The Supreme Court has done the nation proud by virtually stalling the operation of Section 124A of the Indian Penal Code (IPC) till the Central government reviews the colonial law under which Mahatma Gandhi and Bal Gangadhar Tilak were arrested and sent to jail. The three-member bench headed by Chief Justice N.V. Ramana took this momentous decision in the light of wanton misuse of the provision to arrest anyone without warrant by invoking the charge of sedition. That there are allegedly 13,000 people in various jails in India, arrested under this section, is a pointer to the enormity of the misuse of the law. What’s worse, this is despite the admission by persons in authority like Attorney General KK Venugopal that the law was abused to victimise those who fell out with those in power. It was against this backdrop that the Centre announced its decision to review the law. It would have been totally incongruous to try and punish people under the sedition law when those in authority say that it should have been removed from the statute long back. There was no political mandate for the law which was drafted by the colonial masters essentially to deal with freedom fighters. That it remained part of the statute for 75 years since Independence is a reflection of the in-application of mind by those in power. More worrisome was the fact that there had been an increase in the resort to the law, especially since the NDA government came to power. It is the second time the apex court has virtually nullified a law.
In January 2021, the court stayed the operation of the three farm laws, hastily enacted by the Modi government, against which there was a countrywide protest. While staying the laws, the court ordered that “no farmer shall be dispossessed of his titles as a result of any action taken under the farm laws”. Similarly, the court has saved all those who are accused of sedition from punishment under Section 124A. An immediate fallout of the verdict is that bail has become the norm in sedition cases. It is unfortunate that instead of appreciating the verdict, Union law minister Kiren Rijiju thought it prudent to hint that the court had crossed the ‘Lakshman Rekha’ that separates the executive, the legislature and the judiciary. He should have remembered that in the case of the farm laws, the government had to take its cue from the court decision and abrogate the laws in due course. One of the first decisions of the Modi government was to junk all the archaic and anachronistic laws like the one that fixed the ferry rates on rivers like the Ganga. It would have been in the fitness of things if the government had included Section 124A also among the laws that were junked in one fell swoop. Why successive governments used the law was because it was easy for the administration and the police to detain anyone whom they found inconvenient for one reason or another. True, the apex court had once upheld the constitutionality of the section but in doing so, it expected the government to follow rigorous conditions for invoking the law. Alas, the court’s advice was thrown to the winds. Small wonder that the court did not heed the government’s suggestion to issue guidelines for using Section 124A.
The ball is now in the court of the government which has to decide what should be done to the impugned section. It can abrogate the section as it abrogated the farm laws or it can replace it with an alternative section that can be invoked only in the rarest of rare cases and with conditions that insulate it from misuse. Allowance has to be made for the fact that the conviction rate in sedition cases has been negligible. In other words, the in-operation of the law will not hinder the work of the custodians of law. The court’s decision is unlikely to benefit detainees like former student leader Umar Khalid and journalist Siddique Kappan as they were not charged solely under Section 124A. In these two cases, they are facing charges under the Unlawful Activities (Prevention) Act, popularly known as UAPA, also. In fact, this points to another danger. Now that the sedition law is on hold, the Central and state governments may be tempted to invoke laws like the UAPA to deal with those against whom they would have used Section 124A. The IPC has provisions to deal with all kinds of crime. Governments want draconian laws under which they can jail persons for years without bail. It does not matter to them that they would eventually escape conviction. Alas, arrest and detention in jail are seen as substitutes for conviction and punishment. That is why Section 124A was dear to those in power.
