With sedition, SC has dipped its toes in the civil liberties pool. Now we wait for the dive

Until the safeguards are laid down to prevent misuse of laws like UAPA, NSA or PSA, sedition’s departure might not have too much of an effect on ground.

File photo of the Supreme Court of India | Manisha Mondal | ThePrint

What is common between Bhagat Singh, Shashi Tharoor and Umar Khalid? All three men have been slapped with sedition at some point in their life.

And that’s how the sedition law, under Section 124A of the Indian Penal Code, has survived in this country since 1890. All successive governments, as did the colonial regime, have found a use for the law, which makes it a crime for anybody to bring or attempt to bring “hatred or contempt” or “disaffection” towards the government. It can be by spoken or written words, or signs or visible representation.

The law also managed to survive constitutional challenge, with the Supreme Court upholding it in 1962 in the Kedarnath judgment.

However, 60 years after that verdict, the Supreme Court, within 10 days, saw Attorney General K.K. Venugopal — in his “personal capacity” — being in favour of drawing guidelines to stop misuse of the law, the Centre defending the colonial law but taking a U-turn two days later to submit that it wants to review the provision, and a three-judge bench virtually suspending the law on sedition 132 years after it was first introduced and 12 years after its parent country, United Kingdom, scrapped it. And that is why, sedition is ThePrint’s Newsmaker of the Week.

‘PM favours civil liberties’

Sedition was brought to the Supreme Court’s doorstep by several petitions last year, alleging that the Kedarnath judgment was no longer a good legal principle. The matter was listed for the first time on 15 July 2021, when the court issued a notice to the Centre seeking its response.

The matters were taken up again in April this year, even though the Centre hadn’t filed its response to the petitions. When the petitions came up again on 5 May, the Centre, through Solicitor General Tushar Mehta, demanded more time. But this time, Attorney General Venugopal differed from the stand of the central government and said that while the law was constitutional, it would be necessary to lay down guidelines to prevent its misuse. Mehta, on the other hand, orally argued that the law was fine as it is.

In written submissions filed on 7 May, the Centre again defended the law. But just two days later, on 9 May, it took a U-turn. It filed an affidavit, saying that the Prime Minister 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 went on to say that at a time when the nation is marking ‘Azadi Ka Amrit Mahotsav’ (75 years of independence), the PM believes that we need to “shed colonial baggage”. The Centre told the court that since it was re-examining and reconsidering the sedition law, the court should wait and not “invest time” in examining its validity.

In response, a three-judge bench of the Supreme Court on Wednesday stayed all pending trials, appeals and proceedings that involve a sedition charge.

As for new cases, the order says that the judges “hope and expect that the State and Central Government will restrain from registering any FIR, continuing any investigation or taking any coercive measures” under the law. In such cases, affected parties can approach the courts for “appropriate relief” and “the courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India”.

Hopes and expectations

Finding legal faults with the Supreme Court order could be a drinking game and if you drank a shot for every loophole, it would leave you at least a little tipsy.

For instance, it is clear that the order does not function as an absolute stay, because it says that if a fresh case is registered, the accused would have the option of approaching courts. This means that for fresh cases and for pending ones, those with access to lawyers will be able to enjoy the benefits of this stay, while those without the means might not be able to.

It is also unclear whether a three-judge bench of the Supreme Court could have passed such an order, when the constitutional validity of the provision had been upheld by a five-judge bench in 1962.

The fact that Section 124A officially stays in the statute books could also prove to be a problem. Take the case of Section 66A of the Indian Penal Code, which was struck down by the Supreme Court as unconstitutional in the celebrated Shreya Singhal judgment in 2015. But the police across the country continued filing FIRs under the provision because it stayed in the statute books. Neither was an amendment brought in to remove it from the books, nor was the local police adequately trained and informed.

Consequently, the Supreme Court had to step in and demand a response from the Centre, six years after Shreya Singhal, in 2021, saying that it was “distressing,” “shocking” and “terrible” that people are still booked and tried under the scrapped provision.

So, the hope and expectation really is that the message from the Supreme Court will percolate down to the courts and the authorities, and that they would abide by it.

Additionally, with sedition being stayed at least till the next date of hearing in July, laws like Unlawful Activities (Prevention) Act (UAPA), National Security Act (NSA), and the Public Safety Act (PSA) still remain in the hands of the authorities to continue the sort of clampdown on free speech that the sedition law allows. In fact, the language used in Section 124A is similar to that used in the UAPA 1967, when it defines “unlawful activities”.

Dipping its toes

But this isn’t to say that the order is not to be celebrated.

In Wednesday’s order, the Supreme Court saw the Centre’s stand as an affirmation of its own prima facie view that “the rigors 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”. It said that it is “cognizant of security interests and integrity of the State on one hand, and the civil liberties of citizens on the other”, and wants to find a way to balance the two sets of considerations.

Therefore, with this order, the Supreme Court has once again begun to dip its toes in the civil liberties pool, at a time when there’s an ocean of challenges pending before it, including the petitions challenging the constitutional validity of certain provisions of the UAPA. It is also much tougher to get bail under laws like UAPA, so until safeguards are laid down to prevent misuse of laws like UAPA, NSA or PSA, sedition’s departure might not have too much of an effect on ground.

It would also be interesting to see how the Supreme Court deals with these constitutional challenges, because times have changed to not just give us a technological revolution (and more platforms to air our views on), but also to give us a Constitution which has since transformed and evolved in many ways.

For instance, the sedition law was upheld in 1962. Since then, the Supreme Court has ruled that the procedure to be used to deprive a person of their life or personal liberty has to be fair, just and reasonable, and not fanciful, oppressive or arbitrary. In the years that have followed, it has recognised the right to a free and fair trial, and speedy trial, commented on the value of human dignity, ruled against undue harassment by state forces, struck down Section 66A of the IT Act on the ground that it uses vague expressions, settled the law on right to privacy, decriminalised adultery, and read down Section 377 of the IPC that criminalised homosexuality.

Now we wait for the Supreme Court to fully dive in.

Views are personal.

(Edited by Prashant)