Supreme Court Order on Incitement Right is an Important Forward Move

By Harihar Swarup

In a series of petitions challenging the sedition law contained in Section 124A of the Indian Penal Code, the Supreme Court issued a slew of preliminary instructions on Wednesday. Things came to a head as the central government, instead of defending the constitutionality of the provision, proposed to reconsider the law ostensibly because the prime minister wanted it to be revised in the spirit of “Azadi Ka Amrit Mahotsav”.

To provide more context, the court had first heard the petitions in July 2021, with the main challenge being that the previous Supreme Court judgment in Kedar Nath vs State of Bihar (1962), which ruled the validity of Section 124A IPC confirmed, was no longer a good law. The government has been requested to respond to the petitions. If that was not possible by then, the cases were picked up in April 2022.

The court eventually gave it until May 5, but the government again asked for additional time. Notably on this date, the Attorney General of India differed on the position of the Central Government (who was represented by the Solicitor General) stating that although the Act was constitutional, it would be necessary to establish guidelines to prevent abuse of the law . The central government, on the other hand, argued orally that the law was good as it is.

The court gave the central government until May 10 to submit its response, failing which it planned to make a decision on whether it was necessary to refer the challenge to a seven-member bench. Instead, the central government has filed an affidavit saying it will reconsider the law and has requested that the challenge proceedings be suspended. It appears that the court’s oral comments in this case, in which it denounced the abuse of the law, influenced the government’s decision.

The petition took an objective approach to this approach, mainly because such a proposal failed to take into account ongoing cases and continued abuse of facilities while the law would be considered by the government. The national government has asked for one day to include instructions about provisional measures to substantiate the petitioner’s fears. On Wednesday, it proposed establishing a mechanism under which sedition cases would be filed only after an SP-rank officer is justified in writing and such justification would be subject to judicial review. The petitioners, on the other hand, called for a complete suspension of the law. Senior lawyer Gopal Sankaranarayanan has even put forward proposals for a complete suspension of the law, which included the explicit suspension of pending proceedings and the blocking of the registration of new cases.

After some deliberation, the court refused to limit itself to the suggestions of the government and gave directions in the hope and expectation that the state and central governments would refrain from registering new FIRs, continuing the investigation or arresting them. people under Section 124A IPC. Obviously, the warrant has no effect of absolute suspension, as it states that if a new case is registered, the accused would be free to go to the appropriate courts and seek help under the warrant. However, it left it to the discretion of the subordinate court, stipulating that such courts are “asked” to investigate such cases, taking into account its order and the position of the central government.

By issuing such a “request” rather than absolute instructions, the warrant may have left the state and central governments leeway to proceed with the submission, as the sole consequence of failing to comply with the request would be that the accused would again be left at the mercy of the court to request bail or a stay of detention. The order should have been more assertive and explicit in this regard and should have had criminal consequences for non-compliance.

The only absolute direction taken was to hold all pending lawsuits under Section 124A IPC where charges have been filed. However, the language used by courts is appeals and proceedings that would then be suspended, even such appeals where convictions are challenged. The court should have given the appeals courts discretion to take appropriate measures in cases where the accused is detained pending appeal.

The order seems like a small win, but left a lot to be desired. Its implementation on the ground floor also has to be awaited. Lessons should have been learned from the fact that police across the country continued to file FIR under Section 66A of the Information Technology Act, 2000, which was declared unconstitutional, it remained in the statue book. This is due to the lack of knowledge of the local police.

Furthermore, the language of Section 124A IPC is reflected in the Unlawful Activities (Prevention) Act 1967 (UAPA) under the definition of illegal activities that continue to be abused against journalists and civil society across the country, most recently in Kashmir. Nothing prevents the government from simply moving to the UAPA instead of Section 124A IPC. Provisions regarding bail under UAPA are so strict that it is almost impossible to obtain the same. It also elevates the offense of sedition to the level of a federal offense and grants the National Investigation Agency powers to prosecute such crimes.

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

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