No Blanket Stay, UAPA Still There: Lingering Concerns Post SC's 'Sedition' Order
"The Supreme Court order substantially helps those who may be accused of sedition," Justice Nandrajog maintained.
A Chief Justice of India-led-bench of the apex court on Wednesday, 11 May, ordered a temporary suspension on the implementation of the colonial-era sedition law.
The top court said that it would be appropriate "to put the provision (sedition) on abeyance" and to "not use this provision till further re-examination of the sedition law is over", and until further orders:
Urged the central and state governments to refrain from registering any FIR invoking Section 124A of the IPC (sedition)
Ruled that if any fresh case is registered, the appropriate parties are at liberty to approach courts for relief
Said that those who have already been booked under the sedition law and are languishing in jails can approach the courts for bail
Directed that all appeals and proceedings under Section 124A be kept in abeyance
Further, according to the top court, “…it is clear that the Union of India agrees with the prima facie opinion expressed by this Court that the rigours of Section 124A of IPC (sedition) is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime.”
Several legal experts, including former judges, hailed the order as being "excellent", "right move" and "historic", but some also came forward to flag concerns.
These concerns include:
That there is no blanket stay on the operation of the sedition law, which means that the state may still continue to book people under the law, who might then have to run circles around various courts for relief
The suspension of the law does not entail quashing of the existing cases or even acquittal. The order only says you can approach existing courts for bail, but a case does not cease to exist just because an accused is out on bail
Only those charged with sedition may approach a court for bail. Those who have been charged with sedition and any other cognisable offence may continue to be incarcerated. Besides, with this provision no longer available for fresh cases, the state or central governments may turn towards even more stringent laws to stifle dissent
No Blanket Stay
"We that the State and Central Governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of IPC while the aforesaid provision of law is under consideration," the top court said in its order on Wednesday (emphasis added).
Thus, evidently, they did not place any blanket stay on the sedition law.
Stating that the order is "of course, a good order", Justice Pradeep Nandrajog — former Chief Justice of the Rajasthan and Bombay High Courts — pointed out to the The Quint that the court has expressed hope, but there is no mandatory direction to the government to refrain from registering a sedition-related FIR.
This point can be further established by the fact that the statement is followed by the Court's suggestion: "If any fresh case is registered under Section 124A of IPC, the affected parties are at liberty to approach the concerned Courts for appropriate relief."
As noted by Justice Nandrajog, however, the top court did request the courts "to examine the reliefs sought, taking into account the present order passed as well as the clear stand taken by the Union of India."
Explaining the order, Justice Nandrajog said:
"The court has expressed a hope that no fresh FIR under the sedition law would be instituted. The ones which are filed will not be investigated. The once where the investigation is complete, you will not go and file chargesheets. But if this hope is belied and the proceedings are initiated, then the person will be entitled to go to the court."
"And they have requested the court to take into account, while examining such cases, that the Government of India has also accepted that the law is outdated, it is not in consonance with the current thinking, it needs to be tightened," the former chief justice added.
Several legal experts have, however, expressed worry that mere expression of hope on the part of the top court may not be enough to check the filing of new cases under Section 124A. They recall that, even after Section 66A of the Information Technology Act was declared unconstitutional in 2015, cases continued to be registered under the same.
"66A IT Act was struck down in 2015 yet numerous FIRs were lodged under this section. In the case of 124A, there isn’t even an express stay of the provision," Paras Nath Singh, a lawyer, tweeted on Wednesday.
Meanwhile, lawyer Radhika Roy observed: "Those accused of the offence will still have to approach the courts for quashing/staying of investigation."
Existing Cases May Continue to...Exist
'“Why is our idea of freedom limited to not being encased in the physical wall of prison?” climate activist Disha Ravi had written in The Independent in November 2021, after she was unable to attend the COP26 climate summit in Glasgow because, as per her, the Union Government deliberately did not process her passport.
Ravi had in February that year been charged with sedition and criminal conspiracy for sharing a purported toolkit during the farmers' agitation. She was granted bail on 23 February 2021, 10 days after her arrest.
But the case against her continued to torment her, even after she could go home, as she, by her own admission, never expected that the cases filed against her would continue to pose a roadblock despite her having secured bail in the matter.
Thus, while bail is considered relief, is it relief enough? And if it isn’t, how much do those charged incorrectly with sedition have to gain from the mere right to approach courts for bail, when several other aspects of their life continue to be crippled by the FIR alone?
Because bail does not automatically translate into an acquittal or even dropping of charges against an accused.
It may be reiterated that the order explicitly states that “the prima facie opinion expressed by this Court” is that the rigours of Section 124A of IPC (sedition) are “not in tune with the current social milieu”, and that “it is clear that the Union of India agrees”.
As per Home Ministry data, between 2014 and 2019 alone, 326 cases were lodged under the sedition law in India.
Another worry is that if the Court has placed all pending trials, appeals and proceedings with respect to the charge framed under Section 124A of IPC in abeyance, it may also have a negative impact on those lower-court convictions which were on an appeal stage.
“The Court should have granted liberty to the appellate courts to grant appropriate relief in cases where the accused is incarcerated during the pendency of their appeal,” Chitranshul Sinha, Advocate-on-Record at the Supreme Court of India, wrote in an article for The Indian Express.
Other 'More Stringent' Laws Linger in the Shadows
"I am extremely happy to hear the verdict and I hail the Chief Justice Ramana for this directive. Even though Kappan has done no wrong, he is in a jail in Uttar Pradesh and he still has cases registered under the Unlawful Activities (Prevention) Act... we wish the courts should look into this also and come out with appropriate orders," Kerala Journalist Siddique Kappan’s wife Raihanath was quoted as saying by IANS.
Kappan has been languishing behind bars since his arrest by Uttar Pradesh Police in 2020. He, like the accused in the Delhi Riots ‘conspiracy’ case, the Bhima Koregaon case, and several others, has been charged with both sedition, as well as terror-related provisions of the UAPA. And for those charged under both, relief still seems unlikely.
This is because Section 43D(5) of the UAPA says that those accused of terror-related offences under the act cannot be released on bail if the court, "is of the opinion that there are reasonable grounds for believing that the accusation against such person is prima facie true."
Thus, this provision of the UAPA, makes grant of bail virtually impossible in terror-related cases as it requires a Court:
To assess the guilt by merely looking at the police's version in the case diary or chargesheet, and
To deny bail to the accused if there are reasonable grounds to believe that the case against the accused is prima facie true.
Read more about why those charged under UAPA, NSA or, in fact, any serious offence under the IPC, may not be able accrue benefits of Wednesday’s top court judgment, even if they also have a sedition charge against them here.
Another connected worry is that with the top court advising against the use of the sedition law, other stringent laws may more frequently be exploited to stifle free speech and scare critics of the ruling parties into silence.
For example, under Section 13 of the UAPA, whoever takes part in or commits, or advocates, abets, advises or incites the commission of any 'unlawful activity' – which includes in its ambit inciting "disaffection" just like sedition – shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
But, Hey, the Order Still Helps!
In addition to the above, another minor issue perhaps warrants addressing.
Point 'e' of the order says: "...the Union of India shall be at liberty to issue the Directive as proposed and placed before us, to the State Governments/Union Territories to prevent any misuse of Section 124A of IPC."
But as pointed out by Justice Nandrajog, "Somebody should have pointed out that law and order and public order is a state issue, so under a constitutional scheme, how can the central government issue any kind of directive on a matter which falls within the domain of the state govt? So they can’t issue a directive, at best it would be an advisory."
Having said that, however, the former chief justice maintained that "the order has substantially relieved the rigours of the the draconian nature of the sedition law, as understood by the courts of today. So it substantially helps out those who may be accused of sedition.”
A number of criminal law practitioners have confirmed to The Quint that they are already filing applications for bail for clients based on the interim order.
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