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In abeyance of Section 124A, a provisional relief

‘To protect democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain’

‘To protect democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain’ | Photo Credit: Getty Images/iStockphoto

In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code. The provision, which criminalises sedition, has been used by successive regimes, including by governments post-Independence, to suppress democratic dissent. Previously, during oral hearings, the Bench, presided by the Chief Justice of India, Justice N.V. Ramana, had indicated that it was of the view that the law was an anachronism, a colonial-era relic. Now, through an order on May 11, the Court has directed governments, both at the level of the Union and the States, to keep “all pending trials, appeals and proceedings” arising out of a charge framed under Section 124A “in abeyance”.

Basis of reconsideration

This direction was issued after the Union government filed an affidavit informing the Court that it had decided to re-examine the law. The deposition, by itself, offered no firm commitment on whether the Government would, in fact, recommend to Parliament a complete removal of Section 124A. But the Bench believed that the offer to reconsider the provision, if nothing else, showed that the Government was in broad agreement with the Court’s prima facie opinion on the matter, that the clause as it stands “is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime”.

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Nestled inside a chapter in the penal code dealing with “Offences against the State”, Section 124A defines sedition as any action — “whether by words, signs, or visible representation” — which “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India”. The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”. The section carries with it the prospect of life in prison. What is more, right from its inception, the offence has been treated as non-bailable. This means that a person arrested without trial has no inherent right to bail. He or she must apply to a judge to seek release.

Munshi amendment ignored

As is only too evident, the law was always meant to be used as a restraint on dissent, to crush any and every form of opposition aimed at the government. Indeed, it was by pointing to these repressive features and to the trials of Bal Gangadhar Tilak and Mohandas Gandhi that K.M. Munshi argued so forcefully in the Constituent Assembly to delete the use of the “equivocal” word “sedition” as a permitted restriction on free speech. Should the word not be deleted from the Draft Constitution, Munshi said, an “erroneous impression would be created that we want to perpetuate 124-A of the I.P.C”.

Munshi’s amendment sailed through. The adopted Constitution did not permit a restriction on free speech on the grounds of sedition. But despite this, governments across India continued to charge people with the offence. In the 1950s, two different High Courts struck down Section 124A as offensive to freedom. But, in 1962, in Kedar Nath Singh vs State of Bihar, a five-judge Bench of the Supreme Court reversed these verdicts. The Court paid no heed to the debates that informed the Constituent Assembly. Instead, it found that Section 124A was defensible as a valid restriction on free speech on grounds of public order. However, while upholding the clause, the Court limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.

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Quite apart from the limitations that it read in — which are by themselves ill-defined — the decision ignored the otherwise wide amplitude of the words used in Section 124A. It failed to recognise that terms such as “disaffection towards the government”, which are fundamentally vague, ought to have no place in a penal statute, and that, all along, the intention behind criminalising sedition was to quell the right to dissent. A supposed circumscription of the ambit of the offence was, therefore, never going to be effective.

Marginalised most affected

Since then, in its application by law enforcement — and indeed by judges hearing petitions for bail — the limitations imposed in Kedar Nath Singh have rarely been observed. And in recent years, we have seen an enhanced exploitation of the law, where even the most benign acts of opposition have been met with a charge of sedition. As is often the case with abuses of this kind, it is the most marginalised sections of society that have faced the brunt of the harm.

An altered landscape

It is no doubt true that a law cannot be invalidated merely because it has been subject to misuse. But in the case of sedition, the rationale for the decision in Kedar Nath Singh and the survival of Section 124A have both become untenable with time. Since 1962, when the judgment was handed out, the Supreme Court’s reading of fundamental rights has undergone a transformative change. For instance, the Court has, in recent times, struck down penal laws on grounds, among other things, of imprecision in their language, and of the chilling effect that the restrictions have on free speech. Moreover, since 1973, sedition has also been treated as a cognisable offence; that is, the police can arrest persons suspected of having committed the offence without a warrant.

This altered landscape meant that when fresh challenges were mounted against Section 124A, the time to reconsider Kedar Nath Singh had clearly arrived. This reconsideration could have been done in different ways. The Court could have constituted a Bench of five judges to take a formal call on whether the judgment required express overruling. Alternatively, the Court could have treated its earlier verdict as a ruling rendered per incuriam; that is, as a decision that was rendered in ignorance of binding precedent and law.

How then, one might ask, could the Court have granted a temporary suspension of the provision? This the Bench did based on the Union government’s affidavit indicating a willingness to re-examine Section 124A. The affidavit allowed the judges to temporarily halt their exercise of judicial review and to issue instead an interim order of the present kind: where the provision will be kept in abeyance until the Government, and Parliament, take a final call on the matter. To be sure, the Government has offered no plain pledge on what it might eventually choose to do. This only means that should the state choose to retain the law the Court can still step in.

In the long run, the decision in Kedar Nath Singh will require a clear disavowal. But in nullifying Section 124A, albeit for the present, the Court has provided provisional relief — allowing those accused of the offence to both seek bail in terms of the order, and to have their trials frozen.

“The essence of democracy,” as Munshi put it in the Constituent Assembly “is criticism of government.” The sedition law disregards this core spirit. It criminalises censure and opposition and it enervates, to the point of exhaustion, the basic structure of a democratic republic.

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What the laws must have

If we have indeed seen the back of Section 124A we must see it as a success for freedom. But this result will be meaningless if our governments are allowed to replicate their use of sedition through the invocation of other statutes, on equally baseless grounds — various preventive detention laws and the Unlawful Activities (Prevention) Act, among others, have been repeatedly deployed as a means not merely to protect the country’s security but also to crack down on genuine acts of peaceful dissent and opposition. To protect our democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain. For that, each of our penal laws must be animated by a concern for equality, justice, and fairness.

Suhrith Parthasarathy is an advocate practising in the Madras High Court


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Printable version | May 16, 2022 12:49:59 pm | https://www.thehindu.com/opinion/lead/in-abeyance-of-section-124a-a-provisional-relief/article65417140.ece