In May, 2022 (in S.G. Vombatkere vs. Union of India) the Supreme Court ordered that henceforth no FIR would be registered against anyone under Sec. 124A of the IPC [Sedition], and that any cases of Sedition that were pending would be “paused” (held in abeyance).
As progressive and laudable as this may sound. This is simply wrong on several counts. First, how can a law be stayed while its Constitutionality is in question? If this is permitted, it will lay down a very disturbing trend. A law that has been passed by the Legislature ought to be respected as the will of the people. How can it be stayed first, and tested later?
Keeping the application of Sedition in “abeyance”; ordering that no FIRs be registered under the Section in effect strikes down the law. This cannot be permitted until the Court decides the constitutionality on merits, after hearing the entire matter completely. Until a law is declared unconstitutional, it should not be stayed. It must be presumed to be constitutional.
I understand, the argument above may not be palatable to all. In that case, let me present another reason why it was incorrect to stay Sec. 124A before hearing it on merits.
This is not the first time the Constitutionality of Sedition is being tested. In Kedar Nath Singh vs. State of Bihar (1962), the Supreme Court looked into the Constitutionality of Sedition (Sec. 124A IPC), and found it to be constitutional.
What was the Bench strength in Kedar Nath? Five Judges.
What was the Bench strength in Vombatkere? Three Judges.
So, what has happened is, a Three Judge bench (which is mandatorily bound by the judgment of a Five Judge bench), has taken a view completely inconsistent with what a Five Judge bench said on the same point. Simply put – Vombatkere (3 judges) stayed Sedition, even while in Kedar Nath (5 judges) held that Sedition was constitutional.
This is even more egregious when you consider that in addition to a violation of Judicial Discipline (smaller bench strength not following larger bench strength), the view in Vombatkere (staying Sedition for the time being) has been taken without even hearing the matter completely. (Sec. 124A was stayed only on a prima facie view taken by a three judge bench)
TLDR – Sedition had been stayed for the time being. This is wrong. A law cannot be stayed on a mere prima facie view. This stay is incorrect because it goes right against Kedar Nath Singh, which had a larger Bench strength.
Why is this relevant Now?
Last week the Supreme Court has removed this “pause”, directing that any person accused of Sedition, prior to 2022, whose case was pending due to the 2022 Order, could apply to have their case heard.
Leave a Reply