This post is authored by Dhruv Bhatnagar
On May 11, 2022, the Supreme Court issued a consequential interim order (“Order”) in a batch of petitions challenging Section 124A of the Indian Penal Code, 1860 (“IPC”), which penalises the offence of ‘sedition’. The Order grants the Central Government time to re-examine the validity of Section 124A, and whilst this process is underway, effectively suspends the provision’s operation through these directions:
- it is “hop[ed] and expect[ed]” that the Central and State Governments will refrain from registering fresh ‘first information reports’, continuing investigations, and taking coercive measures under Section 124A;
- persons subsequently charged with sedition can approach courts for appropriate relief and their plea must be considered in light of the Order; and
- pending legal proceedings relating to sedition are to be kept in abeyance. However, proceedings under other penal laws can continue if no prejudice is caused to the accused.
After briefly explaining the offence of sedition and summarising the facts leading up to the current constitutional challenges, this post analyses the Order along three lines – its impact on fundamental rights; relevance for persons facing prosecution and incarceration for sedition; and possible hurdles to its effective implementation.
Section 124A is a colonial law penalising (with up to life imprisonment) expression intended to incite hatred, contempt, or disaffection against the Government established by law. This offence is cognisable and non-bailable, meaning that the accused can be arrested without a warrant and grant of bail is not automatic, but rather subject to the discretion of the presiding court. Pertinently, the offences of ‘sedition’ and ‘seditious libel’ were abolished in the UK through the Coroners and Justice Act, 2009, pursuant to recommendations by UK’s Law Commission. Similarly, in furtherance of the Australian Law Reform Commission’s recommendations, in 201o the Australian Government replaced ‘sedition’ with ‘urging violence offences’ in the nation’s federal criminal law. This reform was introduced to modernise and clarify the elements of criminal offences. Thus, although multiple common law jurisdictions have long discarded sedition from their statute books, this archaic offence unfortunately remains in the IPC nearly 75 years after India’s independence.
Section 124A’s constitutionality was tested in 1962 by a five-judge bench (i.e., a constitution bench) of the Supreme Court in Kedar Nath Singh (analysed here). The provision was declared valid since it was enacted “in the interest of… public order” (¶26). Acknowledging that a broad (or arguably even plain) interpretation of the offence may constitute an unreasonable restriction on free speech under Article 19(2), the Supreme Court limited Section 124A’s applicability to activities inciting violence or having the “tendency to create public disorder…” (¶27). Constitutional law scholars have pointed out that the Supreme Court’s interpretation of Section 124A in Kedar Nath is inconsistent with the provision’s text, which remains overbroad. This interpretative gap has been suggested as a reason for the provision’s misapplication.
Against the backdrop of a sharp increase in the registration of sedition cases, several petitioners, challenged the constitutionality of Section 124A before the Supreme Court in 2021. Multiple petitioners (here and here) argued that:
- Kedar Nath was incorrectly decided because the Supreme Court overlooked the legal standard to legitimately curb speech under Article 19(2). As espoused in Ram Manohar Lohia (decided two years earlier in 1960, analysed here), this standard was a “proximate relationship” (¶13) between speech and apprehended public disorder, not a mere “tendency to create public disorder” (¶27, Kedar Nath).
- Section 124A is inconsistent with later Supreme Court decisions on free speech, including the seminal Shreya Singhal ruling (analysed here) wherein it was held that only incitement to public disorder, and not mere advocacy or discussion a particular cause can be curbed by law.
- Charges under section 124A have been frequently filed against journalists, politicians, and artists (among others), leading to a chilling effect on free speech.
- Section 124A’s broadness violates India’s international law commitments, particularly under Article 19 of the ICCPR, requiring restrictions on the freedom of expression to be necessary and unambiguous.
These petitions were heard by different three-judge benches of the Supreme Court. However, as Section 124A’s constitutionality was upheld by five judges in Kedar Nath, according to the larger bench rule, only a constitution bench having a minimum of seven judges can invalidate Section 124A after conclusively overruling Kedar Nath. Thus, the preliminary question before the bench that passed the Order, comprising of Chief Justice N.V. Ramana, Justice Surya Kant and Justice Hima Kohli, was whether to refer the present-day challenges to a larger bench. The petitions were heard over the course of about a year:
Impact on fundamental rights
The Supreme Court’s intention to prevent unjustified curtailment of fundamental rights through the frequent use of Section 124A is both laudable and clearly represented in its Order. To this end, the Court’s first direction restraining the registration of fresh sedition cases is particularly significant. However, the deferential language used here (“We hope and expect…”) leaves room for ambiguity because:
- As pointed out by a commentator, legally even softly worded requests in judicial orders must be mandatorily followed. However, the language used in the Order may create needless confusion regarding the binding nature of the Supreme Court’s direction amongst authorities required to abide by it, potentially hampering compliance. Pertinently, despite the purpose of this direction being to restrain Section 124A’s invocation, the word ‘stay’ is conspicuously absent. This contrasts with the univocal language previously used by the Supreme Court to stay the operation of contentious farm laws. Given the significance of this direction, the Supreme Court could have phrased the Order in clearer terms.
- Admittedly, the absence of blanket top-down directions affords the State and lower courts discretion to evaluate situations on a case-to-case basis. However, the Supreme Court’s deference towards the State in operationalising its well-intentioned directions may not be beneficial given the periodic application of Section 124A, particularly in recent years. According to the online publication Article 14, there has been a 28% increase in sedition cases between 2014 and 2020, several of which were registered simply for criticising governments and politicians.
Additionally, the Supreme Court’s failure to record detailed reasons justifying its directions dilutes the Order’s precedential value. Had the Supreme Court provided legal reasoning for arriving at its “prima facie opinion” that Section 124A was unconstitutional – such as the provision’s vagueness or incompatibility with subsequent free speech standards – the Order could have been relied upon to buttress similar arguments in cases where other ambiguous penal laws have been challenged. Absent reasons, however, the Order remains highly contextual and neither clarifies nor expands India’s free speech protections.
Admittedly, the Supreme Court’s reluctance to elaborate on its reasons in the Order may be defensible since this was only an interim pronouncement and not a final verdict that reconsidered Section 124A’s constitutionality. However, a reasoned judgment conclusively invalidating Section 124A (as opposed to a government amendment or repeal) would have had a far more enduring impact on Indian free speech jurisprudence. The benefits of such a verdict could have been considered by the Supreme Court before granting the Government’s request for time to re-evaluate the validity of this offence. In light of the Supreme Court’s observations against Section 124A in the Order, it is hoped that the Court will consider issuing a detailed judgment disposing these challenges and conclusively striking-down Section 124A, in case the provision is not repealed by the Government within a reasonable duration.
Relevance for accused persons
The Order provides a strong basis for persons facing prosecution and incarceration for sedition to seek the suspension of legal proceedings and bail. This is evidenced by the Rajasthan High Court’s order directing the state police not to investigate sedition allegations against journalist Aman Chopra because of the Order, and a similar pronouncement by the Kerala High Court staying sedition proceedings against filmmaker Aisha Sultana.
However, for those charged with other offences in addition to sedition, especially under specialised penal statutes like the Unlawful Activities (Prevention) Act, 1967 (“UAPA”), grant of bail is still subject to the stringent conditions prescribed in these statutes. For instance, under Section 43D(5) of the UAPA, bail can be denied if the presiding court is satisfied that the prosecution’s allegations are “prima facie true”. While interpreting this provision in its Watali verdict (analysed here and here), the Supreme Court prohibited a detailed examination of even the prosecution’s evidence for deciding bail pleas, making it far easier to establish a prima facie case and significantly harder for the accused to be granted bail.
Research by Article 14 suggests that in nearly 60% of sedition cases filed between 2010 to 2020, offences from other statutes, including the UAPA and the Information Technology Act, 2000 (“IT Act”), have been invoked alongside sedition. For individuals accused of more than just sedition, including journalist Siddique Kappan who is still in jail on charges under the UAPA, suspension of sedition alone might not bring much reprieve unless it is accompanied by wider reforms or stronger protections by courts.
Challenges in implementation
For effective implementation, the Order would have to be promptly communicated to grassroots-level law enforcement authorities spanning over 16,955 police stations. This is an uphill task considering India lacks a standardised framework for communicating judicial orders on constitutional issues to concerned authorities. The lack of such a framework has been cited by digital rights advocates as the primary reason behind the repeated invocation of the unconstitutional Section 66A of the IT Act, despite its invalidation in Shreya Singhal.
Given this context, the Supreme Court should have considered developing an ad hoc mechanism for ensuring compliance with its Order. It could potentially have directed concerned governments to communicate the Order to law enforcement authorities and to file compliance affidavits. Previously, in Prakash Singh v. UoI (analysed here), the filing of such affidavits was ordered to ensure adherence to the Supreme Court’s suggested police reforms.
The Court could also have included a contempt warning in its Order against non-compliant State authorities. It has previously done so in an order restraining coercive action by the State against persons seeking medical aid online during the second wave of the COVID-19 pandemic. Although it is settled law that contempt proceedings can be initiated by any person aggrieved by the disobedience of general directions intended at achieving constitutional goals, the inclusion of a contempt warning in the Order could have potentially ensured a stronger incentive to comply and apprised those uninitiated in the law about their right to file contempt petitions, if necessary.
Although the Supreme Court’s Order will likely bring some reprieve to persons facing sedition charges, unfortunately, the Order has limited precedential value given the lack of detailed legal reasoning. Further, the Supreme Court’s direction restraining registration of fresh sedition cases, though binding, should have been worded clearly to avoid ambiguity regarding its mandatory nature. Lastly, in the absence of a framework for communicating the Order to law enforcement authorities, implementing it would be challenging. As a mitigant, petitioners may consider requesting the Supreme Court to direct concerned governments to expeditiously communicate the Order to law enforcement authorities across the country and subsequently file affidavits demonstrating compliance.