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Landmark ruling: SC orders Sedition law to be kept in abeyance

Apex Court urges Centre and states to refrain from registering any FIRs invoking Section 124-A IPC; those already booked under the section can seek bail

Sabrangindia 11 May 2022

seditionImage courtesy: Bar and Bench


In a historic order on May 11, 2022, Supreme Court has ruled that the Centre and state governments are to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre.

While hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the Indian Penal Code, a bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli, held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice be caused to accused, reported Live Law.

According to the Court’s order, those who are already booked under Section 124-A IPC or those who are still languishing behind bars can approach the courts for seeking bail. The court further held that in case a fresh case is registered, then appropriate parties are at liberty to approach courts for appropriate relief. Accordingly, the court urged the subordinate courts to examine the relief sought by taking into consideration the order passed by this court. Additionally, it directed the Union of India to issue directives to States and Union Territories so as to prevent the misuse of Section 124-A of the Indian Penal Code.

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.

Yesterday when the Court agreed with the Centre’s suggestion to defer the hearing of the petitions challenging section 124-A IPC, the petitioner raised concern over the interest at stake of the people who are already booked under IPC section 124-A or those who are in jail in case the decision on the impugned law was to be delayed any further. Accordingly, the Court granted the Centre 24 hours to respond on the status of pending and future cases until it reconsiders the impugned IPC provision.

LiveLaw reported that the bench had orally remarked, “Mr. Mehta, we are making it very clear, we want instructions. We will give you time till tomorrow. Our specific queries are, about the pending cases and how government will take care of future cases. These are the two issues on which we want the government to respond.”

However, with respect to the future cases that could be filed under the impugned law, the Solicitor General of India, Tushar Mehta reportedly informed the court today that once a cognisable offence was committed it would not be appropriate to stay the effect of the impugned provision either by the Centre or the Court. He submitted that the Centre has accordingly prepared a proposed draft to be issued by the Centre directing that a responsible officer for scrutiny be selected whose satisfaction would be subject to judicial review.

With respect to the pending cases, the SG reportedly submitted that they are not sure of the gravity of each case as some of them have a terror angle while some involve money laundering. Irrespective, SG Mehta reassured the Court that the subordinate courts are to be trusted to deliver justice. The only suggestion offered by him to the court was that the cases at the stage of bail application involving section 124-A IPC be heard and decided expeditiously.

Taking into consideration the Centre’s proposal and attempting to find a viable solution for the pending cases already registered under the impugned section of IPC, Justice Surya Kant suggested that as a fair and impartial authority to scrutinise registration of FIR, the pre-registration FIR scrutiny could be undertaken by the Superintendent of Police, and asked the petitioners if they would prefer any other authority to do so.

However, the counsel for the petitioner, Senior Advocate Kapil Sibal found the Centre’s proposal to be absolutely unacceptable and objected to it strongly. As per LiveLaw, he submitted that the FIR should not go to anybody and that it should be stayed at the first instance itself during the interregnum period. Adding to this, he further stated that they had not approached the Court seeking a stay on the operation of Section 124-A, instead it only came up when it was prompted by the Centre itself.

LiveLaw reported that after a private discussion, the CJI 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.”

Proceedings on May 10

Yesterday, SG Mehta had submitted that the Centre had chosen to re-examine and reconsider Section 124-A IPC and prayed in its affidavit that the Court await such reconsideration to be undertaken before an appropriate forum where it is constitutionally permitted. However, Sibal strongly objected to this stating that this exercise would take another six months to one year. Agreeing with Sibal when the Court asked the Centre to give an estimate of how long the exercise would take, the SG responded that he couldn’t give an accurate reply but assured that there was an application of mind involved in the process.

Justice Kant and Kohli reportedly enquired why is the Centre relying on an “appropriate forum” to re-examine the law instead of engaging themselves in this exercise and also why could the Centre not instruct the state to not proceed with the matter till the issue is under reconsideration. To this, the SG submitted that he needed to seek instructions from the Centre on this matter.

As CJI Ramana acknowledged that there are several concerns regarding the pending cases and the misuse of the provisions, SG responded saying that whenever there is a misuse there are constitutional safeguards. The Court retorted, “We can’t ask everyone to go attend the courts and be in jail for a few months. When the government itself has shown concerns about misuse, how will you protect them? We have to balance the people who are jailed and people who are going to be booked? One there are pending cases, and two there are people who are going to be booked. Please make your stand clear on this.”

Interestingly, Senior Counsel Sibal also brought to light SG’s submission where it was falsely stated that section 124-A IPC mentions sovereignty and integrity of India. Submitting that the said words were only mentioned in Article 19(2) of the Constitution of India, he had urged that no arrests should be made under the impugned law.

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 was 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 complete order may be read here: 

 

Related:

The case against Sedition

Sedition Law: Crushing Dissent in India since 1833

The Draconian Sedition Law in Independent India

SC to consider Constitutional validity of Sedition law, issues notice

Landmark ruling: SC orders Sedition law to be kept in abeyance

Apex Court urges Centre and states to refrain from registering any FIRs invoking Section 124-A IPC; those already booked under the section can seek bail

seditionImage courtesy: Bar and Bench


In a historic order on May 11, 2022, Supreme Court has ruled that the Centre and state governments are to refrain from registering any new FIRs under Section 124-A IPC while it was under consideration by the Centre.

While hearing the petitions challenging the constitutional validity of the offence of sedition under Section 124-A of the Indian Penal Code, a bench comprising Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli, held that all pending cases, appeals and proceedings with respect to charges framed under Section 124-A are to be kept in abeyance, and adjudication with respect to other sections may proceed with no prejudice be caused to accused, reported Live Law.

According to the Court’s order, those who are already booked under Section 124-A IPC or those who are still languishing behind bars can approach the courts for seeking bail. The court further held that in case a fresh case is registered, then appropriate parties are at liberty to approach courts for appropriate relief. Accordingly, the court urged the subordinate courts to examine the relief sought by taking into consideration the order passed by this court. Additionally, it directed the Union of India to issue directives to States and Union Territories so as to prevent the misuse of Section 124-A of the Indian Penal Code.

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.

Yesterday when the Court agreed with the Centre’s suggestion to defer the hearing of the petitions challenging section 124-A IPC, the petitioner raised concern over the interest at stake of the people who are already booked under IPC section 124-A or those who are in jail in case the decision on the impugned law was to be delayed any further. Accordingly, the Court granted the Centre 24 hours to respond on the status of pending and future cases until it reconsiders the impugned IPC provision.

LiveLaw reported that the bench had orally remarked, “Mr. Mehta, we are making it very clear, we want instructions. We will give you time till tomorrow. Our specific queries are, about the pending cases and how government will take care of future cases. These are the two issues on which we want the government to respond.”

However, with respect to the future cases that could be filed under the impugned law, the Solicitor General of India, Tushar Mehta reportedly informed the court today that once a cognisable offence was committed it would not be appropriate to stay the effect of the impugned provision either by the Centre or the Court. He submitted that the Centre has accordingly prepared a proposed draft to be issued by the Centre directing that a responsible officer for scrutiny be selected whose satisfaction would be subject to judicial review.

With respect to the pending cases, the SG reportedly submitted that they are not sure of the gravity of each case as some of them have a terror angle while some involve money laundering. Irrespective, SG Mehta reassured the Court that the subordinate courts are to be trusted to deliver justice. The only suggestion offered by him to the court was that the cases at the stage of bail application involving section 124-A IPC be heard and decided expeditiously.

Taking into consideration the Centre’s proposal and attempting to find a viable solution for the pending cases already registered under the impugned section of IPC, Justice Surya Kant suggested that as a fair and impartial authority to scrutinise registration of FIR, the pre-registration FIR scrutiny could be undertaken by the Superintendent of Police, and asked the petitioners if they would prefer any other authority to do so.

However, the counsel for the petitioner, Senior Advocate Kapil Sibal found the Centre’s proposal to be absolutely unacceptable and objected to it strongly. As per LiveLaw, he submitted that the FIR should not go to anybody and that it should be stayed at the first instance itself during the interregnum period. Adding to this, he further stated that they had not approached the Court seeking a stay on the operation of Section 124-A, instead it only came up when it was prompted by the Centre itself.

LiveLaw reported that after a private discussion, the CJI 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.”

Proceedings on May 10

Yesterday, SG Mehta had submitted that the Centre had chosen to re-examine and reconsider Section 124-A IPC and prayed in its affidavit that the Court await such reconsideration to be undertaken before an appropriate forum where it is constitutionally permitted. However, Sibal strongly objected to this stating that this exercise would take another six months to one year. Agreeing with Sibal when the Court asked the Centre to give an estimate of how long the exercise would take, the SG responded that he couldn’t give an accurate reply but assured that there was an application of mind involved in the process.

Justice Kant and Kohli reportedly enquired why is the Centre relying on an “appropriate forum” to re-examine the law instead of engaging themselves in this exercise and also why could the Centre not instruct the state to not proceed with the matter till the issue is under reconsideration. To this, the SG submitted that he needed to seek instructions from the Centre on this matter.

As CJI Ramana acknowledged that there are several concerns regarding the pending cases and the misuse of the provisions, SG responded saying that whenever there is a misuse there are constitutional safeguards. The Court retorted, “We can’t ask everyone to go attend the courts and be in jail for a few months. When the government itself has shown concerns about misuse, how will you protect them? We have to balance the people who are jailed and people who are going to be booked? One there are pending cases, and two there are people who are going to be booked. Please make your stand clear on this.”

Interestingly, Senior Counsel Sibal also brought to light SG’s submission where it was falsely stated that section 124-A IPC mentions sovereignty and integrity of India. Submitting that the said words were only mentioned in Article 19(2) of the Constitution of India, he had urged that no arrests should be made under the impugned law.

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 was 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 complete order may be read here: 

 

Related:

The case against Sedition

Sedition Law: Crushing Dissent in India since 1833

The Draconian Sedition Law in Independent India

SC to consider Constitutional validity of Sedition law, issues notice

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