By Dr Swati Jindal Garg
Few provisions in Indian criminal law carry the historical and political burden of Section 124A of the Indian Penal Code— the sedition law. Drafted by the British colonial administration in 1890, the provision was never intended to protect democratic freedoms. Its purpose was to protect imperial authority by criminalising speech that brought the government into “hatred or contempt”.
More than seven decades after Independence, sedition remains one of the most contested provisions in Indian law. Critics view it as a weapon against dissent; supporters argue it remains necessary to safeguard sovereignty and public order. Yet, the Supreme Court’s recent intervention has once again placed the constitutional future of sedition under sharp scrutiny.
Recently, the Supreme Court revisited the issue in a case involving a man who had spent 17 years in prison while his appeal remained pending before the Madhya Pradesh High Court. A bench led by Chief Justice of India Surya Kant, along with Justices Joymalya Bagchi and Vipul M Pancholi, clarified that although proceedings under Section 124A remain suspended under the apex court’s 2022 order, appellate courts may continue hearing cases if the accused voluntarily consents.
The clarification may appear procedural, but its constitutional significance is profound. It prevents the 2022 suspension from turning into indefinite judicial paralysis. More importantly, it restores agency to the accused, allowing individuals trapped in prolonged litigation to decide whether they wish to pursue resolution or await possible legislative reform.
The ruling effectively carves out what may be called a constitutional middle path—preserving protection against fresh sedition prosecutions while ensuring that justice is not endlessly deferred.
The Supreme Court’s intervention builds upon its landmark 2022 order in SG Vombatkere vs Union of India, when the Court acknowledged growing concerns over the misuse of sedition law against journalists, activists, students and political dissenters. In an unprecedented move, the Court directed that no new FIRs under Section 124A be registered, and that all pending trials, appeals and investigations remain in abeyance. Those already incarcerated were permitted to seek bail.
Although the law itself was not struck down, the order was widely interpreted as a constitutional freeze on the operation of sedition pending reconsideration by the Union government.
The roots of this debate, however, run deep into India’s colonial past.
Section 124A became one of the British Empire’s most potent legal weapons against the freedom movement. Bal Gangadhar Tilak was prosecuted under the provision in 1897 for writings deemed inflammatory by colonial authorities. The court interpreted “disaffection” so broadly that it encompassed “hatred, enmity, dislike, hostility, contempt and every form of ill-will” against the government.
Tilak argued that criticism of government policy was not disloyalty, but a legitimate democratic right. His conviction transformed the sedition law into a symbol of colonial repression.
Mahatma Gandhi’s 1922 sedition trial remains perhaps the most enduring moral indictment of Section 124A. Charged for articles published in Young India, Gandhi described sedition as “the prince among the political sections of the IPC designed to suppress liberty of the citizen”. He argued that affection for the government could never be manufactured by law and that dissent, absent incitement to violence, was a legitimate democratic expression.
His words continue to resonate because they identified the central constitutional dilemma of sedition: whether the State can criminalise disaffection without undermining the very idea of free speech.
Independent India retained Section 124A despite its colonial origins. The trauma of Partition, communal violence and fears of separatism shaped the thinking of the early republic. While Article 19(1)(a) guaranteed freedom of speech, the First Amendment in 1951 introduced “reasonable restrictions” in the interests of public order and State security.
The judiciary later attempted to narrow the law’s scope. In Kedar Nath Singh vs State of Bihar (1962), the Supreme Court upheld the constitutional validity of sedition, but restricted its application to acts involving incitement to violence or public disorder. Mere criticism of the government, the Court held, could not amount to sedition.
Subsequent rulings continued this cautious balancing exercise. In Balwant Singh vs State of Punjab (1995), the Court acquitted individuals accused of sedition for raising pro-Khalistan slogans, holding that casual sloganeering without incitement to violence did not threaten public order.
Yet, despite these judicial safeguards, sedition continued to be invoked repeatedly against activists, journalists, students and political critics, often regardless of whether any actual violence was involved. This pattern of misuse eventually compelled the Supreme Court to intervene in 2022.
The latest clarification acknowledges another constitutional reality: delay itself can become a form of injustice. For prisoners and accused persons whose appeals have remained frozen for years, an indefinite suspension offers little relief. By permitting proceedings to continue with consent, the Court has recognised that liberty includes not merely freedom from prosecution, but also the right to timely adjudication.
The debate over sedition now increasingly extends beyond India. Democracies across the world have steadily abandoned such laws. The United Kingdom repealed sedition in 2009, describing it as archaic and unnecessary in a modern democracy. New Zealand abolished sedition in 2007, while Australia substantially narrowed its scope to direct incitement of violence.
India’s continued retention of Section 124A, therefore, appears increasingly out of step with global democratic norms.
Civil liberties organisations, including the Editors Guild of India and the People’s Union for Civil Liberties, have consistently argued that sedition produces a chilling effect on democratic speech. The concern is not merely conviction, but prosecution itself—the process becoming punishment.
For legal practitioners, the Supreme Court’s recent clarification carries immediate implications. Defence lawyers must now advise clients whether to proceed with pending appeals or await possible legislative repeal. Courts, meanwhile, must ensure that consent to resume proceedings is informed, voluntary and properly recorded.
At its core, the sedition debate remains a constitutional contest between liberty and security. The State invokes national stability; citizens invoke democratic freedom. The Supreme Court’s latest order does not resolve that conflict permanently, but it attempts to manage it pragmatically.
The larger question, however, remains unresolved: can a democracy continue to retain a colonial law designed to silence political dissent?
Until Parliament answers that question, the judiciary will likely continue to serve as the uneasy constitutional custodian of free speech—navigating the fragile line between State authority and individual liberty.
—The author is an Advocate-on-Record practising in the Supreme Court,
Delhi High Court and all district courts and tribunals in Delhi
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