Can you tell states to keep sedition law in abeyance, SC asks Centre

The Supreme Court on Tuesday sought the Centre's response on protecting citizens' interests by putting at abeyance the lodging of sedition cases till re-examination of the colonial era penal law.

The apex court agreed that the re-look of the provision be left to the Centre which has filed an affidavit in this regard.

It, however, expressed concern over the continuous abuse of the provision and even suggested that guidelines may be issued to stop the abuse or a decision to keep the law at abeyance till the exercise of re-look of the law is completed.

The top court, which was to decide whether a three or five-judge bench should hear the batch of pleas challenging the validity of the sedition law, took note of the fresh stand of the government that it wanted to "re-examine and reconsider" it.

Quoting the Centre's recent affidavit, which referred to Prime Minister Narendra Modi's views on issues like the shedding of ”colonial baggage”, protection of civil liberties, and respect of human rights, a bench headed by Chief Justice N V Ramana said, ”What we feel is that the State has said they want to do something… We should not be unreasonable.”

The bench, also comprising Justices Surya Kant and Hima Kohli, said, ”Our specific query is on two issues. One is about the pending cases and the second is, how the government will take care of future cases till the reconsideration. These are two issues. Nothing else.”

It asked Solicitor General Tushar Mehta to apprise the stand of the Centre on Wednesday when it may pass some orders.

Referring to the possible ”misuse’ of the provision, the bench said even the attorney general had said as to how the law was invoked even for chanting ‘Hanuman Chalisa' and asked the Centre to come up with some response. 

”We are making it very clear. We want instructions. We will give you time till tomorrow. Our specific queries are: one about pending cases and the second, as to how the government will take care of future cases...” said the bench.

The law officer said the filing of FIR and the investigation are done by the states and the Centre has no role in them and there are constitutional courts for granting remedies against any misuse of the provision based on the facts of each case.

"We cannot ask everyone to go attend the courts and be in jail for months. When the government itself has shown concerns about misuse then how will you protect them? We have to balance. There are people who are jailed and people who are going to be booked ... Please make your stand clear on this," the bench said.

The bench also asked how much time the government will take in reconsidering the law.

To this, the solicitor general said he cannot give the accurate time, but the process has been initiated and from ”the tenor and spirit of the affidavit”, it was evident that there was an application of mind involved in the process.

"You have used the word ’competent forum' and will re-examine it. Why not the central government through its ministry issue a direction to the states that the matters under Section 124A (sedition) of the IPC be kept in abeyance till the issue is under reconsideration,” the bench said.

The law officer said such an order has not been passed by the apex court in the history of this country directing that a penal provision be not used.

"We are not talking about all provisions. Section 124A only," the bench said.

The bench said that even in the 1962 judgment of the Kedar Nath Singh case, the provision was ”melted down”, but, at ground level, local police are operating.        

”Unless you issue a direction that you are reconsidering the provision and no cases be registered. They will not act,” the bench said.

At the outset, the senior lawyer Kapil Sibal, appearing for petitioners, opposed the Centre's response saying that the court cannot be asked to stop hearing a constitutional challenge. 

The Union ministry of home affairs in an affidavit filed on Tuesday said the decision was in tune with the views of Prime Minister Narendra Modi on shedding ’colonial baggage’, noting he has been in favour of the protection of civil liberties and respect of human rights and in that spirit, over 1,500 outdated laws and over 25,000 compliance burdens have been scrapped.

”The PM believes that at a time when the country is marking 'Azadi ka Amrit Mahotsav' (75 years since independence), we need to, as a nation, work even harder to shed colonial baggage that has passed its utility which includes outdated laws, colonial laws, and practice,” it said.

Various offences which were causing "mindless hindrances" to people have been decriminalised, it added.

Asserting that it was cognisant of various views and concerns about civil liberties, the Centre at the same time said it was committed to protecting the ”sovereignty and integrity of this great nation”.

In the earlier written submissions on May 7, the Centre had defended the sedition law and the 1962 verdict of a Constitution bench upholding its validity, contending that it had withstood "the test of time" for about six decades and the instances of its abuse would never be a justification for reconsideration.

The top court has been hearing a clutch of pleas challenging the validity of the law on sedition which has been under intense public scrutiny for its alleged misuse to settle political scores by various governments.