The Supreme Court on Friday verbally observed that an undertaking given by the Union government that it would reconsider the offence of sedition under the erstwhile Indian Penal Code cannot stop Parliament from introducing it in the Bharatiya Nyaya Sanhita, the Hindustan Times reported.
A bench of Chief Justice Surya Kant and Justice Joymalya Bagchi noted that the legislature functions independent of the executive. It was hearing a batch of public interest litigation petitions challenging several provisions of the Bharatiya Nyaya Sanhita, including Section 152.
The section of the criminal law pertains to acts that endanger India’s sovereignty, unity and integrity. It criminalises a wide spectrum of expressive conduct, including those who “purposely or knowingly” use words to “excite or attempt to excite” secession, rebellion or subversive activities.
Critics have contended that the provision effectively reintroduces the colonial-era offence of sedition under Section 124A of the Indian Penal Code. They argue that sedition was slipped into the law again in the guise of Section 152 when the Bharatiya Nyaya Sanhita replaced the Indian Penal Code in July 2024.
In their pleas against provisions of the Bharatiya Nyaya Sanhita, the petitioners referred to an undertaking given by the Union government in May 2022 to the Supreme Court that Section 124A of the Indian Penal Code would be reviewed.
The court had at the time also ordered proceedings and criminal prosecutions for sedition under the section to be kept in abeyance based on the undertaking.
During the proceedings on Friday, advocate Menaka Guruswamy, representing one of the petitioners, noted that the Union government had earlier said that it would withdraw the offence of sedition, the Hindustan Times reported.
“And yet it is present in the form of Section 152 BNS,” the newspaper quoted the advocate as saying.
Guruswamy said that the Union government “cannot give an undertaking to this court and then reintroduce”, Live Law reported.
However, the bench did not accept the submission, saying that an undertaking given by the Union government does not bind the legislature.
“Parliament is not bound by the government’s undertaking,” the Hindustan Times quoted the bench as saying. “These are executive decisions. The legislature may still want to enact a law. Parliament is absolutely entitled to pass any law.”
While the Parliament’s power to enact a law is independent of the executive, it is left to the judiciary to review whether the legislation fell foul of constitutional principles, it added.
“It is only when courts subject a law to judicial review, we examine whether a provision satisfies the constitutional requirements,” the newspaper quoted the court as saying.
The bench also said that provisions under the Bharatiya Nyaya Sanhita were currently working well.
“It is only with passage of time, we come to know which are the provisions that are causing impediments and if so, whether they can be resolved by courts or need legislative intervention,” it added.
The matter was listed for further hearing in March.
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