Why in news?

A three-judge Supreme Court Bench headed by CJI Surya Kant clarified that courts may proceed with trials, appeals, and proceedings under Section 124A of the now-repealed Indian Penal Code (IPC) — the colonial sedition provision — if the accused raise no objection.

This has partially revived the paused sedition provision for consenting accused persons, triggering significant constitutional and legal debate.

What’s in Today’s Article?

• Background — The May 2022 Order and Vombatkere Case
• What Triggered the Recent Clarification?
• Historical and Legislative Context of Sedition
• Section 152 BNS — The Successor Provision Also Under Challenge
• The Broader Constitutional Framework — Fundamental Rights Are Interconnected

Background — The May 2022 Order and Vombatkere Case

• In May 2022, the Supreme Court ordered all ongoing and future proceedings under Section 124A to be kept in abeyance — effectively pausing the sedition law across India.
• This came in the context of S. G. Vombatkere vs Union of India — a group of writ petitions challenging Section 124A as unconstitutional for violating fundamental rights.
• The court had expressed its "hope and expectation" that the government would not register fresh FIRs or take coercive action under Section 124A while the constitutional challenge remained pending.
• The Vombatkere petitions remain pending before the Supreme Court — meaning the constitutional validity of Section 124A has still not been decided.

What Triggered the Recent Clarification?

• The clarification arose from a Special Leave Petition filed by one Kamran — anxious about his nearly decade-old appeal against conviction under the UAPA, Arms Act, and IPC including Section 124A.
• He and his co-accused were sentenced to life imprisonment by a Sessions Court in Madhya Pradesh in February 2017.
• Their appeal before the State High Court had been stuck in limbo since the May 2022 Supreme Court order. The High Court appeared "reluctant" to hear the appeal while the stay was in force.
• Kamran submitted that he was willing to let the High Court hear the full appeal — including the sedition component.
• The Supreme Court relented and passed a general direction.

Key Constitutional Concerns

• Trial Under a Law Whose Validity Is Undecided
  • The recent clarification raises a fundamental question: can courts continue trials under a law whose constitutionality is still under judicial scrutiny?
  • Since the challenge to Section 124A remains pending before the Supreme Court, lower courts may be required to decide guilt under a provision that could eventually be declared unconstitutional.
• Violation of Equality Before Law
  • The clarification creates a visible disparity in the application of Section 124A. Those who consent — perhaps out of desperation for closure or confidence in their innocence — will face trial.
  • Those who do not consent will wait in indefinite limbo until the Supreme Court finally decides the Vombatkere petitions – a clear violation of Article 14.
• Passed Without Hearing Vombatkere Petitioners
  • The May 21 direction was passed in the unconnected Kamran case — without issuing notice to or hearing the petitioners in the Vombatkere group of matters.
  • This raises serious procedural concerns about the validity of a general direction that effectively modifies the scope of the 2022 order without hearing those directly affected by it.
• Practical Problems in Co-Accused Scenarios
  • The clarification creates practical problems for lower courts — if one accused consents to be tried under Section 124A while a co-accused does not, the court faces a legally untenable situation with different legal standards applying to different accused in the same case.

Historical and Legislative Context of Sedition

• The offence of sedition has been traced to the Statute of Westminster 1275 — enacted when the King was considered the holder of Divine right.
• Section 124A of the IPC was a colonial tool used to suppress political dissent — most famously invoked against Bal Gangadhar Tilak and Mahatma Gandhi.
• Even after Independence, sedition has been viewed with suspicion. PM Nehru described Section 124A on the floor of the Provisional Parliament in 1951 as "highly objectionable and obnoxious."
• Kedar Nath Singh vs State of Bihar (1962)
  • The Supreme Court "read down" Section 124A — holding that a citizen has the right to criticise the government in speech or writing, so long as it does not incite violence or create public disorder.
  • This remains the foundational judicial interpretation of sedition in India.
• Documented Misuse
  • The Attorney General in 2022 shared glaring instances of misuse — including the case where an independent MP and her husband were booked under Section 124A for threatening to recite the Hanuman Chalisa outside the private residence of a former Maharashtra Chief Minister.

Section 152 BNS — The Successor Provision Also Under Challenge

• Section 152 of the Bharatiya Nyaya Sanhita (BNS) — considered the successor to Section 124A — is itself under challenge in the Supreme Court for its ambiguity and potential chilling effect on free speech.
• Critics argue it retains the same essential character as the old sedition law while using different language — making the fundamental constitutional questions unresolved regardless of which provision is used.

The Broader Constitutional Framework — Fundamental Rights Are Interconnected

• The current challenges to sedition provisions urge the Supreme Court to apply post-Kedar Nath precedents — including R.C. Cooper, Indira Gandhi vs Raj Narain, and I.R. Coelho — which established that fundamental rights do not reside in isolated silos.
• A charge under Section 124A or Section 152 that curtails free speech also necessarily affects the right to life and personal liberty under Article 21.
• Each fundamental right animates the others — making sedition not just a free speech issue but a comprehensive fundamental rights question.

Conclusion

The real solution lies not in temporary clarifications but in a final judicial determination on the constitutionality of sedition laws. Until then, citizens remain caught between prolonged uncertainty and prosecution under a provision whose legality is yet to be settled.