A three-judge Bench headed by Chief Justice of India Surya Kant clarified on May 21 that courts may proceed with trials, appeals and proceedings under Section 124A of the now-repealed Indian Penal Code if the accused raise no objection. In effect, the direction partially revived the paused colonial-era sedition provision for those willing to face trial.
The direction came in a special leave petition filed by a person anxious about his nearly-decade-old appeal against conviction under the Unlawful Activities (Prevention) Act, the Arms Act, and several provisions of the 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 remained in limbo after the Supreme Court ordered all ongoing and future proceedings under Section 124A to be kept in abeyance in an interim order on May 11, 2022.
The Supreme Court Bench found that the High Court “appeared reluctant” to hear the appeal while the May 2022 order remained in force. The appellant in this case, Kamran, submitted that he was willing to let the High Court hear the appeal in its entirety, including with respect to sedition.
The Bench relented by passing a general direction that sedition proceedings under Section 124A against consenting accused persons, like Kamran, should go ahead. The court’s decision, apparently, was guided by speedy trial and closure for the accused and reducing the burden on the justice administration system, already groaning under a backlog.
Constitutional questions
However, on the flip side, the Supreme Court’s clarification has exposed consenting accused persons to be subject to a provision which both the court and the government had considered suspect in 2022. The challenge to the constitutionality of Section 124A is pending in the Supreme Court. Multiple writ petitions in S.G. Vombatkere versus Union of India had challenged Section 124A for violating foundational rights.
The pendency of the Vombatkere petitions raises the question whether lower courts would pronounce a judgment on guilt when the constitutionality of the provision was itself suspect. Besides, the May 21 clarification was passed in an unconnected case, Kamran versus State of Madhya Pradesh, without issuing notice to or hearing the petitioners in the Vombatkere group of matters.
Practical problems may also arise for lower courts if one accused is willing to be tried under Section 124A while his co-accused may not. The answer lies in deciding the petitions challenging the colonial provision, and not delivering stopgap clarifications.
The clarification of May 21 further rebels against the fundamental right of ‘equality before the law’. The interim order of May 2022 had expressed the Supreme Court’s “hope and expectation” that the government would not register any fresh FIRs, continue investigation or take coercive measures against people under Section 124A while the challenge to the provision was still alive in the apex court. The order had given affected parties, against whom Section 124A was invoked, liberty to approach courts for relief. It had gone to the extent of directing that adjudication with respect to connected Sections in such cases would proceed only if courts were of the opinion that no prejudice would be caused to the accused. None of these directions was modified on May 21.
Unequal consequences
The clarification may lead to a visible disparity in the working of Section 124A. Trials and court proceedings would resume against the accused who may have consented out of a sense of anguish or were sure of their innocence, while others, not so frantic for closure, would opt to quietly wait it out till the apex court finally decided on the legality of Section 124A. The Supreme Court’s prolonged delay on the Vombatkere petitions leaves vulnerable citizens stranded between a rock and a hard place: either consent to a trial under an undecided law, which carries a life imprisonment, or endure indefinite limbo.
Again, the May 21 direction would mean trial and appeals would resume for consenting accused on a provision which the apex court and the Centre had agreed in 2022 was not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. The Attorney General had, at the time, shared instances of glaring misuse of Section 124A, like when an independent MP and her husband were booked under Section 124A after they threatened to recite the Hanuman Chalisa outside the private residence of a former Maharashtra Chief Minister.
The offence of sedition has been traced to the Statute of Westminster 1275, when the King was considered the holder of the Divine right. Pre-dating the Constitution, the provision has been viewed with suspicion in Independent India. The country’s first Prime Minister, Jawaharlal Nehru, had described the Section on the floor of the Provisional Parliament in 1951 as “highly objectionable and obnoxious”. In 1962, the Supreme Court in Kedar Nath Singh versus State of Bihar read it down to say that a “citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence or with an intention of creating public disorder”.
Burden on State
Even Section 152 of the Bharatiya Nyaya Sanhita, considered a successor to Section 124A, is under challenge in the Supreme Court for its ambiguity, cloaking an immense capacity to have a chilling effect on free speech and expression.
The current challenges to sedition provisions urge the Supreme Court to conform to post-Kedar Nath precedents like R.C. Cooper, Indira Gandhi versus Raj Narain and I.R. Coelho, which established that fundamental rights did not reside in isolated silos or watertight compartments — a curtailment of free speech brought about by a charge under Section 124A or Section 152 would also affect the right to life and personal liberty. The content of each fundamental right animates the others.
The burden is on the State to establish that a “rights-limiting” sedition provision is necessary in a democratic society. It should not be left to affected parties to consent to sedition proceedings out of sheer desperation caused by a delay to decide the constitutionality of Section 124A by none other than the highest court of the country.
Published – May 29, 2026 08:30 am IST
