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On March 18, 1922, Mahatma Gandhi was convicted under Section 124A of the Indian Penal Code (‘sedition’) which makes it an offence to spread ‘hatred’, ‘contempt’ or ‘disaffection’ against the Union. The Mahatma had remarked: “I know that some of the most loved of India’s patriots have been convicted under it. I consider it a privilege, therefore, to be charged under that section.”
A hundred years later, on May 11, 2022, examining the constitutional validity of S.124-A, the Supreme Court found that this law was intended to support colonial rule and directed that it should not be used till further orders.
The court’s directions
The court’s finding was not guided solely by its prima facie view that Section 124A is invalid. The Union’s affidavit stated that Section 124A was being reconsidered in view of the prime minister’s commitment to the protection of civil liberties from “outdated colonial laws”. The Attorney General highlighted the abuse of Section 124A. The government appeared to agree in principle with the court’s prima facie view, though it opposed a stay. It is in this light that the court found it “appropriate not to continue [its] usage” till its validity is decided.
The court has directed that FIRs should not be registered, investigations should not be continued, and coercive steps (search, seizure, arrest etc.) should not be taken under Section 124A. No one can be subjected to a new sedition case till the Supreme Court decides the validity of Section 124A.
If a fresh sedition case is nevertheless registered, those affected can approach courts “for appropriate relief… taking into account the present order passed as well as the clear stand taken by the Union of India.” The Supreme Court has prima facie found Section 124A unconstitutional and the Union is re-examining the provision. Courts must readily grant bail and quash FIRs in connection with Section 124A.
Cases which are ready for trial shall remain stayed. If Section 124A is one of the offences slapped on the accused, courts may proceed with the trial of other offences only.
Binding on all authorities
The courteous language of the order has raised some confusion. The court says, “we hope and expect”, instead of “we direct” while ordering that no new sedition cases should be registered. But this chivalry does not affect the binding nature of the court’s directions, which is shown by the preceding sentence: “In view of the clear stand taken by the Union of India, we deem it appropriate to pass the following order in the interest of justice…” The authoritative import is clear.
The Supreme Court may use such indirect language for the sake of propriety. Here, for instance, states are not parties; the court’s hesitation in using direct language in passing orders against them is understandable. But the court’s requests are as binding as its orders.
The court has previously said (here and here), that its “requests” are “contained in a judicial order”. The Constitution specifically empowers the Supreme Court to pass any order to do complete justice in any case. It also obliges “all authorities” in India to “act in aid” of the Supreme Court. There should hence be no doubt that all authorities, including the police and courts, are to ensure full compliance. “The language of request” is to be read “as an obligation”.
The road ahead
The order is only an interim arrangement till the court decides the validity of Section 124A. Nonetheless, it is of tremendous significance. It reflects an acknowledgement by the court of the vast ongoing abuse of Section 124A and the chilling effect it has on legitimate political speech. It also reflects a recognition by the Court that certain kinds of speech are protected in a democracy and cannot be prohibited merely because the government does not find it palatable. This recognition is crucial, given the larger social context in which the law of sedition operates, along with other oppressive laws, especially the UAPA.
Shrutanjaya Bhardwaj is a Supreme Court advocate. He is on the team representing one of the petitioners in the sedition challenge.