Sedition in abeyance, but not in limbo

On 21 May, a Division Bench of Chief Justice Surya Kant, Justices Joymalya Bagchi and Vipul M. Pancholi clarified that proceedings involving sedition charges under Section 124A of the Indian Penal Code, 1860 can continue, provided the accused has no objection. 

The Order seemingly opened a narrow exit route for those accused who were awaiting trial after the Supreme Court, in S.G. Vombatkere v Union of India(2022) kept in abeyance proceedings involving sedition charges. The 2022 Order, delivered by a Bench of former Chief Justice N.V. Ramana, Justices Surya Kant and Hima Kohli had put a protective freeze on the provision stating that no new FIRs were to be registered under Section 124A and no investigations and coercive measures would be taken under it. An unintended consequence of it was persons awaiting trial continued to languish in prison until the provision was revisited. 

The 21 May clarification came in a case that sharply displays the problem. In Kamran v State of Madhya Pradesh, the petitioner has reportedly been in custody for 17 years. His criminal appeal remains pending before the Madhya Pradesh High Court. He was convicted and sentenced to life imprisonment in 2017 by a Sessions Court under Sections 122, 124A and 153A of the IPC, with provisions of the Unlawful Activities (Prevention) Act, 1967 and the Arms Act, 1959.

Sedition is one strand in a multi-charge conviction. His appeal at the High Court remained pending in light of the Supreme Court’s 2022 Order. For an accused seeking appellate relief, the protective freeze had become a procedural trap.

The clarification is therefore an accused-centred modification of the 2022 order. That order had sought to protect citizens from prosecution under a colonial provision whose constitutionality was under serious doubt. It never prevented an accused from pursuing a trial, appeal or proceeding where delay itself produced prejudice.

What the 2022 order did

In May 2022, the Bench of CJI Ramana, was informed by the Union government that it would “re-examine and re-consider” Section 124A. The Bench recorded that the law was designed for a colonial regime and was not in tune with the current social milieu.

The 2022 Order had three consequences: 

1. The Court “hoped and expected” that governments would refrain from invoking Section 124A. No fresh FIRs were to be registered, no investigations continued and no coercive measures taken under it.
2. If a fresh case was still registered, the affected person could approach the appropriate court for relief.
3. All pending trials, appeals and proceedings with respect to Section 124A were to be kept in abeyance. Proceedings under other sections could continue if no prejudice was caused to the accused.

The order was a pause button. It neither struck down Section 124A, nor clarified whether Kedar Nath Singh v State of Bihar (1962), which upheld sedition, still holds the field.

Why the clarification matters

The 21 May Order recognises that a blanket stay can sometimes harm the very class it seeks to protect. In trial courts, an accused may want proceedings to continue to secure an acquittal. In appellate courts, a person may want their conviction tested on merits. In bail or sentence-suspension proceedings, delay deepens the deprivation of liberty.

The problem is most acute where sedition is not the only charge. Many prosecutions involving Section 124A also include UAPA offences, Arms Act charges or offences relating to public order. If the entire case is frozen because one count involves sedition, the accused remains caught between two prejudices. The first is having to defend a questionable charge. The second is being denied timely adjudication of the rest.

The clarification treats the 2022 order as a shield, not a shackle. Consent becomes the key. If the accused does not consent, the protection of the 2022 order continues to operate.

The order is not a general revival of Section 124A prosecutions. It does not give the State a unilateral right to push ahead with sedition trials.

The afterlife of Section 124A

The clarification does not answer the larger question: what is the constitutional fate of sedition?

On 12 September 2023, a three-judge Bench led by former Chief Justice D.Y. Chandrachud referred the constitutional challenge to a larger Bench. It is now pending consideration before a seven-judge bench that is yet to be constituted. The challenge concerns proportionality under Article 14 and liberty under Article 21. Kedar Nath had upheld Section 124A stating that it was a reasonable restriction to the freedom of speech under Article 19(1)(a). 

The 2023 referral declined the Union’s request to defer in view of the impending Bharatiya Nyaya Sanhita, (BNS) 2023. The question of reference to a larger bench had also come up in 2022, but was then deferred after the Union’s affidavit stating that the law will be re-considered. The Court was not ready to defer it any further in 2023. It reasoned that any new penal law would operate prospectively. The validity of prosecutions launched under Section 124A would still require adjudication. While Section 124A no longer governs fresh offences, it has an afterlife.

Section 152 and the new sedition debate

The controversy has now shifted to Section 152 of the BNS, which several petitioners claim has reintroduced “sedition” in a broader form. On 27 February, the Bench of CJI Surya Kant and Justice Bagchi stated that the Court can conduct a judicial review of the new provision. The challenge is now tagged to the S.G. Vombatkere petition. The provision criminalises acts endangering the sovereignty, unity and integrity of India. It criminalises words, signs, visible representations, electronic communication, use of financial means and other acts. The targeted intent is to excite or attempt to excite secession, armed rebellion, subversive activities or separatist activities. The punishment may extend to life imprisonment, or imprisonment up to seven years, with fine.

The Court had observed that the Union’s undertaking to reconsider Section 124A does not restrict Parliament from enacting a new law as legislative power is independent of executive promise.

The issue has now become more complex. Old sedition prosecutions under Section 124A are paused but not extinguished. Accused persons may now opt to continue those proceedings. Meanwhile, Section 152 BNS has become the new site of contests over State security, dissent and free speech.

Consent must be meaningful

The next challenge will be ensuring that Courts hearing old sedition matters must record consent carefully. The need is acute where the accused is in custody, poorly represented or facing multiple charges. In connected appeals or trials involving several accused, one person’s consent cannot automatically bind another. In cases with serious liberty implications, the safer course is to record the accused’s position directly. That should be done through counsel and, where necessary, in person.

Delay and consent can interact uneasily. A person in long custody may consent to proceedings out of desperation. That does not make the clarification wrong. It means courts must ensure that consent is informed, voluntary and specific to the proceeding in question.

A narrow but necessary correction

The Court’s clarification restores agency to the accused. The 2022 order was designed to prevent the State from using sedition while its constitutional validity remained unresolved. It was not designed to keep prisoners waiting indefinitely for appeals to be heard.

At the same time, the order should not be mistaken for a soft revival of sedition. The constitutional challenge to Section 124A remains unresolved. The scrutiny of Section 152 BNS is still pending. The central question from Kedar Nath survives. When does speech against the government become an offence against the State?

Until that question is answered, sedition will remain in an unusual position. It is no longer fully alive. Yet it is not dead. It is suspended, litigated and now selectively movable at the instance of the accused. The Supreme Court has corrected the limbo for individual cases. The constitutional uncertainty remains.