In a major development in the cases challenging the constitutional validity of sedition offence, the Supreme Court on Tuesday asked the Central Government why it cannot issue a direction to the State Governments to not register FIRs under Section 124A of the Indian Penal Code till the re-examination process(which the Centre said it is undertaking with respect to this colonial provision) is over.
A bench comprising the Chief Justice of India NV Ramana, Justice Surya Kant and Justice Hima Kohli raised this query in the light of the latest stand taken by the Centre whereby it has requested the Court to defer the hearings till it completes the process of reconsidering Section 124A IPC.
When the bench asked Mr.Tushar Mehta, the Solicitor General of India, how long the reconsideration process will take, he replied, "I am not able to give an accurate reply. The process has started".
The bench said that it can accept the request to defer the hearing to await the Centre's decision but expressed concerns about the continuing misuse of the provision, which even the Attorney General shared.
"We should not appear that we are unreasonable. Now, there are concerns. One is cases which are pending. And misuse. AG other day said even for chanting Hanuman Chalisa sedition case was taken. How are we going to protect these issues?", CJI Ramana asked.
"The filing of FIRs and investigation are done by State Govts. Centre does not do", the SG said. The SG added that there are constitutional remedies available against misuse of the provision.
"We can't ask everyone to go attend the courts and be in jail for months. When Government itself has shown concerns about misuse how will you protect them?We have to balance... there are people who are jailed and people who are going to be booked.One there are pending cases, and two there are people who are going to be booked. Please make your stand clear on this", the CJI said.
"You have used the word "competent forum" will re-examine. Why not the Central Government through your Ministry issue a direction to States that matters under Section 124A IPC be kept in abeyance till the issue is under reconsideration?", Justice Surya Kant asked.
"Why don't you instruct the States to not proceed with the matter till the issue is under reconsideration?", Justice Hima Kohli also joined in support.
The SG said that one can't say anything about the facts and gravity of future cases.
"I don't think in the history of this country this court passed an order directing a penal provision not being used", the SG said.
"We are not talking about all provisions. Section 124A only", the CJI replied. The bench said that there are other penal provisions to address serious offences.
"If something serious happens, there are other penal laws to take care. It is not like that enforcement agencies are helpless", Justice Surya Kant said.
The Solicitor General submitted that the 1962 Constitution Bench decision in Kedar Nath case has struck a fine balance by reading down Section 124A. He said that last year also, in the Vinod Dua case, the Supreme Court turned down a plea to form a scrutiny committee for sedition FIRs, saying it is a matter for the Parliament to decide.
"Mr.Mehta, in Kedar Nath the provision was melted down. In 2021 also. But at ground level, who is operating? The local police is operating. Unless you issue a direction, that you are reconsidering the provision and no cases be registered...", Justice Kant observed.
"Mr.Mehta, we are making it very clear. We want instructions. We will give you time till tomorrow. Our specific queries are, one about pending case and how govt will take care of future cases? These are the two issues on which we want Govt to respond", the CJI said,
The Solicitor General agreed to get back tomorrow after getting instructions.
Senior Advocate Kapil Sibal, appearing for the petitioners, objected to the Centre's plea to defer the hearing by saying that Court cannot be asked to stop hearing a constitutional challenge. Sibal also prayed that no cases for sedition should be registered pending the Centre's review.
Senior Advocate Gopal Shankaranarayan quoted from the Sanjeev Coke case to say that Centre's affidavit cannot speak on behalf of the Parliament.