The Indian state has not infrequently used the colonial offence of sedition, codified under Section 124A of the Indian Penal Code (IPC), as a tool to quell dissent. In May 2022, the Supreme Court of India asked State and central governments to refrain from registering new first information reports and from taking coercive measures under Section 124A in S.G. Vombatkere vs Union of India while the Centre said it would “reconsider” the provision. When the Bharatiya Nyaya Sanhita (BNS) took effect in 2024, Parliament effectively replaced Section 124A with Section 152 and increased the minimum sentence to seven years. It was sedition by a new name. In February 2026, Chief Justice of India Surya Kant orally observed that the Centre’s promise in 2022 to review the provision could not bind Parliament. As if to release the pressure on courts, but also effectively easing the country’s passage into the BNS era, on May 21, 2026, the Court said that if an accused person has no objection, courts may proceed on cases involving Section 124A. However, such consent from the accused may be coerced, especially if they lack robust legal representation, because the alternative for the incarcerated persons is indefinite delay. It is effectively a Hobson’s choice between bad and worse outcomes.

Indeed, as the 2022 stay paused the use of Section 124A pending constitutional challenge, how meaningful an accused person’s consent to trial can be where refusal may entail prolonged delay is unclear. S.G. Vombatkere also provided those charged with sedition to move for bail, meaning liberty rather than restoring proceedings was the intended remedy for frozen trials. The May clarification swings in the other direction, and also stands in contrast to the ‘bail is the rule’ principle that the Court recently reinforced in Syed Iftikhar Andrabi. If the Court wished to preserve agency, it should have paired continuation with a presumption of bail. The 2022 stay was also intended to annul the chilling effect of the charge of sedition on free speech. Now, wealthier or politically connected accused persons may secure bail through sustained litigation and wait out proceedings outside the prison, whereas poorer prisoners who are unable to secure bail will be compelled to consent to a trial, if only to obtain a verdict. As a result, liberty could depend on the capacity to litigate rather than on legal principles. Finally, if the state knows that cases involving constitutionally contested offences can remain in limbo while the accused persons are incarcerated, there is a perverse incentive for bad-faith state actors to not resolve the underlying uncertainty quickly. Instead of determining once and for all whether sedition as a criminal offence is constitutionally sustainable, the Court has passed the burden to the accused and declined to do its own duty.