Sedition is manipulation

Photo courtesy: TheLeaflet.in

*See the clarification below

The news and electronic media have reported that the sedition law, that is Section 124A of the Indian Penal Code (IPC), has been made inoperative by the Supreme Court of India untill the Centre completes the re-examination of the said Section. The said operation practically means that no State can register an FIR under Section 124A of the IPC.

The Supreme Court first questioned the Centre that whether the court can issue direction to the States for not using Section 124A till the Centre completes its re-examination to which the Centre replied that the constitutional validity of Section 124A has been certified in the Kedar Nath Singh v. State Of Bihar judgment (1962 AIR 955) by a constitutional bench of 5 judges, and therefore, it would be inappropriate to make a constitutionally valid Section inoperative by a bench of three judges. 

The Centre also stated although the criminal law, that is IPC, and the criminal procedure, that is CrPC, both are there in the Concurrent List (under which both the Centre and the State can make laws, Entry 1&2), policing and public order exclusively fall under the State List (under which the State can exclusively make laws, Entry 1&2) subject to the exceptions provided under Article 249, 250 & 252 of the Constitution of India. Therefore, the direction of the Centre to the States for not using Section 124A will not bind the State.

The Supreme Court then went on to order as under: 

'It will be appropriate not to use this provision of law till further re-examination is over. We hope Centre and state will desist from registering an FIR under 124A or initiate proceeding under the same till re-examination is over.'

'We hope and expect the States will refrain from registering any FIR, continuing investigation, or taking coercive steps under 124 A IPC when it is being reconsidered by the Centre.'

A normal English reader would understand that the Honorable Supreme Court of India has issued a combination of recommendations and expectations that both the Centre and States should refrain from using the provision of Section 124A, and therefore, the court has issued no binding direction to the state and Centre debarring them from using Section 124A and such is evident from the following paragraph:

'Should such cases be registered, the parties are at liberty to approach the court. The court to expeditiously dispose of the same.' 

Therefore, the court has issued a non-binding recommendation to the States and Centre not to use Section 124A of IPC but has issued mandatory direction to the courts for disposing of sedition cases if registered by the States and Centre.

Interpreting something could be a subjective exercise but over-interpreting something is a foolish exercise.

*[Clarification by way of an addition

In this article, we had written that the Supreme Court hasn't made Section 124A of the IPC inoperative. 

We just want to clarify by adding that the court has made Section 124A inoperative for the courts but not for the executive, which means the governments are not debarred from registering an FIR under Section 124A but when the case will be presented for hearing before the court, the court will dismiss the case without getting into the merits of the same. This is evident from paragraphs number 8(b)  and 8(c) of the 11th May 2022 order authored in  S.G. VOMBATKERE v. UNION OF INDIA.

Paragraph 8(b) articulates the hope and expectation of the Supreme Court hoping and expecting that the Centre and States will not enforce Section 124A, therefore such is not a direction upon the governments and ergo not binding upon the same. Paragraph 8(c) says that if a new case has been registered under Section 124A, the court hearing the case is requested by the Supreme Court to decide the case by taking into account the present order and stand of the Central government, which means the hearing court is bound by the hope and expectation of the Supreme Court and also by the stand of the Union of Bharat, which virtually says that Section 124A is not tenable in its present form. No court will disrespect the said expectation and hope of the Supreme Court by not upholding the same. Therefore, the three judges bench of the Supreme Court has done things indirectly which it could not have done directly as it cannot stay the operation of Section 124A because it has been upheld by a constitutional bench of five judges of the Supreme Court.

Paragraph 8(d) of the said order can give birth to a question as to how come the Supreme Court can stay the pending proceeding of all the sedition cases as it cannot declare Section 124A inoperative. The answer to the same question is staying a pending case does not make a Section involved in the pending case inoperative however debarring the registration of cases under a Section makes a Section inoperative.

The present judgement of the Supreme Court of India is a master class of driving the car by not sitting inside it but by remaining outside and driving it with a remote.']