By Asking the Supreme Court to Await the Outcome of its Review of Colonial Laws, the Union is Stalling Judicial Review of Sedition as an Offence

OVER the last year, multiple individuals and organizations moved the Supreme Court challenging the constitutional validity of Section 124A of the Indian Penal Code [IPC], that is, the offence of sedition. The Union Government earlier today informed the Supreme Court that it had decided to re-examine and reconsider section 124A as part of an ongoing process of reviewing colonial laws, and requested the court to await the outcome of the reconsideration before it proceeds to decide on the validity of section 124A.

While many would look at this and see a receptive government willing to evaluate legislation to ensure that they were within the four corners of the Constitution, that is not the case. This desire to reconsider, in reality, is an attempt to stall judicial review.

Judicial review dates back to the U.S. Supreme Court’s judgment in Marbury versus Madison (1803), and is considered the backbone of any modern democracy which adheres to the separation of powers between the coordinate branches of government. In fact, judicial review has been declared to be a part of the basic structure of the Indian Constitution by the Supreme Court of India in Indira Gandhi versus Raj Narain (1975).

Only when it seemed imminent that the matter would be heard by the three-judge bench or be referred to a larger bench for reconsideration did the Government file an affidavit stating that it wished to re-evaluate and reconsider the provision. The only motive behind this can be to ensure that a precedent striking down sedition can be avoided.

The union government’s decision to review the statute at this stage reeks of foul play. The petitions have been pending for around a year and notices had been issued a long time ago. The government had enough time to consult all relevant stakeholders and take an appropriate stand before the court. Instead, the government first chose to oppose the petitions on the ground that the Supreme Court had already upheld the validity of the provision in Kedar Nath Singh versus State of Bihar (1962). Only when it seemed imminent that the matter would be heard by the three-judge bench or be referred to a larger bench for reconsideration did the Government file an affidavit stating that it wished to re-evaluate and reconsider the provision. The only motive behind this can be to ensure that a precedent striking down sedition can be avoided.

Also read: Supreme Court must course-correct from its Kedar Nath Singh ruling

Similar stalling attempted in marital rape case at Delhi High Court

This, however, is not the first time that the union government has tried this move.

In February, the government tried a similar strategy before the Delhi High Court, which was hearing petitions challenging the constitutional validity of Exemption II of Section 375 of the IPC, which exempted rape committed by a husband on his wife from the ambit of the offence of rape. The government had informed the court that it would like to initiate a consultative process with all relevant stakeholders and then reconsider/re-examine the law in light of the outcomes of the said consultative process. It asked the court to adjourn the hearings until the consultative process is complete. The Delhi High Court refused this request, and proceeded to hear the matter and reserved judgment.

Once a petition challenging a law is filed, the judiciary is duty-bound under the Constitution of India to examine the impugned law and deliver a judgment about its validity. The only way this can be avoided is if either the petitioner withdraws the petition or the enacting authority decides to repeal the law. In the absence of either, the court must proceed and examine the law and strike it down if it is found to violate the Constitution of India. 

The Constitution of India bestows the Indian judiciary with the power of judicial review, thus allowing it to strike down legislation and other executive actions which are inconsistent with the spirit and text of the Constitution. Once a petition challenging a law is filed, the judiciary is duty-bound under the Constitution of India to examine the impugned law and deliver a judgment about its validity. The only way this can be avoided is if either the petitioner withdraws the petition or the enacting authority decides to repeal the law. In the absence of either, the court must proceed and examine the law and strike it down if it is found to violate the Constitution of India.

In the present situation, the government has not chosen to repeal section 124A. Rather, it has only sought time to reconsider and re-evaluate it. It has not indicated its intention to repeal the section in any way, nor has it stated that it would refrain from enforcing the impugned section until a decision is reached. It must thus be construed that the government at present has no intention of repealing the impugned section, nor does it wish for the court to proceed with the petitions challenging its validity. This is, to put it simply, a bald attempt at stalling judicial review.

Also read: Challenge to validity of sedition as an offence: As petitioners and AG oppose reference to a larger bench for different reasons,  Supreme Court agrees to wait till Tuesday

Article 144 of the Constitution states that all authorities, civil and judicial, in the territory of India shall act in the aid of the Supreme Court. Insofar that the union government seeks to stall judicial review, it violates the standard of conduct laid down under Article 144.

Gone are the days where a strong-willed executive tried to divest the judiciary of judicial review. The executive today is comfortable with the judiciary’s power to strike down legislation as long as it can ensure that it will not exercise it.

Hamza Lakdawala is a journalism graduate, who is pursuing his LL.B. at Mumbai University. He is currently a Research Associate at the Chambers of Senior Advocate Indira Jaising.