Sedition in abeyance: Experts hail Supreme Court order, say democracy doesn't need pre-Constitution laws

In what is being termed as a historic move, the Supreme Court on Wednesday allowed the Central government to review the rigours of the colonial Sedition law while keeping the provision in abeyance for the time being..Among the various foreseeable consequences, the decision could pave the way for the scrapping of Section 124A of the Indian Penal Code in its entirety, depending on the Centre’s re-examination of the provision..In the opinion of legal experts, the move will benefit those facing prolonged incarceration or prosecution, albeit temporarily..For now, however, former Maharashtra Advocate General Darius Khambatta sounds hopeful."This was long overdue and a great step in the aid of freedom of speech and democracy. Free speech is the most critical component of democracy. The Supreme Court I hope, will now strike down Section 124A,” said the senior lawyer..The Maharashtra government had sought his opinion over the Sedition case against cartoonist Aseem Trivedi, who was arrested during the India Against Corruption campaign in 2012.The senior lawyer’s opinion prompted the State government to drop Sedition charges against Trivedi..Similarly, Senior Advocate Mihir Desai, who defended Trivedi in the same case, called the Supreme Court order a “historic” one. “Totally support it,” he remarked..Former Supreme Court judge, Justice Deepak Gupta felt there were only two options open to the Supreme Court - firstly to proceed to hear and decide the matter, which was unlikely to happen soon, with the onset of the summer vacations.“The other was that the government was giving no clear-cut timelines in which it would decide the matter. It was also not very clear in what it was going to do. It was just saying that it was going to have a review. This is one option which has been followed,” said Justice Gupta.He noted that it was essential to realise that the power to make laws lay with the government, and not with the courts.."To strike down the law as unconstitutional is very much in the domain of the courts, but when the authority having the power to make laws says that it wants time, I’m not in favour of giving them as much time as they want. In fact, I suggest that if you look at the chronology of events, the government did not propose this initially,” he pointed out.According to the former judge, the government first opposed even the reconsideration of Kedar Nath Singh, in which a Constitution Bench of the Supreme Court in 1962 upheld the constitutional validity of Section 124A. Subsequently, on realising that the Court was insistent on reconsideration, the Centre said that the decision must go to a five-judge Bench, Justice Gupta highlighted."Which, I think, is a right submission. These three judges cannot reconsider a five-judge Bench judgment,” he said..In its order passed today, the Supreme Court also indicated that aggrieved parties were at liberty to approach courts, which are required to expeditiously dispose of their pleas..Justice Gupta explained that courts might now refer to the Supreme Court's order and say that they don't want to look at Sedition but decide on other offences.The best, he opined, would have been for the Court to decide the case by August or September 2022. “I don’t think the government has clearly indicated...they’re not going to scrap the law, they’re going to make some guidelines. I feel that if the Supreme Court had held it to be unconstitutional, and laid down the reasons, then maybe there would have been better guidelines for the legislature to incorporate such safeguards in the law itself,” he added..Senior Advocate Amit Desai outlined that the Supreme Court order was a positive step for the “much maligned” and “misused” provision of law which had outlived its purpose.He opined that if required, there was there a need to create a new offence for some of the acts that needed to be restrained..“The Section was a pre-Constitution and pre-fundamental right provision. Actions which violate Article 19 rights need protection, since those are vital to sustaining a vibrant democracy. Undoubtedly, hate speech needs restraint as a reasonable restriction to Article 19. But the use of Section 124A to overcome governmental lethargy in legislating a new offence is not correct or justified. The Supreme Court has rightly struck down several provisions in the IPC which have no relevance in today’s society. This is one more such section,” stressed Desai..Similarly, Senior Advocate Sidharth Luthra called it a “positive” decision that was set to relieve many persons from the “archaic” colonial law..Senior Advocate Vikas Pahwa underlined that the decision could facilitate the release of many accused from incarceration, particularly in cases where the offence of Sedition was not prima facie made out.“Hopefully, through this reconsideration, the archaic law on Sedition will be modified to match the sensibilities of the modern India, where the Right to Freedom of Speech is of prime importance in our democracy,” he said..Given the Centre's affidavit acknowledging the need to reconsider the law, the Supreme Court was stated to have rightly passed the direction to keep Section 124 IPC in abeyance till the conclusion of the re-examination exercise. “By keeping the operation of the Section in abeyance, the authorities shall be compelled to examine the matter expeditiously, as the misuse of the offence of Sedition was noticed frequently in various states,” Pahwa highlighted..Senior Advocate Rahul Mehra termed the move as “historic,” though interim.“I am happy that the Central government wasn’t able to frustrate the proceedings by indulging in such dramatic u-turn and blatant delaying tactics. I also salute the Supreme Court for stopping such rampant misuse/abuse of Sedition law which ideally should not be in our statute books anymore,” he said..For Senior Advocate Colin Gonsalves, the Supreme Court order is the “most wonderful” thing to have happened in a long time.“The Court had the enthusiasm to do this. It was long overdue. Maybe two, three decades overdue. I congratulate the Supreme Court,” he said..With the matter now listed in July after the summer holidays, Gonsalves said the only way to deal with the law was to remove it from the statute book.“Kedar Nath read down the Section, but you can’t read down a Section as it still remains in the statute book. An SHO of a police station, after he opens his IPC, will read the Section as it is. He will not read Kedar Nath. You see, words are good enough to make a charge,” he argued..On May 9, the Centre informed the Supreme Court that it had decided to re-examine and reconsider the provisions of Section 124A - an exercise to be carried out only before a competent forum.With Centre undertaking a re-examination of the Sedition provision, it will be interesting to see in July whether a new set of rules and guidelines in tune with present times is formulated or the law will continue to be applied, although in a modified manner..Follow Bar and Bench channel on WhatsAppDownload the Bar and Bench Mobile app for instant access to the latest legal news.