'Parliament not bound by Centre's undertaking before court': Supreme Court on reintroduction of sedition law

The SC bench said that the court should allow a new law to operate for a few years and examine its operation before interfering.

New Delhi: The Supreme Court on Friday said Parliament has the absolute prerogative to make a law and during the judicial review, if it is found that the law is against the Constitution, it can be struck down.

The court also clarified the Union government is not bound by its undertaking given to the this court as it was hearing a plea related to validity of sedition law provision reintroduced in Bhartiya Nyaya Sanhita.

A bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi said, an undertaking given by the Centre to reconsider the sedition law will not prevent Parliament from enacting a similar provision.

"The Legislature cannot give an undertaking. The Union of India may have given one. Parliament is not bound by their undertaking," the bench said.

The plea challenged the provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, particularly Section 152 (acts endangering sovereignty, unity and integrity of India), calling it as a restoration of Section 124A (sedition) of the IPC.

The bench said that the court should allow a new law to operate for a few years and examine its operation before interfering.

Senior advocate Menaka Guruswamy, appearing for petitioner Azad Singh Kataria, submitted, “This court has passed a judgment on sedition, and the Union government gave an undertaking, saying that we will withdraw this provision. But it (sedition) has been reintroduced. So, it cannot give the apex court an undertaking and reintroduce it”.

“The Legislature cannot give an undertaking. Parliament may still think that we may require a law on it. This argument does not impress at all,” the bench said.

The court pointed out that some executive authority made a statement before the court that they would not, and Parliament can say, "Who are you to make a statement on our behalf? We want to enact this law. We will enact a law. Let the court examine whether it satisfies the constitutional principles or not."

The bench further said, “Our area of operation is very clear. They have the prerogative to enact a law with their thinking process….but during the judicial review process, if we find that such provision is nothing, it cannot be reconciled, it cannot be interpreted in conformity with constitutional philosophy…that part we can always cure.”

The counsel insisted that the concerns expressed by the court regarding Section 124A IPC remain valid for Section 152 BNS.

She also flagged Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) as violating the Lalita Kumari judgment because it allows the police the option of conducting a preliminary inquiry before registering an FIR in some cases. Lalita Kumari mandated that FIRs must be mandatorily registered if a cognizable offence is made out. It was argued before the bench that giving the police discretion to register an FIR is dangerous.

The bench, however, said that the Lalita Kumari judgment has also been abused a lot, leading to frivolous FIRs.

"Sometimes judgments are given while sitting in ivory towers," the bench said and asked the counsel, “Have you seen what kind of litigation that judgment has generated? How much that judgment has been abused in this country?"

“All cantankerous people misuse. Without knowing our societal situations, ground realities and rural communities, without understanding how people are living, we keep on passing judgments in the name of perceived rights, and lead to completely disturbing the fabric of the country,” the bench said.

The counsel contended that the police cannot verify the veracity of the allegations.

"Who else will verify," the bench asked and posted the matter for further hearing after the Holi vacation.