The Supreme Court on Friday orally observed that an undertaking given by the Union Government to reconsider the offence of sedition does not bind Parliament from enacting a similar provision.
A Bench comprising the Chief Justice of India and Justice Joymalya Bagchi heard petitions challenging provisions of the Bharatiya Nyaya Sanhita (BNS), 2023. The primary challenge concerns Section 152 of the BNS, which criminalises acts that endanger the sovereignty, unity and integrity of India. Petitioners argue that this provision effectively re-enacts Section 124A (sedition) of the Indian Penal Code.
Petitioners Argue Reintroduction of Sedition Through BNS
Senior Advocate Menaka Guruswamy, appearing for the petitioners, argued that the Union Government had undertaken before the Supreme Court in 2022 to review the sedition provision. Following that undertaking, the Court kept Section 124A IPC in abeyance and barred the registration of fresh FIRs under it.
She contended that despite the assurance, Parliament reintroduced the substance of sedition through Section 152 of the BNS.
“The Union gave an undertaking that we will be withdrawing the provision (Section 124A), but it has been reintroduced. It cannot give an undertaking to this Court and then reintroduce,” she submitted.
CJI: Parliament Not Bound by Executive Undertaking
The Chief Justice rejected the argument that the earlier assurance restricted Parliament’s legislative powers.
He clarified that while the executive may have given an undertaking, Parliament retains plenary authority to legislate.
“Union of India may have given an undertaking. But Parliament is not bound by it. This argument does not impress us at all that since the executive authority has given an undertaking, and so the Parliament is barred. The Parliament can ask — who are you to give an undertaking on our behalf. We want to enact the law, let the Court examine,” the CJI observed.
He further stated that if a newly enacted law violates the Constitution, the Court retains the power to strike it down. However, an executive assurance cannot curtail Parliament’s legislative competence.
Guruswamy responded that the constitutional concerns expressed earlier in relation to Section 124A continue to apply to Section 152 of the BNS.
Challenge to BNSS Provision on Preliminary Inquiry
The hearing also addressed a challenge to Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).
Guruswamy argued that the provision violates the principles laid down in Lalita Kumari v. Government of Uttar Pradesh, which mandates the registration of an FIR upon disclosure of a cognizable offence. She submitted that Section 173 allows police officers to conduct a preliminary inquiry before registering an FIR in certain cases. According to her, this discretion could lead to misuse.
CJI Questions Practical Impact of Lalita Kumari Judgment
The Chief Justice observed that the Lalita Kumari ruling had led to the filing of numerous frivolous FIRs. He remarked that courts must remain mindful of ground realities while delivering judgments.
“Sometimes judgments are given sitting on ivory towers. That judgment — have you seen what kind of litigation it has generated? Once cognizable offence is disclosed, FIR has to be registered. How much that judgment has been abused in this country?” he said.
He added that courts must consider societal conditions and rural realities before expanding perceived rights in a manner that disrupts social balance.
When Guruswamy argued that police authorities cannot verify allegations before registering an FIR, the CJI responded, “Who else will verify?”
Justice Bagchi: Law Cannot Remain Frozen
Justice Bagchi emphasised that the law cannot remain static in the form articulated in Lalita Kumari. He noted that the judgment itself permitted preliminary inquiries in certain categories of cases.
According to him, the BNSS provision expands those categories. The Court can examine whether the classification remains reasonable. However, one cannot argue that the concept of a preliminary inquiry inherently contradicts Lalita Kumari.
Court May Allow New Law to Operate Before Intervention
The Chief Justice also indicated that the Court may allow newly enacted legislation to operate for some time. Doing so would help assess its practical impact before judicial intervention on abstract grounds.
The Bench adjourned the matter for further hearing after the Holi vacations.
Case Title: Azad Singh Kataria v. Union of India
Senior Advocate Menaka Guruswamy appeared for the petitioner Azad Singh Kataria. Senior Advocate S. Nagamuthu represented the Mannargudi Bar Association in a connected petition challenging certain provisions of the BNSS.
