Contrary to the apprehensions raised by many, high courts, trials courts, as well as police departments across the country have consistently construed the Supreme Court’s May 11 order to hold that section 124A has been stayed in toto and no FIR, arrest, trial, or detention can be allowed to continue under the said charge as long as the Supreme Court order stays in force or the validity of the impugned section is upheld.
The Supreme Court on May 11 stayed the operation of Section 124A of the Indian Penal Code (‘IPC’), that is, the offence of sedition. The Court was hearing a batch of petitions urging it to reconsider its decision in Kedar Nath Singh versus State of Bihar (1962) in light of how drastically jurisprudence in India had evolved on the matter, and to declare section 124A unconstitutional. While the petitioners had urged that the three-judge bench comprising the Chief Justice of India (‘CJI’), N.V. Ramana, and Justices Surya Kant and Hima Kohli, could hear the matter on “new grounds” previously not argued in Kedar Nath Singh, the Union Government objected to the same, stating that the bench would have to refer the matter to a bench of seven judges as Kedar Nath Singh was decided by a Constitution bench of five judges and would thus be binding on the present three judge bench.
Just about when the Chief Justice Ramana-led bench was to decide on if it would hear the petitions itself or refer it to a larger bench, the Union Government filed an affidavit stating that it had decided to “re-examine” and “re-reconsider” the offence of sedition in light of its attempt to dispose and revamp colonial laws. However, the government did not state clearly if it would refrain from enforcing the law while it re-examined and re-considered its validity. Accordingly, the bench passed the following order:
- The interim stay granted in W.P.(Crl.)No.217/2021 along with W.P.(Crl.)No.216/2021 vide order dated 31.05.2021 shall continue to operate till further orders.
- We hope and expect that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration.
- If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief. The Courts are requested to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India.
- All pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC be kept in abeyance. Adjudication with respect to other Sections, if any, could proceed if the Courts are of the opinion that no prejudice would be caused to the accused.
- In addition to the above, the Union of India shall be at liberty to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC.
- The above directions may continue till further orders are passed.
Also read: The government’s gambit to save sedition
Back when the order was pronounced, many felt that the Supreme Court’s order was not an actual stay and was rather only a request to governments to restrain from enforcing section 124A, considering that the order used was worded to say that the court “hoped” and “expected” that the state and union governments would “restrain” from registering any first information report (‘FIR’), continuing any investigation or taking any coercive measures by invoking section 124A while the provision is under consideration. Further the order stated that if any fresh case was indeed registered under section 124A, the affected parties were at liberty to approach the concerned courts for “appropriate relief” and that the courts were to examine the reliefs sought, taking into account the instant order passed by the Supreme Court, as well as the clear stand taken by the Union Government.
Back when the order was pronounced, many felt that the Supreme Court’s order was not an actual stay and was rather only a request to governments to restrain from enforcing section 124A, considering that the order used was worded to say that the court “hoped” and “expected” that the state and union governments would “restrain” from registering any FIR, continuing any investigation or taking any coercive measures by invoking section 124A while the provision is under consideration.
Many lawyers and academics found it hard to say that the order “stayed” the operation of section 124A considering that the wording of the operative part of the order was vague and unclear. What added to the uncertainty was that the Union Government was at liberty to issue directives to the governments of states and union territories to prevent any misuse of section 124A. If the section was to be stayed, what purpose does a directive to prevent misuse serve?
The only thing that was certain was that all pending trials, appeals and proceedings with respect to a charge framed under section 124A were to be kept in abeyance and adjudication with respect to other criminal law provisions, if any, could proceed only if courts were of the opinion that no prejudice would be caused to the accused.
While there was confusion and most people found it hard to reach a conclusive answer as to whether or not the order actually stayed the operation of section 124A, there was broad consensus that the answer to this question would be to know when high courts and trial courts would have to give effect to the Supreme Court’s order.
Considering that almost two months have passed since the order was pronounced, it would be beneficial to examine how courts across the country have applied the operative part of this order in various cases.
Also read: Tracking sedition: From 1857 to the present
News18 journalist Aman Chopra was one of the first to benefit from the order of the Supreme Court. An FIR was registered against him for airing a discussion show named “Desh Jhukne Nahi Denge” and subsequently posting it on his Twitter account. It was alleged that this had resulted in communal disharmony and riots on April 22 in Alwar. A single judge bench of Justice Dinesh Mehta of the Rajasthan High Court on May 11 directed the state police to not investigate allegations levelled against Chopra in light of the Supreme Court’s order keeping section 124A in abeyance.
The Supreme Court’s order also prompted an immediate halt on all proceedings related to sedition in Andhra Pradesh. As per the National Crime Records Bureau and the state crime records, there were only three cases under section 124A registered in Andhra Pradesh between 2014 and 2020. Another case was registered in 2021 by the Andhra Pradesh Crime Investigation Department (‘CID’) against Narsapuram Member of Parliament (‘MP’) Kanumuri Raghurama Krishnam Raju for allegedly indulging in hate speeches against certain communities and promoting disaffection against the government. Speaking to the New Indian Express, a senior police officer from the state stated in May: “The arrested in the three cases registered will be released immediately and proceedings in the case filed against Narsapuram MP will be stopped.”
Following this, on May 25, senior Jammu and Kashmir Peoples Democratic Party leader Waheed Ur Rehman Parra was granted bail after 18 months in a terror-related case by the Jammu and Kashmir and Ladakh High Court. While the division bench of Justices Sanjeev Kumar and V.C. Koul granted him bail considering that there was no prima facie case, it also observed that proceedings with respect to the charge framed under section 124A would be kept in abeyance considering the order of the Supreme Court.
On May 26, the Punjab and Haryana High Court granted bail to two persons who allegedly had links to the U.S.-based secessionist group Sikhs for Justice (which is banned as an unlawful association in India under the Unlawful Activities (Prevention) Act) and were being tried under the sedition law. While granting relief, the single judge-bench of Justice Vinod S. Bhardwaj noted that the constitutional validity of section 124A was pending consideration before the Supreme Court, and the proceedings before the trial court could not even otherwise continue as the entire trial could not proceed independently of section 124A.
Section 124A of the IPC is often invoked along with more serious charges under statutes like the Unlawful Activities (Prevention) Act. The latter carries a bar on bail, and provides for very limited and narrow grounds where an accused may be released on bail. Therefore, an applicant may not be released on bail even if they secure relief in light of the Supreme Court’s order, considering that they may continue to remain in custody for other charges.
Relief was also granted to Lakshadweep-based actor, model and film director Aisha Sultana, who was charged with the offences of sedition and promoting enmity between different religions pursuant to her comments on a TV channel debate. She had said that the Centre used biological weapons for the spread of COVID in Lakshadweep. This statement, according to the complainant, was “anti-national.” While on June 25 last year, a single judge bench of Justice Ashok Menon of the Kerala High Court had granted her anticipatory bail in the matter, on June 8 this year, another single judge bench of Justice A. A. Ziyad Rahman of the high court stayed the proceedings against her for a period of three months based on the Supreme Court’s order.
While allowing investigation to continue under other charges, a single judge bench of Justice C. Manavendranath Roy of the Andhra Pradesh High Court, on June 29 stayed the proceedings in respect of the sedition charge levelled against Yuvajana Shramika Rythu Congress Party MP K. Raghu Ramakrishna Raju under section 124A pending a decision by the Supreme Court on the validity of the impugned section. The CID had charged Raju with promoting enmity between different groups on grounds of religion, race, place of birth or residence (Section 153A of the IPC) and making statements amounting to mischief (Section 505(1)(b) of the IPC), apart from framing charges framed under section 124A.
Jawaharlal Nehru University student leader Sharjeel Imam also moved a Delhi court seeking bail in view of the Supreme Court’s order staying the operation of section 124A. Imam was arrested under section 124A for giving speeches against the Citizenship (Amendment) Act and the National Register of Citizens. On June 11, the court of Additional Sessions Judge Amitabh Rawat was to pronounce the order. However, the parties were informed during the proceedings that the order on the bail application and the case hearing had been adjourned to July 7.
It must be noted that section 124A of the IPC is often invoked along with more serious charges under statutes like the Unlawful Activities (Prevention) Act. The latter carries a bar on bail, and provides for very limited and narrow grounds where an accused may be released on bail. Therefore, an applicant may not be released on bail even if they secure relief in light of the Supreme Court’s order, considering that they may continue to remain in custody for other charges.
The above list is based on independent research using case reporting services as well as cases which have been widely reported in the media. It must be noted that there may be several other cases pending before various courts wherein applicants may have sought similar reliefs but no orders have been passed. There may also be cases wherein relief may have been granted to applicants in light of the Supreme Court order dated May 11 but the said orders have not been uploaded online by the courts concerned or reported by the media.
As is evidently clear from the examples cited above, contrary to the apprehensions raised by many, high courts, trials courts, as well as police departments across the country have consistently construed the Supreme Court’s May 11 order to hold that section 124A has been stayed in toto and no FIR, arrest, trial, or detention can be allowed to continue under the said charge as long as the Supreme Court order stays in force or the validity of the impugned section is upheld.
Hamza Lakdawala: Hamza Lakdawala is a journalism graduate, who is pursuing his LL.B. at Mumbai University.