The Supreme Court (SC) on Wednesday put on hold the colonial-era penal provision of sedition and asked the Union and state governments to refrain from registering any first information reports (FIRs) under the sedition provision, Section 124A of the Indian Penal Code (IPC), till review of the law by Union government is complete.
On Tuesday, the apex court had sought the Union government's response on putting the law in abeyance in the interest of the people till it completes the re-examination of the law.
In an interim order, a bench headed by chief justice NV Ramana said it would be appropriate to put the provision—which carries a maximum penalty of life imprisonment—in abeyance until the Union government reviews it.
The SC declined to entertain the Union government's request not to stay the operation of the provision. And, also pointed at needing to balance civil liberty and sovereignty of the State, in view of several instances where the law was misused.
The bench, also comprising justice Surya Kant and justice Hima Kohli, says, "It will be appropriate not to use this provision of law till further re-examination is over. We hope and expect the Union government and states will desist from registering any FIR under section 124A or initiate proceedings till the re-examination is over."
The apex court said the Union government is free to issue additional directions to the state governments and scheduled the hearing of pleas challenging the validity of the sedition law in the third week of July.
The bench said those jailed under the law or facing prosecution could approach the courts for relief. Solicitor general (SG) Tushar Mehta, representing the Union government, had earlier contended that section 124A should not be put in abeyance since the constitution bench upheld its validity in 1962 in the Kedar Nath judgement.
Today, the Union government proposed issuing an advisory to the state governments that only a police officer of the rank of superintendent of police (SP)—who may record in writing the reasons for a case involving sedition provision (Section 124A of the Indian Penal Code)—as it cannot prevent police from registering a cognizable offence under sedition provision.
SG Mehta submitted that the Union government proposes that a police officer of the level of SP or above should decide, for now, on whether a sedition charge should be filed in future FIRs. He added that as the government reviews the sedition law, pending sedition cases can be reviewed, and the courts can decide on the bail application of those under Section 124A IPC, expeditiously.
Senior advocate Kapil Sibal, representing one of the petitioners, contended that section 124A has become prima facie unconstitutional and the apex court must stay the application of the sedition provision till the Union government reviews the provision.
Mr Mehta submitted that as far as pending cases are concerned, the gravity of each case is not known, maybe there is a terror angle, and also, the pending cases are before a judicial forum. "We need to trust the courts," he added.
Justice Kant told Mr Sibal, "What is this argument...Can it be struck down today?"
The bench added that it is looking for an answer who can be an impartial authority, in the view of Union government's proposal, and asked Mr Sibal what an arrangement in the interregnum can be done.
On Tuesday, the SC had sought the Union government's response on pending and future cases registered under the sedition law.
The ministry of home affairs (MHA) in its affidavit said the prime minister of India has been cognizant of various views expressed on the subject and has also periodically, in multiple forums, expressed his clear and unequivocal views in favour of the protection of civil liberties, respect for human rights and giving to the constitutionally cherished freedoms to the people of the country.
The home ministry added that the PM has repeatedly said that one of India's strengths is the diverse thought streams that beautifully flourish in the country. The ministry said the PM believes that at a time when the nation is marking Azadi Ka Amrit Mahotsav (75 years of Independence), as a nation it is essential to work harder to shed colonial baggage that passed its utility, which includes outdated colonial laws and practices.
"The government of India, being fully cognizant of various views being expressed on the subject of sedition and also having considered the concerns of civil liberties and human rights, while committed to maintain and protect the sovereignty and integrity of this nation, has decided to re-examine and re-consider the provisions of section 124A of the IPC, which can only be done before the competent forum," said the affidavit.
Welcoming the SC judgement, Editors Guild of India (EGI) says, "...this interim order as sedition law has been used far too often by the Union and state governments against journalists in an effort to curb independent reporting. The Guild thanks and appreciates the team of lawyers who worked relentlessly on its petition, led by senior advocate Shyam Diwan, and advocates Prashant Kumar, Govind Manoharan, Amarjit Bedi, Sudipto Sircar and their team."