim period till the government completes its review of the impugned provision.

But its decision to accommodate the government's concerns by giving it one more day to take instructions on effective measures to prevent its misuse during the interregnum till it completes its review raised the question of whether it has already made up its mind to defer its hearing on the question of reference to a larger bench. That would be unfortunate because the options before the court and the government do not appear to be viable.

One option for the Centre is to write to the state governments requesting them to use the sedition law only in very limited cases, in which its ingredients are attracted, namely, when appeals to violence, so as to threaten public order, are issued. A letter by the union government to all the states and union territories is not binding on the latter, and can only be an advisory. The Supreme Court's advice to the Centre to consider the option of writing to the state governments not to use the law till it completed its review, may not mean much on the ground. Even if the Centre agrees to do so, its non-compliance by the state governments cannot be legally challenged.

The Centre, as happened in the case of three farm laws, can announce the repeal or amendment of sedition law, to incorporate necessary safeguards to prevent its misuse. But it does not have the power to keep the law in abeyance when it is already being enforced by the state governments.

The Supreme Court, on September 5, 2016, had issued an order asking the authorities to be guided by the principles laid down in the case of Kedar Nath Singh versus State of Bihar (1962). In Vinod Dua, the Supreme Court held that every journalist is entitled to protection in terms of Kedar Nath Singh. But these pronouncements meant nothing in the absence of any effective guidelines or directions to the authorities.

Therefore, the Centre's stand on the issue, and how the Supreme Court will respond to it, will be keenly watched on Wednesday.