Attempting to balance the security interests and integrity of the states with the civil liberties of citizens, it said, “There is a requirement to balance both sets of considerations, a difficult exercise. The case of the petitioners is that this provision of law dates back to 1898, pre-dating the Constitution itself, and is being misused. The attorney general had also, on an earlier date of hearing, given some instances of glaring misuse of this provision, like in the case of recital of the ‘Hanuman Chalisa’.”
The CJI-led bench, which drafted the order within 30 minutes of it being reserved, said, “We hope and expect that the state and central governments will restrain from registering any FIR, continuing any investigation or taking any coercive measures by invoking Section 124A of the IPC while the aforesaid provision of law is under consideration.”
After passing these directives, the SC said that the Centre would be free to issue the directive as proposed and placed before the court to the state governments/Union territories to prevent any misuse of Section 124A of the IPC.
Solicitor general Tushar Mehta had placed a draft guideline, signed by Union home secretary Ajay Bhalla, which said that “an FIR involving Section 124A will be registered only if an officer not below the rank of superintendent of police is satisfied and records his satisfaction in writing that the offence alleged involves Section 124A as analysed by the SC in its 2021 judgment in Vinod Dua case”.
In the Vinod Dua case, the SC had said, “A citizen has a right to say or write whatever he likes about the government, or its measures, by way of criticism or comment, so long as he does not incite people to violence against the government established by law or with the intention of creating public disorder.”
It had said Section 124A aims to penalise only activities having a tendency to create disorder or disturbance of public peace by resort to violence. “We propose to limit its operation only to such activities… involving incitement to violence or intention or tendency to create public disorder or cause disturbance of public peace.”
On Wednesday, the bench of CJI Ramana and Justices Kant and Kohli said the Union government in its affidavit has clarified that it was prima facie in agreement with the SC’s past judgments outlining that “the rigours of Section 124A of IPC is not in tune with the current social milieu, and was intended for a time when this country was under the colonial regime. In light of the same, the Union of India may reconsider the aforesaid provision of law.”