Sedition, Marital Rape & Section 377 : When Centre Refused To Take A Clear Stand On Constitutionality

Update: 2022-05-09 15:54 GMT

In a major twist in the case relating to the constitutionality of sedition law, the Central Government has requested the Supreme Court to defer the hearing, saying that it has decided to "reconsider and re-examine" Section 124A of the Indian Penal Code.

The affidavit filed on behalf of the Ministry of Home Affairs states that the "Court may not invest time in examining the validity of Section 124A and be pleased to await the exercise of reconsideration to be undertaken by the Government of India before an appropriate forum where such reconsideration is constitutionally permitted".

At the same time, the Solicitor General of India has filed a written statement in the Court saying that there is no justification to reconsider the 1962 Constitution Bench judgment in the case Kedar Nath versus State of Bihar which turned down a plea to strike down Section 124A by reading it down. In December 2021, the Union Law Minister had told the Parliament that there is no proposal to scrap Section 124A IPC.

The Centre's affidavit, filed a year after the Court issued notice on a petiiton challenging Section 124A and almost 10 months after the Chief Justice of India NV Ramana questioned the need to continue the colonial provision in independent India, evades a clear expression of views on the matter. During the last week's hearing, when the bench asked about the prima facie view of the Government regarding the section, the Solicitor General submitted that the issue is still under discussion.

A similar non-committal approach of the Centre was visible during the hearing of cases in the Delhi High Court seeking criminalization of marital rape, where the constitutionality of Exception 2 to Section 375 IPC was under question. The Centre repeatedly requested the Court to defer the hearing saying that it is undertaking a consultative process to review the IPC provisions. However, the High Court refused to accept the request saying "there is no terminal date when the consultation process will get over" and proceeded to reserve judgment after hearing the parties.

In the petitions challenging Section 377 IPC for criminalizing consensual homosexual relations too, a clear stand was not forthcoming from the Centre. The Central Government had filed an affidavit in the matter stating that "it leaves the matter to the wisdom of the Court". This "neutral stand" was not appreciated by the Court. Justice DY Chandrachud, in his judgment, specifically criticized the Central Government for not taking a position in this case.

"We would have appreciated a categorical statement of position by the government, setting out its views on the validity of Section 377 and on the correctness of Koushal. The ambivalence of the government does not obviate the necessity for a judgment on the issues raised. The challenge to the constitutional validity of Section 377 must squarely be addressed in this proceeding. That is plainly the duty of the Court. Constitutional issues are not decided on concession", Justice Chandrachud said in his judgment.

Recently, in the Abu Salem matter, a bench led by Justice SK Kaul expressed displeasure at the Centre's affidavit which said that it is not the "appropriate" time for the Court to decide the plea regarding enforceability of sovereign commitment made to Portugal regarding Salem's sentence not exceedings 25 years. The bench said that it does not apprecaite the tenor of the affidavit.

"As to what this Court has to do or not to do is for the Court to take a call. We do not appreciate the tenor of the affidavit", the bench said in its order which stated "this is the appropriate time to take a call for us on the issue". 

It is for Court to decide constitutional issues : Justice Deepak Gupta

Former Supreme Court judge Justice Deepak Gupta said that he has reservations about the Centre's stand in the sedition case.  

"They never made this request till now. They have been arguing that Kedar Nath does not require reconsideration. I have my doubts".

"Either they should give a definite time line...one month or two months.. but with a vague affidavit saying we will reconsider it...I have my reservations", Justice Gupta added.

"If you want to defer it, then don't file any cases for sedition when you are reconsidering it", he said.

He expressed that the constitutional issues are to be decided by the Courts only.

"I am very strongly of the view that, now that this issue is before the Court, it must be decided. Otherwise, tomorrow if they change it or withdraw it or amend it, they can replace it with some other provision. We have seen, Congress government withdrew POTA and brought all the cases under UAPA".

"I feel that they might be seeing the writing on the wall and want to take political advantage of it", Justice Gupta said.

He reiterated that "sedition has no place in a civilized society". "Criticising the government cannot be a crime", he said while pointing that all parties across the political spectrum have used sedition offence to target critics.


Court not obliged to defer hearing; time limit for review important : Dr Ashwini Kumar

Senior Advocate and former Union Law Minister Dr Ashwini Kumar said that the Court is not obliged to defer the hearing based on the Centre's request.

"Supreme Court is not obliged to defer the hearing. It can continue to hear the matter but will it is a question.There should in any ase be a time line for the Government's review process", Dr.Kumar said.

Highlighting the increasing cases of abuse of sedition law during the recent years, he stressed that an expeditious hearing of the matter is necessary.

"The best way forward will be to set a time-line for the Government for its review process, may be one month or two month. Meanwhile, the Court can continue hearing the matter. And after the review, if the Government repeals the law, it is well and good. If it does not, the Court can proceed to pronounce its judgment", he suggested.

Court not bound to accept Govt request : Sr Adv Rebecca  John

Senior Advocate Rebecca John, who assited the Delhi High Court in the marital rape case as an amicus curiae, pointed out that the High Court did not accept the Centre's request to adjourn the hearing in that case.

"The Delhi High Court did not allow the Union to take this route . It firmly said it would decide the case based on the constitutional challenge . Courts are not bound to accept such a request", she said.

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