Supreme Court Signals Deference to Legislature in BNS Sedition Challenge

In a significant oral observation during a hearing on constitutional challenges to India's new criminal codes, the Supreme Court of India emphasized that the Union Government's 2022 undertaking to reconsider the colonial-era sedition law does not fetter Parliament's legislative authority. A bench led by Justice Surya Kant, alongside Justice Joymalya Bagchi, rejected arguments that the executive's promise bars reenactment of similar provisions under Section 152 of the Bharatiya Nyaya Sanhita (BNS), 2023. The Court also addressed concerns over Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2024, which permits preliminary inquiries before FIR registration in expanded categories, cautioning that the landmark Lalita Kumari judgment has been "abused" to spawn frivolous cases. The matter, arising from petitions including Azad Singh Kataria v. Union of India (W.P.(Crl.) No. 461/2024), stands adjourned for hearing after the Holi vacations, underscoring a judicial inclination to allow new laws operational breathing space before scrutiny.

This development comes amid broader litigation testing the constitutional validity of the BNS and BNSS, which replaced the Indian Penal Code (IPC), 1860, and Code of Criminal Procedure (CrPC), 1973, effective July 1, 2024. For legal professionals navigating these reforms, the Court's remarks offer critical insights into evolving standards of judicial review, separation of powers, and the balance between individual rights and practical law enforcement realities.

Historical Context: From Sedition Stay to New Criminal Codes

The saga of sedition in India traces back to Section 124A of the IPC, a provision weaponized during British rule and frequently criticized for chilling free speech under Article 19(1)(a). In May 2022, in S.G. Vombatkere v. Union of India , a Constitution Bench stayed proceedings under Section 124A, directing no new FIRs and requiring review of pending cases. The Centre responded with an undertaking to reconsider the law, appointing a committee that ultimately recommended retention with safeguards—advice seemingly incorporated into BNS Section 152, which penalizes acts endangering "sovereignty, unity and integrity of India."

Petitioners, represented by Senior Advocate Menaka Guruswamy in the lead case filed by Azad Singh Kataria, and Senior Advocate S. Nagamuthu for the Mannargudi Bar Association's connected petition, argue this amounts to a surreptitious revival. Guruswamy highlighted the 2022 undertaking: "The Union gave an undertaking that we will be withdrawing the provision (S.124A), but it has been reintroduced. It cannot give an undertaking to this Court and then reintroduce." She contended that concerns over vagueness and overbreadth voiced in 2022 persist for Section 152.

Similarly, BNSS Section 173 is assailed for diluting Lalita Kumari v. Govt of UP (2014), which mandated immediate FIR registration for cognizable offences, allowing preliminary inquiries only in three limited scenarios: (i) information silent on intent; (ii) need to verify informant credibility; (iii) ascertain cognizable offence nature. Petitioners claim the new provision's discretion empowers police to "verify the veracity of allegations," risking delays and abuses.

Court's Firm Rebuttal: No Binding on Parliament

The bench decisively dismissed the undertaking's binding effect, reinforcing the constitutional demarcation between executive (Article 73) and legislative (Article 245) domains. Justice Surya Kant, referred to as CJI in proceedings, stated verbatim:

"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."

This stance echoes precedents like Keshav Mills Co. Ltd. v. CIT (1965), where executive concessions do not estop legislation. The CJI further noted Parliament's "absolute prerogative" to legislate, subject only to post-enactment judicial review if unconstitutional. He urged restraint: "The Court should allow a new law to operate for a few years to examine how it is operating, before interfering on the basis of abstract principles."

For constitutional litigators, this signals a pivot from preemptive invalidation toward empirical assessment, potentially prolonging challenges to BNS provisions amid free speech litigations.

BNSS Preliminary Inquiry: Evolution, Not Violation

Turning to BNSS Section 173, Guruswamy warned of "dangerous" police discretion, arguing officers lack competence to assess allegation veracity. The Court pushed back robustly. Justice Surya Kant critiqued Lalita Kumari 's real-world fallout:

"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? Many times judicial courts are abused. 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."

Justice Bagchi complemented: "the law cannot remain crystallised in the Lalita Kumari judgment." He clarified that Lalita Kumari already permitted preliminary inquiries in select cases, and BNSS merely "expanded those categories." Rationality of classification remains open to scrutiny, but expansion per se aligns with the precedent. Responding to "Who else will verify?" from the CJI, the bench underscored police's frontline role.

Legal Analysis: Balancing Doctrine and Pragmatism

These observations illuminate a maturing judicial philosophy. On sedition, the Court upholds legislative autonomy, aligning with Maneka Gandhi (1978) proportionality tests applied post-enactment. BNS Section 152's safeguards—e.g., excluding peaceful protests—may pass muster if not vague under Article 19.

For BNSS Section 173, the remarks endorse procedural dynamism, invoking Article 21's "procedure established by law" via Article 300A property analogies, but grounded in Article 14 equality. Rational classification under State of West Bengal v. Anwar Ali Sarkar (1952) will be key: Does expanding inquiry categories (e.g., to economic offences) bear intelligible differentia?

Critically, the "ivory tower" critique reflects post- Lalita Kumari data: NCRB reports show FIR surges, with 20-30% quashed as frivolous in higher courts, burdening magistracy and fueling political vendettas.

Implications for Legal Practice and Justice System

Criminal practitioners face recalibrated strategies. Defense counsel in sedition-like cases must pivot from "undertaking breach" to substantive vagueness/overreach arguments, bolstered by Shreya Singhal (2015) precedents. Prosecutors gain ammunition against automatic FIRs, potentially curbing misuse in dowry, SC/ST Act, or POCSO cases.

Police reforms benefit: Preliminary inquiries, capped at 14 days under BNSS, could filter noise, easing investigation backlogs (over 4 crore pending FIRs per NCRB 2022). However, safeguards like magistrate oversight are vital to prevent delays violating Arnesh Kumar v. State of Bihar (2014) guidelines.

Broader justice delivery: This "operational testing" approach may stabilize new codes amid 150+ pending challenges, fostering evidence-based reforms over ideological clashes.

Looking Ahead

With the hearing adjourned post-Holi (expected late March 2025), petitioners may file rejoinders on classification rationality. Outcomes could redefine executive-judiciary-legislature interplay, influencing federalism in law-making. Legal professionals should monitor for written orders clarifying these orals, as they portend a pragmatic era in constitutional criminal law.