Supreme Court order on sedition law is a significant step forward

By Harihar Swarup

In a batch of petitions challenging the sedition law, contained in section 124A of the Indian Penal Code, the Supreme Court on Wednesday issued a series of interim instructions. Matters came to a head because the Central Government, instead of defending the constitutionality of the provision, proposed to reconsider the law allegedly because the Prime Minister wanted it to be revised in the spirit of “Azadi Ka Amrit Mahotsav”.

Just to provide more context, the court first heard the petitions in July 2021, where the main line of challenge was that the earlier Supreme Court ruling in Kedar Nath v. State of Bihar (1962) upholding the validity of the IPC section 124A was no longer a good law. The Central Government was asked to submit its response to the petitions. If he did not do so at that time, the matters would be taken up in April 2022.

The court finally granted him time until May 5, but the government sought additional time again. In particular, on this date, India’s attorney general disagreed on the position of the central government (which was being represented by the Attorney General) and stated that while the law was constitutional, guidelines would need to be put in place to prevent the misuse of the law. . The central government, on the other hand, argued orally that the law was fine as it is.

The court gave the central government time until May 10 to file its response, otherwise it intended to decide the question of whether there was a requirement to refer the challenge to a seven-member court. Instead, the Central Government submitted an affidavit declaring that it will reconsider the law and requested that the challenge process be suspended. It appears that the court’s oral observations on the matter, in which it disapproved of the misuse of the law, influenced the government’s decision.

The petition took this approach objectively primarily because the proposal failed to take into account the pending cases and continued misuse of the provision while the law would be under government consideration. The central government sought a day of time to take instructions on precautionary measures to allay the petitioner’s fears. On Wednesday, he proposed to establish a mechanism in which sedition cases would be brought only after a written justification by an SP-ranking officer and such justification would be open to judicial review. The petitioners, for their part, insisted on suspending the law in its entirety. In fact, lead counsel Gopal Sankaranarayanan submitted a proposal for consequential instructions for an outright suspension of the law which, among other things, included the explicit suspension of pending proceedings and a ban on the registration of new cases.

After some deliberation, the court refused to limit itself to the government’s proposed suggestions and passed instructions in the hope that the state and central governments would refrain from registering new FIRs, continuing the pending investigation, or arresting people under section 124A CPI. It is clear that the order does not have an absolute stay effect, as it provides that if a new case is registered, the defendant would be free to go to the appropriate courts and seek redress on the basis of his order. However, it left it to the discretion of the subordinate court by recording that such courts are “requested” to examine such cases after taking into account their order and the position taken by the central government.

By issuing such a “request” rather than outright instructions, the order may have left room open for the state and central governments to proceed with the filing, since the only consequence of not complying with the request would be that the defendant would be left again at the mercy Go to court to apply for bail or suspension of arrest. The order should have been more assertive and explicit in this regard and should have foreseen the criminal consequences for non-compliance.

The only absolute direction approved was to stay all pending lawsuits under section 124A IPC where a charge sheet was filed. However, the language used by the courts is appeals of evidence and proceedings that would later be stayed, even those appeals in which convictions are challenged. The court should have given appellate courts latitude to award adequate relief in cases where the accused is incarcerated while the appeal is pending.

The order appears to be a small victory, but it leaves a lot to be desired. Furthermore, its implementation at ground level remains to be seen. Lessons should have been drawn from the fact that police across the country continued to file FIRs under section 66A of the Information Technology Act 2000, which was declared unconstitutional, and remained statutory. Here the lack of conscience of the local police is to be blamed.

Additionally, the language of section 124A IPC is reflected in the Unlawful Activities (Prevention) Act of 1967 (UAPA) under the definition of illegal activities that continues to be misused across the country against journalists and civil society, most recently in Cashmere. There is nothing to stop the government from simply switching to the UAPA instead of the section 124A IPC. The provisions relating to the bond under UAPA are so strict that it is almost impossible to obtain them. It also raises the crime of sedition to the category of a federal crime and empowers the National Investigation Agency to investigate and prosecute such crimes.

Until safeguards are built in to prevent the misapplication of the UAPA, or even laws like the National Security Act, sedition law will continue to crop up under different names despite orders from the Supreme Court. (IPA service)

Supreme Court order on sedition law is a significant breakthrough move first appeared on IPA Newspack.

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