The Supreme Court on Friday observed that Parliament retains the “absolute prerogative” to legislate and is not bound by any undertaking given by the Union government before the court, while hearing petitions challenging the constitutional validity of Section 152 of the Bharatiya Nyaya Sanhita (BNS).
A bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi made the remark during arguments that Section 152 — which penalises acts endangering the sovereignty, unity and integrity of India — effectively revives the offence of sedition under Section 124A of the erstwhile Indian Penal Code.
Counsel for the petitioners argued that in May 2022, when the Supreme Court had kept the colonial-era sedition law in abeyance and directed governments not to register fresh FIRs under it, the Centre had undertaken to review the provision. According to the petitioners, reintroducing a similar offence in the BNS violates that assurance.
The bench, however, made it clear that an undertaking by the executive does not curtail Parliament’s legislative powers.
“The Union of India may have given an undertaking before the court but Parliament is not bound by it. Parliament has the absolute prerogative to enact a law,” the bench said.
During the hearing, the petitioners also questioned Section 173 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), contending that it permits police to conduct a preliminary inquiry before registering an FIR, which they claimed runs contrary to the Supreme Court’s ruling in Lalita Kumari v. Government of Uttar Pradesh mandating FIR registration when a cognizable offence is disclosed.
Responding to the submission, the bench remarked that the Lalita Kumari judgment itself allows for a preliminary inquiry in certain situations to determine whether a cognizable offence is made out. It also observed that the ruling had often been “misused” and added that “sometimes judgments are delivered sitting in ivory towers.”
The court has posted the matter for further hearing after the Holi vacation.
The challenge to Section 152 is part of a broader set of petitions questioning provisions of the newly enacted criminal laws. The Supreme Court had earlier issued notice to the Centre on a separate public interest plea raising similar concerns about the provision.
