Centre's Undertaking To Reconsider Sedition Law Not Binding On Parliament, Says Supreme Court On BNS Challenge

The Supreme Court on Friday orally commented that the undertaking given by the Union Government to reconsider the sedition law will not preclude the Parliament from enacting a similar provision.

A bench comprising Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing a petition challenging the provisions of the Bharatiya Nyaya Sanhita(BNS), 2023, particularly Section 152(acts endangering sovereignty, unity and integrity of India), which is questioned as a restoration of Section 124A(sedition) of the Indian Penal Code.

Senior Advocate Menaka Guruswamy submitted that in 2022, the Union Government had given an undertaking that it would review the sedition law. She further said that the Supreme Court had in 2022 kept the sedition law in abeyance by barring the registration of future cases under the provisions. "The Union gave an undertaking that we will be withdrawing the provision (S.124A), but it has been reintroduced. It cannot give an undertaking to this Court and then reintroduce," Guruswamy said.

Not accepting this submission, theCJI said that the Union's undertaking will not bind the legislature. "Union of India may have given an undertaking. But Parliament is not bound by it. This argument does not impress us at all that since the executive authority has given an undertaking, and so the Parliament is barred. The Parliament can ask - who are you to give an undertaking on our behalf. We want to enact the law, let the Court examine," CJI said.

The CJI said that the Parliament has the absolute prerogative to make a law and during judicial review, if it is found that the law is against the Constitution, it can be struck down. Guruswamy said that the concerns expressed by the Court regarding Section 124A IPC remain valid for Section 152 BNS.

Gurusmway next flagged Section 173 of the Bharatiya Nagarik Suraksha Sanhita(BNSS) as violating the Lalita Kumari judgment, since it allows the police an option of conducting a preliminary inquiry before the registration of an FIR in some cases, whereas Lalita Kumari mandated that FIRs must be mandatorily registered if a cognizable offence is made out. She said that giving police the discretion to register an FIR is dangerous.

CJI however said that the Lalita Kumari judgment has also been abused a lot, leading to the proliferation of frivolous FIRs.

"Sometimes judgments are given sitting on ivory towers. That judgment- have you seen what kind of litigation it has generated? Once cognizable offence is disclosed, FIR has to be registered. How much that judgment has been abused in this country? Many times judicial courts are abused. All cantankerous people misuse. Without knowing our societal situations, ground realities and rural communities, without understanding how people are living, we keep on passing judgments in the name of perceived rights, and lead to completely disturbing the fabric of the country," CJI Kant said.

Justice Bagchi said that the law cannot remain crystallised in the Lalita Kumari judgment. Justice Bagchi pointed out that Lalita Kumari judgment also allowed a preliminary inquiry in certain categories, and the new BNSS has merely expanded those categories. Whether the classification is rational or not can be examined, but it cannot be argued that preliminary enquiry is contrary to Lalita Kumari judgment.

Guruswamy however argued that police cannot verify the veracity of the allegations. "Who else will verify?" CJI asked.

The CJI also said that the Court should allow a new law to operate for a few years to examine how it is operating, before interfering on the basis of abstract principles.

Ultimately, the matter was adjourned for hearing after Holi vacations.

Guruswamy was appearing in a petition filed Azad Singh Kataria. Senior Advocate S Nagamuthu appeared in a connected petition filed by the Mannargudi Bar Association, challenging certain provisions of the BNSS.

Case Title: AZAD SINGH KATARIA Versus UNION OF INDIA, W.P.(Crl.) No. 461/2024