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The Supreme Court clarified its May 2022 interim order, holding that wherever the accused has no objection against proceeding with the trial, appeal, or any other proceeding where he has been chargesheeted under Section 124A IPC, there shall be no impediment for courts to decide such matters on merits and in accordance with law.

The clarification came while hearing a petition filed by Kamran, who has reportedly been in custody for 17 years. His criminal appeal — arising from a 2017 Sessions Court conviction under Sections 122, 124A, 153A IPC, read with provisions of the UAPA — remained pending before the Madhya Pradesh High Court due to the 2022 Supreme Court freeze on all sedition proceedings.

The order is not a general revival of Section 124A prosecutions. It does not give the State a unilateral right to push ahead with sedition trials. Crucially, the clarification does not answer the larger question — what is the constitutional fate of sedition?

Background — A Colonial Relic

Section 124A was drafted by Thomas Babington Macaulay in 1837 but was omitted when the IPC was first enacted in 1860. It was reintroduced in 1890 through Special Act XVII specifically to suppress rising nationalist dissent, carrying harsh penalties including life imprisonment.

The law was used extensively against Indian freedom fighters — most notably Bal Gangadhar Tilak (tried three times for his writings in Kesari) and Mahatma Gandhi (for his articles in Young India in 1922). Gandhi famously described Section 124A as "the prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen."

Key Judicial Pronouncements

• Romesh Thapar v. State of Madras (1950) — The Supreme Court held that mere criticism of the government or creation of disaffection against it cannot justify restrictions on free speech unless it threatens the security of the State or seeks to overthrow it.
• Kedar Nath Singh v. State of Bihar (1962) — The Supreme Court upheld the constitutional validity of Section 124A but severely restricted its application, ruling that mere strong criticism of the government is not sedition unless accompanied by incitement to violence or an intention to create public disorder.
• Balwant Singh v. State of Punjab (1995) — The Supreme Court held that casual raising of anti-national slogans by a few individuals, which did not lead to any public response or violence, does not amount to sedition.
• S.G. Vombatkere v. Union of India (2022) — The Supreme Court placed Section 124A in complete abeyance, observing that the law was engineered for a colonial regime and entirely out of sync with the modern democratic social milieu. It directed that no fresh FIRs be registered, no investigations continued, and all pending trials and appeals kept strictly in abeyance.

Transition to the Bharatiya Nyaya Sanhita (BNS), 2023

With the repeal of the IPC, the sedition framework has transitioned into the BNS. The word "sedition" (Rajdroh) has been consciously dropped from the new legal lexicon. Section 152 of the BNS now penalises acts that endanger the "sovereignty, unity, and integrity of India." Crucially, while Section 124A penalised disaffection towards the Government, Section 152 shifts focus to penalising acts that threaten the State itself — specifically criminalising secessionist activities, armed rebellion, or subversive activities, with punishment up to life imprisonment or seven years with fine.

22nd Law Commission's Position

The 22nd Law Commission (2020) strongly recommended retaining the sedition law to safeguard India's internal security, arguing that the "colonial legacy" tag is an insufficient reason for its repeal. It proposed critical amendments: formally incorporating the Kedar Nath judicial safeguard by explicitly requiring a "tendency to incite violence or cause public disorder," and mandating that no FIR can be registered without a preliminary inquiry by an Inspector-level officer and prior government permission. It also warned that scrapping sedition entirely could force the State to prosecute speech-related offences under far more draconian laws like the UAPA.

Concerns Raised by the Revival

• Questionable Nature of Consent — Critics argue that accused persons facing prolonged imprisonment may "consent" to sedition trials out of desperation for bail or closure, raising serious doubts about whether such consent is truly voluntary.
• Problem of Co-Accused Persons — The order does not clarify situations where one accused agrees to proceed while a co-accused refuses, potentially leading to fragmented trials and contradictory judgments.
• Chilling Effect on Free Speech — The law is frequently alleged to be misused to intimidate journalists, human rights activists, political dissidents, and students — creating a chilling effect on legitimate democratic dissent.
• Democratic Inconsistency — The United Kingdom, which introduced the sedition law in India, abolished its own sedition laws in 2009, arguing it had no place in a modern democracy.

Way Forward

• Expediting the Seven-Judge Bench — The Supreme Court must convene the referred seven-judge Constitution Bench to definitively rule on the constitutional validity of Section 124A — evaluating whether a law criminalising mere "disaffection" against a transient political executive can survive the modern proportionality test under Articles 14 and 21.
• Unified Constitutional Standard — The judiciary must establish a clear standard separating legitimate political speech from actual security threats, preventing lower courts from resorting to the "consent" mechanism to clear backlogs.
• Accountability for Misuse — Where security-related charges are weaponised to suppress peaceful journalism or civil activism, the law must provide for mandatory disciplinary and penal consequences against the responsible officers.
• Police Training — Local police forces must be sensitised to distinguish between legally protected political dissent and actual offences against the State.
• Defining Ambiguous Terms — Section 152 of the BNS uses broad terms such as "subversive activities" and "feelings of separatist activities" that must be narrowly and exhaustively defined to prevent arbitrary application.

Conclusion

India's transition from Section 124A of the IPC to Section 152 of the BNS reflects a shift from protecting the government from criticism to safeguarding national sovereignty from genuine threats. However, true democratic security lies not in suppressing dissent but in protecting free speech through narrowly defined laws, robust judicial safeguards, and accountability. The Kamran clarification, while providing relief to long-suffering undertrials, leaves the fundamental constitutional question of sedition's validity unresolved — a question that only a full Constitution Bench can answer.