New Delhi: The Supreme Court Tuesday advised the Narendra Modi government to issue a directive to states to not use the contentious sedition law, as long as the Centre is reviewing its provisions.
The Victorian-era law, mentioned under Section 124A of the Indian Penal Code (IPC), prescribes penalty of imprisonment, or fine, or both, for “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.
A three-judge bench headed by Chief Justice of India N.V. Ramana gave the suggestion to Solicitor General Tushar Mehta when it took up a batch of petitions challenging the constitutional validity of the law. The SG quoted from the Centre’s day-old affidavit to highlight that the Centre had decided to re-examine the law in the wake of its “application and abuse”.
Mehta impressed upon the bench to postpone the hearing on the petitions until a final decision has been taken by the Centre. This plea was opposed by the petitioners, who demanded that further arrests under the law should be stayed.
While the bench agreed to Mehta’s request to adjourn the matter, it asked him how the Centre intends to protect the interest of those who are already booked under Section 124A, and if the provision can be kept in abeyance till the reconsideration is on.
The Solicitor General then said the Centre was not involved in lodging of criminal cases, but states do so. Mehta also said there were constitutional courts for remedial purposes, in case there was a misuse of the law.
Not willing to accept this explanation, however, the CJI said: “We cannot ask each individual booked under this law to approach the court. They get arrested and are put in jail.” He pointed out that even the Centre had admitted to the misuse of the law, leading to violating of human rights and personal liberties.
The bench — also comprising justices Suryakant and Hima Kohli — asked Mehta to return with his response Wednesday morning, and in case the court’s suggestion is not acceptable to the Centre, it will pass an order.
‘Respect stand of government, but…’
The CJI, at the outset, appreciated the government’s stand and read out a paragraph from its affidavit that mentioned about the Prime Minister’s promise to do away with laws reeking of colonialism.
“They are doing a serious exercise on this issue. So, we should not appear we are being unreasonable,” he told the petitioners, who said the review process should not hold up the hearing before court on the constitutional validity of the sedition law.
Justice Ramana then went on to assuage the concerns put forth by the petitioners with regard to pending cases under Section 124A and possible continuance of its potential misuse in future.
“There are concerns. One is (about) cases that are pending and the other about how the law can be abused. Even the Attorney General cited the Hanuman Chalisa case (a reference to the arrest of MP Navneet Kaur Rana and her MLA husband, Ravi Rana, last month, after they announced plans to chant the Hanuman Chalisa outside Maharashtra CM Uddhav Thackeray’s residence). How are you going to protect all this? This question should be answered,” the CJI told Mehta.
“We respect the stand of the government and will accommodate you (give time). But then we have to balance the interest (of those) who are in jail. How will you protect them?” he once again asked Mehta.
The Solicitor General reiterated his earlier argument to say that courts will decide on the basis of the facts of each case. “If it is not sedition, even remotely, then the court will stay the proceedings,” Mehta said.
When the petitioners sought a judicial order to stay the use of the law, Mehta advised the bench not to do so. He said it would be hazardous to direct non-application of an existing penal offence without even knowing the gravity of an offence.
“I don’t think that in the history of this country, the highest court has passed such an order,” he submitted.
It was then that Justice Suryakant proposed to keep the penal law in abeyance. “You take two months, three months, whatever time the competent forum wants. We are all aware of how a law is modified. But why can’t you as the central government issue a directive to states to keep the law in abeyance?” he said.
Justice Kohli too pitched in. “Why don’t you as the Centre indicate to the states that while the review process is on, they in the meantime should not press it (law)?”
Visibly taken aback, Mehta said he did not contemplate the court would throw such queries at him and that he would revert after getting feedback on this from the government. He, however, said the pending cases were already before constitutional courts. As for the future, he said it was difficult to predict what type of offences would take place and that the law is intended to protect the country’s sovereignty and integrity.
Justice Suryakant added: “You can issue directives. There are certain pockets that are sensitive and assuming something happens there, then there are other penal provisions that can be invoked.”
‘State and government are different’
Mehta, however, attempted to convince the bench that in the light of the 2021 Supreme Court judgment in late journalist Vinod Dua’s case (where the SC had quashed a sedition case brought in against him over a YouTube show), the Centre may not be required to issue any directive. He said the top court has, in many judgements, including in the 1962 Kedar Nath Singh case, laid out guidelines on how to proceed and investigate sedition cases.
Giving a quick rebuttal, Justice Suryakant said SC verdicts are hardly followed on the ground level. “The question is who operates Section 124A on the ground level. It is the local police and civil authorities. You issue a directive to keep 124A in abeyance since you are examining the provisions,” the judge said.
Senior advocate Kapil Sibal, appearing for one of the petitioners, said Section 124A is a pre-constitutional law from when the state and government were one. Today, under the Constitution, the state and government are different, he said, demanding no arrests should be made for sedition.
Sibal also contended that the court would have to deal with the constitutional validity of the section, even if the government amends or waters down the law, because previous prosecutions are still pending.
Sibal went on to quote Mahatma Gandhi and Jawaharlal Nehru on the “obnoxious law”.
When Mehta took a dig at this argument by saying that what Nehru could not do then, the petitioners want it to be done now, the court interjected and said: “We can hear constitutional debates later. Mr Mehta, we are making it very clear, you get instructions and we give you time till tomorrow. Otherwise, we will pass an order. We have two specific queries. One is about the pending cases and second how the government will take care of future cases.”
(Edited by Poulomi Banerjee)