Context

In a brief order delivered in S.G. Vombatkere vs Union of India, a three-judge Bench of the Supreme Court of India effectively suspended the operation of Section 124A of the Indian Penal Code.

What was the basis for the reconsideration?

• This direction was issued after the Union government filed an affidavit informing the Court that it had decided to re-examine the law.
• The Bench believed that the offer to reconsider the provision, if nothing else, showed that the Government was in broad agreement with the Court’s prima facie opinion on the matter, that the clause as it stands “is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime”.

 Section 125A and issues with it

• Section 124A defines sedition as any action — “whether by words, signs, or visible representation” — which “brings or attempts to bring into hatred or contempt or excites or attempts to excite disaffection towards the Government established by law in India”.
• The word “disaffection”, the provision explains, “includes disloyalty and all feelings of enmity”.
• The adopted Constitution did not permit a restriction on free speech on the grounds of sedition. 
• In the 1950s, two different High Courts struck down Section 124A as offensive to freedom.
• But, in 1962, in Kedar Nath Singh vs State of Bihar, a five-judge Bench of the Supreme Court reversed these verdicts.
• The Court paid no heed to the debates that informed the Constituent Assembly.
• Instead, it found that Section 124A was defensible as a valid restriction on free speech on grounds of public order.
• However, while upholding the clause, the Court limited its application to “acts involving intention or tendency to create disorder, or disturbance of law and order, or incitement to violence”.
• Vague terms: The decision failed to recognise that terms such as “disaffection towards the government”, which are fundamentally vague.
• Marginalised sections affected: Since then, in its application by law enforcement, the limitations imposed in Kedar Nath Singh have rarely been observed.
•  As is often the case with abuses of this kind, it is the most marginalised sections of society that have faced the brunt of the harm.
• Reading of fundamental rights changed: Since 1962, when the judgment was handed out, the Supreme Court’s reading of fundamental rights has undergone a transformative change.
• Time to reconsider Kedar Nath: This altered landscape meant that when fresh challenges were mounted against Section 124A, the time to reconsider Kedar Nath Singh had clearly arrived. 
• In the long run, the decision in Kedar Nath Singh will require a clear disavowal.
• But in nullifying Section 124A, albeit for the present, the Court has provided provisional relief — allowing those accused of the offence to both seek bail in terms of the order, and to have their trials frozen.

Conclusion

To protect our democracy, we must ensure that the constitutional guarantees to personal liberty and freedom do not go in vain. For that, each of our penal laws must be animated by a concern for equality, justice, and fairness.

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