The three-judge bench, presided by the Chief Justice of India, N.V. Ramana, took the bull by the horns, by telling the Centre and the States that it expected them to refrain from initiating fresh cases while keeping the pending ones in abeyance till the completion of Central Government’s promised review.
THE hearing of the petitions challenging Section 124A of the Indian Penal Code dealing with the offence of sedition continued this morning before the Supreme Court bench comprising the Chief Justice of India [CJI], N.V. Ramana, and Justices Surya Kant and Hima Kohli. As the bench took a small break to facilitate discussion among the judges, the suspense grew as to what option it would take, considering the rival contentions of the petitioners and the respondents before it.
But it didn’t take long for the bench to reassemble and pronounce its brief order as the CJI Ramana made it clear that it would be necessary to keep the provision in abeyance. No doubt, the word “abeyance” is not a stay of the provision, as sought by the petitioners. But the word can be said to constitute all the ingredients of “stay” as legally understood.
Indeed, during the hearing, Justice Surya Kant expressed his disagreement with the petitioners’ senior counsel, Kapil Sibal when the latter said striking down section 124A was the only option. When Justice Kant said Sibal was talking in the air, as the bench was not hearing the issue on merits, Sibal corrected himself, and explained that what he meant was stay of the provision.
Sibal also told the bench that the petitioners had to seek a stay because of the supervening circumstances, which had emerged on account of the government’s decision to review the provision, and seek postponement of the hearing for a few months.
The Solicitor General, Tushar Mehta, however, vehemently opposed the plea for stay. He told the bench that the Centre will direct the states to make fresh registration of sedition cases only by the Superintendent of Police, who would be expected to give reasons in writing, which would be open to challenge in court.
Mehta contended that once sedition is recognised as a cognizable offence, and held valid by a constitution bench, staying section 124A would not be appropriate. Sibal, however, made it clear that the proposed safeguard of asking the Superintendent of Police to approve sedition first information reports was not acceptable to the petitioners. He contended that there was a case for staying the provision prima facie, in view of the change in circumstances. The provision became cognizable in 1973, whereas the Supreme Court’s Kedar Nath Singh judgment upholding its validity was delivered in 1962, he noted. To prevent its misuse, the court should ensure that there are no more arrests under it, he submitted.
The bench, in its order, observed in Paragraph 5: “…it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigors [sic] 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.”
In Paragraph 7, the bench held that in view of some instances of glaring misuse of this provision, it expects that, till the re-examination of the provision is complete, it would be appropriate not to continue the usage of the provision by the Governments.
In Paragraph 8 (b), the bench observed: “We hope and expect that the State and Central Governments will restrain [sic] 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”.
In Paragraph 8 (d), it held: “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.”
“It is an all-encompassing order”, said well-known advocate Kaleeswaram Raj, when asked whether there is a subtle distinction between the use of words ‘abeyance’ and ‘stay’, and how the Supreme Court’s order today should be construed as it did not specifically use the word ‘stay’ while asking authorities not to register fresh cases under section 124A till the government completes its review. Raj is the counsel for journalist Sashi Kumar, who has filed an intervention application seeking the striking down of the provision.
While the bench took note of Sibal’s disclosure that currently 13,000 persons are in jail under the provision, observers expressed scepticism about the actual number of prisoners who could get the benefit out of today’s order. It is because most of those facing sedition charges are also being prosecuted under the Unlawful Activities (Prevention) Act.