The Law of the Executive

With the admission that the law is being glaringly misused, the Supreme Court has suspended the use of Section 124A of the Indian Penal Code until the law is re-examined. The order is significant as it addresses the gap between the design of a law and its working by factoring in the instances of misuse as a ground for constitutional review. This article argues that sedition has been designed to serve as the “law of the executive” on two accounts. First, the choice of invoking the law is allowed to be governed by political considerations in cases dissociated with the legal understanding of the offence. Second, the possibility of a judicial trial is made contingent upon the will of the executive by instituting the requirement of sanction for prosecution.

The judicial order holding the 150-year-old law of sedition in abeyance resolves the legal aporia presented by the pervasive misuse of the law and the inadequacy of misuse forming a sufficient case to mount a constitutional challenge to the law. Until now, the misuse of law was considered as a pathology of its implementation and not a strong legal ground to challenge the letter of the law. The Supreme Court’s order calling for the suspension of Section 124A of the Indian Penal Code (IPC) until it is re-examined by the union government addresses the gap between the design of a law and its working by factoring in the instances of misuse as a ground for constitutional review.