The SC’s restoration of Section 124A for the consent of the accused brings back a colonial law that the country did not want

Supreme Court of India in New Delhi. | Photo credit: File

The resumption of proceedings under Section 124A (sedition) on 21 May by the Supreme Court against consenting accused persons exposes them to an admittedly punitive provision which both the court and the Union government agreed was “not in keeping with the present social climate and was intended for the time when this country was under colonial rule”.

A three-judge bench of the Supreme Court on 11 May 2022 froze all proceedings under Section 124A of the now-abolished Indian Penal Code, effectively casting a shadow of doubt on every sedition case at the time.

A Bench of which Justice Surya Kant (as he then was) was a member noted the rampant misuse of a provision that dates back to 1898 and predates the Constitution.

The May 11 interim order contained excerpts from the Union government’s affidavit filed just two days earlier and cited Prime Minister Narendra Modi’s firm belief during the ‘Azadi Ka Amrit Mahotsav’ that “we as a nation must work even harder to shed the colonial baggage that has outlived its usefulness, which includes outdated colonial laws and practices”.

The court agreed with the Union government that colonial laws such as Section 124A, punishable by life imprisonment and having a “chilling effect” on freedom of expression, caused “unreasonable obstacles to the people” and “reeked of a colonial mindset that has no place in today’s India”.

The Supreme Court’s position on Section 124A in May 2022 was in line with its judgment in IR Coelho v State of Tamil Nadu that the law must be in accordance with “the march of time”.

However, a court clarification on May 21, 2026 unblocked Section 124A, ostensibly to protect the right to a speedy trial for accused persons seeking closure. The order, passed last week, noted that there would be no “barrier to courts deciding such matters (under Section 124A) on merits and in accordance with law”.

However, the challenge to the constitutionality of Section 124A itself remains alive and unresolved in the Supreme Court. The multiple writ petitions titled SG Vombatkere versus Union of India challenged Section 124A for violating the fundamental rights of freedom of speech and expression, personal liberty, life and equality before law.

The pendency of the Wombatkere petitions raises the question of whether lower courts should enter guilty verdicts when the constitutionality of the provision itself is challenged by the Supreme Court.

Furthermore, the May 21 clarification was passed in the unrelated case of Kamran v. State of Madhya Pradesh without hearing the petitioners from the Vombatkere group.

While the Supreme Court’s clarification may bring relief to some accused, it also creates practical problems in practice. For one thing, the May 21 clarification did not specifically address the situation where one accused agrees to proceed under Section 124A, while co-accused persons may refuse to do so.

Published – 24 May 2026 19:40 IST