SEDITION 2.0: NEW NAME, SAME GAME IN INDIA’S LEGAL PLAYBOOK

Introduction 

The law of sedition in India has been a contentious issue since its inception. Rooted in the colonial era, Section 124-A of the Indian Penal Code (IPC) was introduced in 1870 by the British colonial government to suppress any form of rebellion or dissent against its rule. This provision criminalized any act that brought or attempted to bring into hatred or contempt, or excited or attempted to excite disaffection towards the government established by law in India. Despite India’s independence in 1947, this draconian law remained on the statute books, often criticized for its potential to stifle freedom of speech and expression.

Over the decades, Section 124-A has been invoked numerous times, sometimes to silence political opponents, dissenters, journalists, and activists. Its application has often sparked debates about its relevance in a democratic society that values free speech. Critics argue that the law is an anachronism that has no place in a modern democracy, while supporters claim it is necessary to maintain public order and national security.

The constitutional validity of Section 124-A has been challenged multiple times and the Courts have ruled that only those acts that have the tendency or intention to create public disorder or incite violence would fall within the ambit of sedition. Despite this judicial clarification, the misuse of the sedition law continued. Instances of its arbitrary application have led to widespread condemnation from human rights organizations, activists, and the general public. The Law Commission of India, in its 2023 report, also weighed in on this debate, suggesting that while the sedition law should not be completely repealed, it should be amended to prevent misuse and to align it with contemporary democratic values.

In an effort to modernize India’s criminal justice system, the government introduced the Bhartiya Nyaya Sanhita, 2023 (BNS), aimed at replacing the IPC. One of the significant changes proposed in the BNS is the removal of Section 124-A. However, this move is not as straightforward as it seems. Section 152 of the BNS, which deals with acts endangering the sovereignty, unity, and integrity of India, appears to retain much of the essence of the old sedition law, albeit with different wording. This new provision has been described as vague and potentially more restrictive, raising concerns about its impact on civil liberties and free speech.

The objective of this article is to conduct a detailed analysis of the constitutional validity of Section 124-A of the IPC and its counterpart in the BNS, Section 152. By examining the historical context, judicial interpretations, and potential implications of these provisions, we aim to understand whether the new law represents a genuine reform or merely a rebranding of the old sedition law. Through this analysis, we will explore the balance between maintaining national security and safeguarding individual freedoms, a critical issue in the context of India’s evolving democratic framework.

Section 124-A of the IPC 

Section 124-A of the IPC, dealing with “Offences against the State,” was introduced in 1870 to suppress dissent against the British government. Despite several amendments, the provision has remained a tool for the state to curb anti-government sentiments. The law states:

“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

The constitutionality of Section 124-A has been debated extensively. In the case of Tara Singh Gopi Chand v. The State, the East Punjab High Court struck down the provision, declaring it unconstitutional as it violated the freedom of speech and expression under Article 19(1)(a) of the Constitution. However, the first amendment to the Constitution in 1951 introduced two phrases to Article 19(2)— “in the interest of the security of the State” and “public order”—which provided grounds for reasonable restrictions on free speech.

In the landmark case of Kedarnath Singh v. State of Bihar, the Supreme Court upheld the constitutionality of Section 124-A but emphasized the need to balance the right to free speech with state security. The Court held that the law was valid only when used to curb activities that have the intention or tendency to cause public disorder or incite violence. This interpretation sought to create a clear demarcation between permissible criticism of the government and acts that threaten public order and state security.

The Kedarnath Singh judgment attempted to draw an imaginary border between the right of the citizen to freely express and the security of the state. According to the ruling, any act with the intention or tendency to disturb public order or the security of the state constitutes sedition. Conversely, mere disaffection or feelings of enmity towards the government without such intention or tendency does not amount to sedition.

The Court further distinguished between ‘public order’ and ‘law and order,’ clarifying that public order refers to situations that significantly impact the community, while law and order pertains to minor breaches of peace. This distinction is crucial as it determines the applicability of reasonable restrictions under Article 19(2).

Despite these judicial safeguards, Section 124-A has often been misused to suppress dissent, leading to widespread calls for its repeal. The Law Commission of India, in its 2023 report, recommended retaining the provision with certain amendments to prevent misuse while addressing national security concerns.

Section 152 of the BNS

The introduction of the Bhartiya Nyaya Sanhita, 2023, aimed to replace the IPC and bring significant reforms. One of the notable changes is the purported removal of the sedition law. However, Section 152 of the BNS, which deals with acts endangering sovereignty, unity, and integrity of India, seems to retain the essence of Section 124-A of the IPC but with broader and potentially more ambiguous language. Section 152 of the BNS states:

“Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial means, or otherwise, excites or attempts to excite, secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or indulges in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.”

The provision includes an explanation similar to Section 124-A, exempting comments expressing disapprobation of government measures by lawful means without exciting subversive activities or separatist feelings.

The phrases “subversive activities” and “endangers sovereignty” in Section 152 are not specifically defined, leading to concerns about potential misuse. The broad terms could be interpreted to include legitimate dissent and criticism, thereby curtailing free speech and individual liberties. This vagueness contrasts sharply with the precise judicial interpretation required by Section 124-A, which limits its application to acts with a clear intention or tendency to cause public disorder.

The Law Commission’s 2023 report also highlighted these concerns, noting that while the government claims to have removed sedition, the new provision’s broad language could still be used to suppress dissent, similar to the misuse of Section 124-A.

Comparisons between Section 124-A (IPC) and Section 152 (BNS)

5. Potential Challenges

Section 152 of the BNS could face several constitutional challenges on the grounds of vagueness and potential misuse:

1. Vagueness and Arbitrary Application

The Supreme Court has established that laws must be clear and unambiguous to avoid arbitrary application. In Shreya Singhal v. Union of India, the Court struck down Section 66A of the Information Technology Act for its vague and broad terms like “grossly offensive” and “menacing character,” which could be misused by authorities. Similarly, the ambiguous terms in Section 152 could lead to arbitrary enforcement, violating the principle of equality before the law under Article 14.

2. Freedom of Speech and Expression

Freedom of speech and expression is a fundamental right protected under Article 19(1)(a) of the Constitution. While reasonable restrictions can be imposed under Article 19(2), these restrictions must be narrowly tailored to serve a legitimate state interest. The Supreme Court, in cases like Kedarnath Singh and Balwant Singh v. State of Punjab, has emphasized that mere expression of dissent or criticism, without incitement to violence or public disorder, cannot be restricted.

3. Severity and Overlapping Provisions

Section 152’s broad and undefined terms could be interpreted to criminalize dissent and criticism, thereby infringing upon the fundamental right to free speech. The provision’s potential to be used as a tool for political repression raises serious constitutional concerns.

Section 152 of the BNS not only retains the essence of sedition but also enhances the penalties. The minimum punishment is seven years, compared to three years under Section 124-A, and the offence is no longer punishable by fine alone. This severity, combined with the provision’s vagueness, could lead to harsher punishments for acts that may not pose a real threat to public order or state security.

Moreover, Section 152 overlaps with Section 13 of the Unlawful Activities (Prevention) Act, 1967 (UAPA), which punishes unlawful activities that disrupt the sovereignty and integrity of India. The redundancy and potential for misuse of overlapping provisions further complicate the legal landscape and raise concerns about double jeopardy.

Conclusion

The introduction of the Bhartiya Nyaya Sanhita, 2023, and the replacement of the sedition law with Section 152 may appear as a significant reform. However, the new provision’s broad and vague language poses serious constitutional challenges and risks of misuse similar to its predecessor. While the intent to safeguard national security and public order is legitimate, it is crucial to ensure that such laws do not infringe upon fundamental rights and freedoms. A careful and balanced approach is needed to protect state security while upholding the principles of free speech and expression. Judicial interpretations and legislative amendments must work in tandem to create a legal framework that addresses national security concerns without compromising individual liberties. The future of India’s sedition law will depend on how well these objectives are balanced in practice.