Section 152 of Bhartiya Nyay Sanhita Introduction

• Recently, the Assam Police issued a summon to the editor of a prominent news agency under Section 152 of the Bhartiya Nyay Sanhita (BNS). 
• This has sparked significant debate among legal experts, journalists, and civil rights advocates regarding press freedom and the scope of the new provision.

Understanding Section 152 of Bhartiya Nyay Sanhita

• Section 152 BNS is designed to safeguard India’s sovereignty, unity, and territorial integrity.
• Objective: It criminalizes acts, communications, or publications that allegedly promote secessionist, rebellious, or subversive activities against the State.
• Intent: The provision aims to prevent threats to national stability and ensure that any activity undermining the country’s unity is punishable under law.

Understanding Sedition in India: From IPC to BNS Reforms

• • Sedition is historically recognized as the offense of inciting discontent, hatred, or rebellion against the government. Over time, India has updated its legal framework to redefine how such acts are addressed in a democratic context.

• Sedition Under the Indian Penal Code (IPC):

• • • Definition: Sedition was defined under Section 124A of the IPC as any act that attempts to bring the Government of India into hatred or contempt, or excites disaffection against it.
    • Legal Classification: It was considered a cognizable, non-bailable, and non-compoundable offense, meaning authorities could arrest without a warrant, and the case could not be settled privately.
    • Implications: This law was historically used to curb rebellion or anti-government propaganda, but it faced criticism for its broad wording, which allowed potential misuse against dissenting voices and journalists.

• Transition to Bharatiya Nyaya Sanhita (BNS): 

• • • The Indian government has replaced the IPC with the Bharatiya Nyaya Sanhita (BNS) to modernize the criminal justice framework.
    • Repeal of Section 124A: The colonial-era sedition provision has been repealed, marking a significant shift in India’s approach to handling dissent.
    • Introduction of Section 152 BNS: Instead of using the term “sedition,” BNS introduces Section 152, which criminalizes acts that endanger India’s sovereignty, unity, and integrity.

• Scope of Section 152 BNS:  Section 152 focuses on specific acts that threaten national stability, including:

• • Encouraging secession or division of the country
  • Promoting armed rebellion against the state
  • Engaging in subversive activities that challenge the government’s authority
  • Punishment: Depending on the severity, offenders can face up to seven years of imprisonment or life imprisonment.

A Historical Overview of Sedition Laws in India

• Origins of Sedition Laws:  

• • • 17th Century England: Sedition laws were initially enacted in 17th century England to curb dissent against the monarchy and prevent rebellion.
    • Introduction in India: The sedition provision was incorporated into the Indian Penal Code (IPC) in 1870.
    • Context for Implementation: The law was primarily aimed at containing Wahabi activities between 1863 and 1870, which the British colonial administration considered a threat to political stability.

• Sedition Laws and Indian Nationalists: During the late 19th and early 20th centuries, sedition laws became a tool for suppressing Indian nationalist movements. Several landmark trials exemplified the colonial use of this law:

• • Jogendra Chandra Bose (1891): Editor of Bangobasi newspaper, Bose wrote against the Age of Consent Bill, arguing it threatened religious freedoms and coerced Indians. His prosecution marked one of the first high-profile sedition cases in India.
  • Bal Gangadhar Tilak (1897): The nationalist leader and editor of Kesari newspaper was tried for sedition due to writings that criticized colonial policies. Tilak famously became a symbol of resistance against the colonial misuse of sedition laws.
  • Mahatma Gandhi (1922): Gandhi was tried under sedition laws for his activism against British rule. He described sedition as “the prince among the political sections of the IPC designed to suppress the liberty of the citizen”, highlighting its oppressive nature.

Key Judicial Milestones Under Sedition Law in India Post-Independence

• Early High Court Rulings

• • • Punjab High Court, 1951: Declared Section 124A unconstitutional, noting that it infringed upon fundamental free speech rights.
    • Allahabad High Court, 1959: Reaffirmed the earlier position, ruling that the sedition provision struck at the very root of free expression, highlighting the law’s potential misuse.

• Landmark Supreme Court Judgements

• Kedar Nath Singh v. State of Bihar (1962): 

• Upheld the constitutionality of Section 124A while limiting its scope. Key Observations:

• Citizens have the right to critically express opinions about the government.
• Sedition applies only when speech incites violence or public disorder, not mere criticism.
• Established a clear distinction between legitimate dissent and subversive activity.

•  P. Alavi v. State of Kerala (1982)

• Ruling: Sloganeering or criticism of Parliament or judiciary does not constitute sedition.
• Impact: Protected political dissent and public debate, reinforcing democratic freedoms.

•  Balwant Singh v. State of Punjab (1995)

• Case Details: Individuals shouting slogans like “Khalistan Zindabad” were charged with sedition.
• Outcome: Court acquitted the accused, stating:

• Raising slogans by a few individuals does not amount to sedition.
• There must be intent to excite hatred or disaffection against the government, which was absent in this case.

• Judicial Perspective on Sedition Law: Courts have consistently narrowed the ambit of sedition, emphasizing that:

• Criticism of government policies or officials is permissible.
• Only speech or action with intent to incite violence or public disorder can be penalized.

Criticisms of India’s New Sedition Law

• Ambiguity and Vague Wording: 

• Problem: Section 152 criminalizes acts that “endanger the sovereignty, unity, and integrity of India.”
• Criticism: These terms are broad and not clearly defined, giving authorities excessive discretion to interpret what constitutes an offense.
• Impact: Legitimate criticism of government policies, peaceful protests, or journalistic reporting could potentially be wrongly classified as subversive, echoing the misuse of the old sedition law.

• Viewed as a Modern-Day Sedition Law:

• Despite repealing Section 124A IPC, Section 152 is often considered a proxy for sedition.
• It targets similar forms of dissent, including acts promoting subversive or separatist activities.
• Chilling Effect: Fear of prosecution may silence public debate, journalistic investigation, and political dissent, raising concerns about freedom of expression.
• Judicial Concerns: The Supreme Court has highlighted the potential for abuse under broadly-worded sedition provisions.

• Lower Threshold for Prosecution: 

• Key Issue: Section 152 uses the term “knowingly” to define criminal acts.
• Criticism: The bar for prosecution is lowered, as individuals can be charged even without intent to incite violence or public disorder.
• Example: Sharing content on social media or expressing an opinion deemed provocative by authorities could lead to legal action, even if the person had no malicious intent.

• Potential Suppression of Dissent: 

• Cognizable and Non-Bailable: Section 152 allows immediate arrests without a judicial warrant, increasing the risk of misuse.
• Targeted Groups: Journalists, activists, and political opponents could face harassment or intimidation, similar to patterns seen under the colonial-era sedition law.
• Historical Parallel: Under Section 124A, thousands were arrested, but very few cases led to convictions, demonstrating the law’s potential for arbitrary application.

Understanding the Arguments in Favor of India’s New Sedition Law (Section 152, BNS)

• Safeguarding National Sovereignty and Unity: 

• • • Purpose: Section 152 aims to protect India from serious threats such as armed rebellion, secessionist movements, and terrorism.
    • Rationale: In a diverse and large democracy, certain provisions are considered necessary to prevent elements that actively seek to destabilize the state.
    • Example: Groups promoting separatism or armed insurrection could be prosecuted under the law, ensuring national stability.

• Modernizing the Sedition Framework:

• • • Old Law: Section 124A IPC focused on “disaffection towards the government,” a term rooted in colonial priorities.
    • New Approach: Section 152 replaces vague terminology with language that targets acts endangering sovereignty, unity, and integrity.
    • Significance: This aligns the law with contemporary national security needs rather than penalizing mere criticism of government policies.

• Addressing Emerging Threats in the Digital Age: 

• • • Digital Context: Supporters highlight that social media, online platforms, and digital communications can be exploited by radical groups and foreign adversaries to spread propaganda.
    • Expanded Scope: Section 152 includes provisions to address electronic communications, financial transactions, and other modern tools used to promote subversive activities.
    • Impact: The law enables authorities to counter cyber-radicalization and online incitement that could destabilize the country.

• Preventing Misuse Through Safeguards: 

• • • Law Commission Recommendations: The 279th report suggested retaining the law with safeguards, including a preliminary inquiry by a designated police officer before an FIR is filed.
    • Objective: This ensures that frivolous or politically motivated cases are minimized.
    • Caveat: Critics argue that Section 152 still lacks detailed procedural safeguards, but the intention is to strike a balance between enforcement and protection of citizens.

• Distinguishing Legitimate Dissent from Subversion: 

• • Key Principle: The law is not intended to suppress democratic dissent.
  • Allowed Expression: Citizens can openly criticize government policies and measures without fear of prosecution.
  • Criminalized Acts: Only actions that excite violence, separatism, or attempts to destabilize the state fall under Section 152.
  • Democratic Balance: The law attempts to preserve freedom of speech while criminalizing threats to national security.

 Way Forward 

• Clearer Legal Definitions: The legislature should precisely define terms like “subversive activities” and “endangering sovereignty, unity, and integrity of India” to clearly differentiate between genuine threats to the state and lawful criticism or dissent, reducing scope for arbitrary enforcement.
• Safeguards Against Misuse: Introduce mandatory approval from a senior police officer and a preliminary inquiry to filter out frivolous or politically motivated complaints, ensuring that journalists, activists, and political opponents are not harassed.
• Judicial Oversight: The judiciary should provide a contemporary interpretation that distinguishes between legitimate advocacy and incitement to violence, while maintaining a high threshold for conviction, limiting custodial interrogation for non-violent dissent.
• Institutional Review & Accountability: Establish an independent oversight body including judiciary, civil society, and academia to periodically monitor the application of Section 152, assess its impact, and recommend reforms based on evidence and ground realities.
• Transparency & Public Communication: Clearly communicate the law’s scope, safeguards, and intended use to the public and media, fostering confidence that legitimate dissent will not be penalized while threats to national security are addressed.