A revival of consent-bound sedition

AND A three-judge Bench headed by Chief Justice of India Surya Kant clarified on May 21 that courts can proceed with trials, appeals and proceedings under Section 124A of the now repealed Indian Penal Code if no objection is raised by the accused. In effect, the direction partially revived a suspended colonial-era sedition provision for those willing to face trial.

The direction came in a special leave application filed by a person concerned about his nearly decade-old appeal against conviction under the Unlawful Activities (Prevention) Act, the Arms Act and several provisions of the IPC, including Section 124A.

He and his co-accused were sentenced to life imprisonment by a Madhya Pradesh sessions court in February 2017. Their appeal to the state high court remained in limbo after the Supreme Court ordered that all ongoing and future proceedings under Section 124A be stayed on 11 May 2022.

The Supreme Court found that the High Court was “reluctant” to hear the appeal while the May 2022 order remained in place. The appellant in this case, Kamran, said he was willing to let the High Court hear the appeal in its entirety, including the sedition issue.

The Bench relented by issuing a blanket direction that sedition proceedings under Section 124A should continue against consenting accused persons like Kamran. The court’s decision was apparently driven by speedy trial and closure for the accused and a reduction in the burden on a justice system already groaning under a backlog.

Constitutional issues

On the other hand, however, the Supreme Court’s clarification revealed that consenting accused persons will be subject to provisions that both the court and the government considered suspect in 2022. The Supreme Court is considering an objection to the constitutionality of Section 124A. Multiple Writ Petitions in SG Vombatkere versus Union of India challenged Section 124A as violative of fundamental rights.

The pendency of Wombatkere’s petitions raises the question of whether lower courts would enter a guilty verdict if the constitutionality of the provision were suspect. In addition, the May 21 clarification was passed in the unrelated case of Kamran versus State of Madhya Pradesh without giving notice or hearing the petitioners in the Vombatkere group matters.

Practical problems can also arise for lower courts if one accused is willing to be tried under Section 124A while his co-accused is not. The answer lies in deciding petitions that challenge colonial provisions and not in providing additional explanations.

The May 21 clarification further revolts against the fundamental right to “equality before the law”. The May 2022 interim order expressed the Supreme Court’s “hope and expectation” that the government would not register any fresh FIRs, continue investigations or take coercive action against people under Section 124A while the challenge to the provision was alive in the high court. The order gave liberty to the affected parties against whom Section 124A was invoked to approach the court for relief. It went to the extent of ordering that the decision on the relevant sections in such cases would be taken only if the courts were of the opinion that no prejudice would be caused to the accused. None of these directions were modified on May 21.

Unequal consequences

The clarification may make a visible difference in the operation of section 124A. Trials and trials would resume against accused who may have consented out of fear or were certain of their innocence, while others who were not so frantically closed would choose to wait quietly until the Supreme Court finally decided on the legality of Section 124A. The Supreme Court’s long delay in the Wombatkere petitions leaves vulnerable citizens stuck between a rock and a hard place: either agree to a trial under an unsettled law, which means life in prison, or endure indefinite limbo.

Again, the May 21 direction would mean a trial and resumption of appeals for the consent of the accused under a provision that the Supreme Court and the Center agreed in 2022 was not in tune with the current social environment and was meant for when the country was under colonial rule. The Attorney General at the time shared instances of blatant misuse of Section 124A, such as when an independent MP and her husband were booked under Section 124A after they threatened to recite the Hanuman Chalisa outside the private residence of the former Chief Minister of Maharashtra.

The offense of sedition was traced back to the Statute of Westminster in 1275, when the king was considered to hold divine right. Before the adoption of the Constitution, this provision was viewed with suspicion in independent India. The country’s first prime minister, Jawaharlal Nehru, described the section on the floor of the Provisional Parliament in 1951 as “highly undesirable and repugnant”. In 1962, the Supreme Court in Kedar Nath Singh v. State of Bihar read it and said that “a citizen has the right to say or write what he likes about the Government or its measures by way of criticism or comment, so long as it does not incite the people to violence or with intent to create public disturbance”.

State burden

Even Section 152 of the Bharatiya Nyaya Sanhita, considered to be the successor to Section 124A, is being challenged in the Supreme Court for its ambiguity, which conceals an immense capacity to have a chilling effect on freedom of speech and expression.

Current challenges to the sedition provisions urge the Supreme Court to abide by post-Kedar Nath precedents such as RC Cooper, Indira Gandhi v Raj Narain and IR Coelho, which held that fundamental rights did not reside in isolated silos or watertight compartments – restrictions on free speech caused by a charge under Section 124A or Section 152 would also affect the right to privacy. The content of each fundamental right animates the others.

The burden is on the state to show that the sedition provision “restricting the right” is necessary in a democratic society. It should not be left to the parties concerned to agree to sedition proceedings out of sheer desperation caused by the delay in deciding the constitutionality of Section 124A by none other than the highest court of the land.

Published – 29 May 2026 08:30 IST