In an interim order, the bench said no new FIRs should be lodged under the sedition provision and those already in jail can approach courts for relief.
The Centre proposed issuing an advisory to the state governments that only a police officer of the rank of Superintendent of Police (SP) — who may record in writing the reasons for a case involving sedition provision (Section 124A of the Indian Penal Code) — as it cannot prevent police from registering a cognizable offence under sedition provision.
Solicitor General Tushar Mehta, representing the Centre, submitted that the government proposes that a police officer of the level of SP or above should decide, for now, on whether a sedition charge should be filed in future FIRs. He added that as the government reviews the sedition law, pending sedition cases can be reviewed, and the courts can decide on the bail application of those under Section 124A IPC, expeditiously.
Senior advocate Kapil Sibal, representing one of the petitioners, contended that Section 124A has become prima facie unconstitutional and the apex court must stay application of the sedition provision, till the Centre reviews the provision.
Mehta submitted that as far as pending cases are concerned, gravity of each case is not known, maybe there is a terror angle, and also the pending cases are before judicial forum. “We need to trust the courts,” he added.
Justice Kant told Sibal, “What is this argument…Can it be struck down today?” The bench added that it is looking for an answer who can be an impartial authority, in the view of Centre’s proposal, and asked Sibal what an arrangement in the interregnum can be done.
On Tuesday, the top court had sought the Centre’s response on pending and future cases registered under the sedition law.
The Ministry of Home Affairs in its affidavit said the Prime Minister of India has been cognizant of various views expressed on the subject and has also periodically, in various forums, expressed his clear and unequivocal views in favour of protection of civil liberties, respect for human rights and giving to the constitutionally cherished freedoms to the people of the country.
The home ministry added that the Prime Minister has repeatedly said that one of India’s strengths is the diverse thought streams that beautifully flourish in the country. The ministry said the Prime Minister believes that at a time when the nation is marking Azadi Ka Amrit Mahotsav (75 years of Independence), as a nation it is essential to work harder to shed colonial baggage that passed its utility, which includes outdated colonial laws and practices.
“The Government of India, being fully cognizant of various views being expressed on the subject of sedition and also having considered the concerns of civil liberties and human rights, while committed to maintain and protect the sovereignty and integrity of this nation, has decided to re-examine and re-consider the provisions of Section 124A of the Indian Penal Code, which can only be done before the competent forum,” said the affidavit.