The Supreme Court of India in an unprecedented order in S.G. Vombatkere v. Union of India2 stayed the operation of the contentious Section 124-A3 of the Penal Code, 18604 (hereinafter “IPC”). The Supreme Court in a bunch of petitions challenging the constitutionality of Section 124-A IPC relating to the offence of sedition decided to keep in abeyance all pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC. The Supreme Court also put an embargo on fresh registration of first information report (hereinafter “FIR”) by the police, failing which appropriate relief could be sought by the aggrieved by way of approaching the jurisdictional courts. The above directions passed by the Supreme Court shall continue till further orders are passed.
It is a case in point that the Supreme Court while issuing slew of directions left remarkable lacunae in the order. The author tries to point out in the paper that there are no specific directions issued by the Supreme Court with respect to the accused persons already incarcerated in prison charged under Section 124-A IPC, whose trial is pending before a competent court. The author would endeavour to demonstrate that failure to issue directions in the impugned order pertaining to bail may impede a prisoner's right to life and liberty on irrational grounds.
The first section of the paper summarises the background leading to the impugned order. The second section examines the lacunae in the order by the Court. The author concludes by proposing solutions to remove ambiguity inherent in the order. It is pertinent to state at the outset that the scope of the article is restricted to pointing out glaring lacunae in the impugned order and does not touch upon the discourse on sedition.
Background leading to the Supreme Court's fallacious order in S.G. Vombatkere
The original IPC, 1860 did not have an express provision to punish seditious speech or libel. Section 124-A was later engrafted in IPC in 1870.
Kedar Nath Singh v. State of Bihar5 was the first post-independence case in which the constitutionality of Section 124-A IPC was challenged. The court read down in Section 124-A that “only those expressions that either intend to or have the tendency of causing violence are punishable”. However, the continued unscrupulous use of Section 124-A brought to the fore the misuse of the sedition law in the political landscape. It compelled the Supreme Court in Common Cause v. Union of India6 to issue a direction to all the authorities dealing with the offences under Section 124-A IPC to be guided by the principles laid down by the Constitutional Bench in Kedar Nath Singh v. State of Bihar7.
The Allahabad High Court in Inayat Altaf Shekh v. State of U.P.8 sweepingly expressed that “the unity of India is not made of bamboo reeds which will bend to the passing winds of empty slogans”. The order of Allahabad High Court aptly demonstrates the misuse of sedition law on trivial issues such as sloganeering between students in an India-Pakistan cricket match.
Petitions challenging the constitutionality of Section 124 IPC were filed successively in the Supreme Court. The Supreme Court constituting N.V. Ramana, C.J., Surya Kant, J. and Hima Kohli, J. heard the pleas and stayed the operation of Section 124-A IPC until further orders.
Analysis of the order
The Government of India is fully cognizant of unintended use of sedition law. It has decided to re-examine and reconsider the provision of Section 124-A IPC which can only be done before competent forum. The Attorney General had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the Hanuman Chalisa.
In para 5 of the order, the Supreme Court prima facie agreed with the stand of Union of India that the rigours of Section 124-A IPC are not in tune with the current social milieu and was intended for a time when this country was under the colonial regime. It also suggested that the Union of India may reconsider the aforesaid provision of law.
The Supreme Court, further in para 7 stayed the operation of Section 124-A IPC till the re-examination of the section is complete and passed the following orders in the interest of justice:
(b) State and Central Governments will refrain from registering any FIR, continuing any investigation, or taking any coercive measures by invoking Section 124-A IPC while the aforesaid provision of law is under consideration.
(c) No fresh case shall be registered under Section 124-A. If any fresh case is registered against any individual person under Section 124-A, he may approach the court concerned for appropriate relief. The courts are requested to examine the relief sought in light of the order of this Court in the present case.
(d) All pending trials, appeals and proceedings with respect to the charge framed under Section 124-A IPC be kept in abeyance. Adjudication with respect to other sections, if any, could proceed if the courts are of the opinion that no prejudice would be caused to the accused.
(f) The above directions may continue till further orders are passed.
Direction (c) does not pose any problem since it specifically states that no fresh FIR shall be registered by the police. In an event where a fresh FIR is registered by the police, the aggrieved person may approach the High Court under Section 4829 of the Criminal Procedure Code, 1973 (hereinafter “CrPC”) for quashing the FIR or the Magistrate before whom that person may be produced may release the person booked under Section 124-A on bail and to not take cognizance of the matter any further.
However, direction (d) is problematic since it grants stay on pending trials, appeals and proceedings with respect to the charge framed under Section 124-A without deciding the corollary issues such as grant of bail to the person already incarcerated in prison under Section 124-A IPC.
For example, an FIR was lodged in 2021 against Z under Section 124-A IPC. The trial court took cognizance and trial started against Z. The court remanded Mr Z to judicial custody after the commencement of the trial under Section 30910 CrPC. The Supreme Court later stayed all the pending trials under Section 124-A IPC. What will be the effect of stay on the liberty of Z who is incarcerated in the prison during the pendency of stay order of the Supreme Court? Can he seek bail as a matter of right on the ground that all pending trials under Section 124-A IPC have been stayed by the Supreme Court or will he remain incarcerated in prison during the embargo put by the Supreme Court, both of which substantially affects the right to life and liberty of the prisoner? This issue failed to find any place in the impugned order of the Supreme Court. The court has not specifically issued any directions for the grant of bail to persons already in prison whose trial appeal is still pending in the court of law.
Another problematic proposition is for example, an accused person was acquitted by the trial court under Section 124-A IPC. The State preferred an appeal under Section 37811 CrPC12 against the acquittal order of trial court. The High Court under Section 390 CrPC13 may commit the accused person to prison pending the disposal of the appeal. Let us say, Mr Z was committed to prison by the High Court before the stay on appeal was granted by the Supreme Court in the impugned order. What will be the effect on his liberty? Can he approach the High Court for grant of bail, or will he be incarcerated in prison during the stay order as the High Court cannot hear the appeal in light of direction (d) of the impugned order?
The invidious problem is that the courts may refuse to grant bail to the incarcerated prisoners on the ground that the Supreme Court has not issued any specific directions to release an accused on bail pending the adjudication of constitutionality of sedition law by the Supreme Court, which would affect the right of the accused person of speedy justice guaranteed by Article 2114 of the Constitution.15
The effect of stay order of the Supreme Court is that the pending cases under Section 124-A will be delayed and the effect of it is to release an accused person on bail which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21 as held by Constitutional Bench of this Court in A.R. Antulay v. R.S. Nayak.16
The author argues that an accused person's incarcerated years in prison cannot be restored if the Supreme Court decides the sedition law to be constitutional ultimately. The pending trial, from thereon will proceed, but the incarceration in prison between the stay and revocation of stay order will prejudice the accused, if he is acquitted in any case later on, under the charged section.
The Rajasthan High Court in Aman Chopra v. State of Rajasthan17 quickly followed the suit and ordered the police to not investigate the matter for allegations covered by Section 124-A IPC on the same day the Supreme Court stayed the operation of Section 124-A IPC.
The author argues that the accused person may seek bail on the ground of “change in circumstances” under Section 439 CrPC.18 Another recourse could be had to Section 482 CrPC as there is no specific section in the CrPC which deals with situation wherein the Supreme Court has stayed all the proceedings under a particular section in general, and the proceedings has not been provided. In such cases, the High Court can use its inherent power to grant relief to the incarcerated prisoners while the stay order is in force.
The problem of conflicting opinions could also be resolved by the Supreme Court by filling the gap in the order by issuing a sweeping order for grant of bail to the accused persons incarcerated in prison, pending the adjudication on constitutionality of sedition law or till the re-examination of it is complete, which would uphold the cherished right of life and liberty of the prisoners.
† BA LLB (Hons.) National Law University, Odisha, Law Clerk-cum-Research Assistant, Supreme Court of India. Author can be reached at <email@example.com>.