Supreme Court’s Sedition Clarification Solves One Problem, Creates Another

Four years later, the challenge to the constitutional validity of Section 124A continues to remain pending.

(Image: Deeksha Malhotra/The Quint)

Last week, the Supreme Court issued an order clarifying the limits of its effective stay on Section 124A of the Indian Penal Code (the erstwhile provision on sedition).

The court said that where an accused charged under the provision consents to continuation of proceedings, courts may proceed notwithstanding the general stay currently operating on proceedings involving Section 124A. The clarification arose in a petition filed by an accused whose appeal challenging his conviction has remained pending because one of the charges against him involves sedition.

At one level, this is understandable and perhaps even necessary. The Supreme Court’s 2022 order staying proceedings under Section 124A did not fully account for the practical consequences that indefinite suspension of proceedings could produce for accused persons themselves, as highlighted in this case.

Yet, the clarification simultaneously raises other institutional and procedural concerns, especially because it repeats the same pattern as before: resolving one immediate problem while failing to adequately account for the broader consequences that may follow.

The Limits of the 2022 Stay

In the 2022 order passed by a bench led by Chief Justice NV Ramana, the Supreme Court was hearing a challenge to the constitutionality of Section 124A. It had recorded that the Union government agreed with the court’s prima facie view that the provision was “not in tune with the current social milieu” and had been intended for “a time when this country was under colonial rule”.

The Union government accordingly expressed its willingness to reconsider the provision. Pending such consideration, the court effectively suspended the operation of the provision by directing the authorities that no fresh FIRs must be registered under it, no coercive measures shall be taken in pending cases, and that all pending trials, appeals, and proceedings involving sedition shall remain in abeyance.

The logic of the order was clear, and the court appeared to proceed on the assumption that the constitutional challenge to sedition would be decided within a reasonable time or that the government itself might reconsider or repeal the provision.

At the time, such an expectation did not appear unrealistic as the Attorney General had acknowledged concerns regarding misuse of the provision, and the Union government through its affidavit had highlighted its commitment to revisiting colonial-era legislation.

The interim order was therefore designed as a temporary arrangement intended to ensure that individuals are not prejudiced during the pendency of the challenge to Section 124A, particularly if the provision were ultimately to be reconsidered, narrowed, or struck down altogether.

Four years later, however, the challenge to the constitutional validity of Section 124A continues to remain pending, much like several other significant matters before the court.

In fact, in 2023, a bench led by Justice DY Chandrachud had referred the matter to the Chief Justice for the constitution of a larger bench. However, that bench has still not been constituted. As a result, an interim order intended to operate temporarily continues to remain in force, without clear guidance on its precise implications.

The Latest Clarification

The recent clarificatory order arose from precisely this situation. The petitioner before the Supreme Court had been convicted under several provisions of the IPC, the Unlawful Activities (Prevention) Act, and the Arms Act, and was sentenced to life imprisonment. His appeal against the conviction remained pending before the Madhya Pradesh High Court.

According to the petitioner, the High Court appeared reluctant to finally decide the appeal because one of the charges involved Section 124A. He therefore submitted that he had no objection to the appeal being heard in its entirety, including with respect to the offence of sedition.

The Supreme Court accordingly clarified its 2022 order and held that where an accused does not object to continuation of proceedings involving Section 124A, courts may proceed to decide such matters on merits.

To an extent, this clarification is perhaps needed. The 2022 order, although well-intentioned, did not fully account for the practical consequences that indefinite suspension of proceedings could produce for accused persons themselves. Criminal proceedings do not merely involve eventual conviction or acquittal; they also affect incarceration, employment, travel permissions, social stigma, and numerous other civil consequences.

In many cases, an accused person may prefer final adjudication on merits rather than indefinite suspension of proceedings pending a challenge that may take years to conclude.

Therefore, the Supreme Court’s clarification attempts to ensure that litigants seeking timely disposal of their case are not prevented from obtaining relief merely because one of the charges involves sedition.

New Questions Emerge

While the court’s concern is understandable, the clarification simultaneously highlights significant gaps. First, the 2022 order did not clearly address the position of accused persons who were already incarcerated when the stay on proceedings under Section 124A was issued, namely, whether they would ordinarily be entitled to bail.

To be fair, the broader tenor of the order did indicate that the court intended to minimise coercive consequences while the constitutional validity of Section 124A remained under consideration. This is evident from the court’s clear direction that no coercive measures should be taken by invoking Section 124A, and its further clarification that any person against whom a fresh FIR was registered would be at liberty to approach courts for appropriate relief.

However, the court stopped short of expressly clarifying the position regarding bail, an oversight that has not been rectified in the clarificatory order either.

Second, the present order also raises concerns regarding the voluntariness of “consent” of an accused. The court has now clarified that proceedings may continue where the accused has no objection. But this raises an obvious question: under what conditions is such consent truly voluntary?

An accused person facing prolonged incarceration, unable to secure bail, and confronted with years of pendency may have little realistic choice except to seek final adjudication of proceedings on merits. This concern becomes particularly acute in cases where the accused belongs to disadvantaged and weaker sections and may lack adequate legal representation or financial resources.

Hence, the court ought to have backed its consent-based exception with procedural safeguards governing such consent. For instance, courts could have been directed to ensure adequate legal representation and, most importantly, independently ascertain the voluntariness of the accused’s consent.

Without such safeguards, the clarification risks creating uneven outcomes where the practical ability to resist continuation of proceedings depends substantially upon resources.

Constitutional Questions Left Hanging

The present order once again highlights the difficulties that emerge when constitutional courts increasingly operate through interim orders rather than reasoned and final judgments.

The 2022 sedition order was extraordinary in scope. Without formally striking down Section 124A, the Supreme Court effectively suspended its operation across the country. Yet, four years later, the constitutional validity of the provision itself remains undecided.

In the meantime, subsequent benches are required to issue piecemeal clarifications to address the practical consequences arising from the original interim framework.

Ordinarily, such an exercise ought to be undertaken by a Constitution Bench after hearing detailed arguments on all aspects of the issue and carefully considering the practical consequences of the directions issued by the court.

This level of rigour and deliberation is rarely possible while issuing interim orders at a preliminary stage of proceedings. At that stage, the court cannot fully account for important questions involving liberty, state interest, criminal procedure, and safeguards. The result is interim arrangements that inevitably produce gaps, ambiguities, and unintended consequences. 

(The author leads Charkha, the Constitutional Law Centre at the Vidhi Centre for Legal Policy. He specialises in constitutional law and administrative law, with a particular focus on constitutional interpretation and judicial review. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)