Supreme Court freezes British-era sedition law till it is re-examined

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The Supreme Court on May 11 restrained the Centre and States from registering FIRs, continuing any investigations or taking any coercive measures under Section 124A (sedition) while the colonial provision is under reconsideration.

A three-judge Bench led by Chief Justice of India N.V. Ramana directed that in case any fresh case was registered under the provision, the accused was free to approach the court concerned, which would provide relief taking into account the order of the Supreme Court to freeze the use of Section 124A for the interregnum as well as the “clear” stand taken by the Union to reconsider the law due to glaring abuse of the law by authorities.

The court ordered that appeals and proceedings under Section 124A should be kept in abeyance for the time being. However, proceedings under other sections of law would continue.

The court gave the Union of India liberty to issue a directive to States and authorities to comply with the Supreme Court order.

The Bench, also comprising Justices Surya Kant and Hima Kohli, said the court’s interim order would be followed until further orders.

The court said it was even willing to consider bail for any of the petitioners, but did not record it in the order as none of the petitioners was affected. The court listed the sedition case in the third week of July.

The order came after the Centre, represented by Solicitor General Tushar Mehta, acknowledged that the law was not in tune with the current times, was being misused and required re-examination.

The government had urged the court to pause its hearing of a batch of petitions challenging Section 124A until the government completed its “reconsideration process” of the sedition provision in the Indian Penal Code.

The Bench, however, did not give a deadline for reconsideration of the law, probably on the consideration that it would involve a lengthy legislative process

“The court is seized of two considerations, the security of the State and the civil liberties of citizens. There is a request to balance both considerations, which is a difficult exercise,” Chief Justice Ramana read out from the short order, prepared after the court took a small break from hearing arguments on Wednesday.

The CJI said the case of the petitioners was that the provisions dated back to 1898 and even pre-dated the Constitution itself.

The court referred to Attorney General of India K.K. Venugopal’s submissions referring to certain “glaring instances of abuse of Section 124A” like the recent booking of persons under sedition for chanting the Hanuman Chalisa.

“Therefore, we expect the re-examination of the provision to be completed and governments to not use the provision in the meanwhile,” the court observed.

The Bench said it had to freeze the use of Section 124A while the re-consideration process was on in the interest of justice.

In the morning, prior to the delivery of the order, Mr. Mehta had submitted that Section 124A represented a cognisance offence and the authorities could not be prevented from registering cases under the provision.

He had, however, proposed that a senior officer at the level of the Superintendent of Police (SP) could scrutinise the facts of individual cases prior to registration of FIRs in a bid to prevent any abuse.

Mr. Mehta had said that there could not be a blanket ban or freeze in the prosecution of pending cases under Section 124A.

“We do not know the gravity of offences involved in these cases… Some may also involve charges of terrorism and money-laundering,” Mr. Mehta argued for the Centre.

He said the accused persons in these pending cases could individually approach the courts for relief.

“There is no reason to distrust the judicial process,” Mr. Mehta said.

He said bail applications under Section 124A could also be heard expeditiously. The law officer urged the court to pronounce an interim order on these lines proposed by the government until the re-consideration of the sedition law was completed.

Senior advocates Kapil Sibal and Gopal Sankaranarayanan, for the petitioners, objected to the Centre’s proposal.

“Section 124A is per se unconstitutional… We have not come to court for a stay of the provision. We want the court to strike it down,” Mr. Sibal contended.

“The Centre says an SP can do pre-FIR registration scrutiny… You have anyone else in mind to do it,” Justice Kant asked the senior lawyer.

“We don’t want to go to anyone… The Section is itself unconstitutional,” Mr. Sibal replied.

“You want us to declare Section 124A unconstitutional today itself… Don’t answer like that,” Justice Kant shot back.

“Many are in jail,” Mr. Sibal said.

Justice Kohli intervened to explain that the court was “only exploring what the situation should be in the interregnum”. After this, the Bench retired to their chambers to discuss and prepare the order.

On Tuesday, the court had indicated a willingness to pause its hearings until the government re-examined the law of sedition. However, the court had wanted a clear answer by Wednesday on how it intended to protect the interests of people already arrested and facing prosecution under Section 124A. The court had further sought the government’s response on whether the use of the British-era law could be suspended in view of the reconsideration process.

The twist in the sedition case was brought about by an affidavit filed by the Centre in May 9 that it would re-examine Section 124A, inspired by Prime Minister Narendra Modi’s “belief” that the nation should work harder to shed “colonial baggage”, including outdated laws, while celebrating 75 years of Independence under the banner ‘Azadi Ka Amrit Mahotsav’

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