This article is written by Ayush Raj, a Second Year law student at C.M.P. Degree College, University of Allahabad.
INTRODUCTION
The Sedition law had been a controversial criminal provision for decades as it had
influenced the Constitutional Right to Free Speech and Expression. Section 124A
of the IPC relating to the offence of sedition has been criticized for curtailing
Freedom of Speech and for being misused against political opponents,
journalists, students and activists. While governments claimed it was a needed
instrument to safeguard national security, civil liberties groups maintained it was
widely employed to target journalists, students, political opponents, and non-
violent protesters. After replacing the IPC (1860) with the BNS (2023), the
government abolished the word ‘Sedition’ from the Criminal Law. However, a new
provision dealing with acts that endanger the sovereignty, unity, and integrity of
India has been introduced. This raises an important question: Has India truly
reformed its Sedition law, or has it simply replaced it with a modern national
security law, continuing the same legal approach under a different name?
This article argues that BNS is both continuity and reform. The colonial offence of
sedition is removed and law is updated and modernized by focusing on threats to
national security rather than criticism of the government. However, the new
provision also includes some vague terms such as “subversive activities”,
“promoting separatist feelings”, and “threat to sovereignty” which could create
further confusion as to what acts could actually qualify as punishable offences.
Therefore, many of the implications that existed under the IPC, will continue. To
examine and address this question, this article compares the old and the new law,
reviews key judicial decisions, evaluates the advantages and disadvantages of
the reform and makes a brief comparison of India’s approach with that of other
democracies.
LEGAL FRAMEWORK
Section 124A of the Indian Penal code 1860 made it an offence to promote or
attempt to promote feelings of hatred, contempt or disaffection towards the
Government of India. The law was enacted under the British in 1870 and was
mainly designed to suppress political dissent and nationalist movements. It
introduced punishments for up to life term and remained one of the most misused
provisions of the Indian criminal law even after independence. The Bharatiya
Nyaya Sanhita, 2023 repeals section 124A and introduces a new offence for acts
that intentionally or knowingly endanger the sovereignty, unity and integrity of
India. The focus, unlike in the IPC, is not on protecting the government from being
criticized. Instead, the provision criminalizes activities such as armed rebellion,
separatist activities, and acts threatening the sovereignty of India through speech,
writing, electronic communication, financial support, or any other means.
This change suggests a shift from defending the government to defending the
nation. The difference is important because in a democracy, “Governments come
and go, whereas the nation and its constitutional values are permanent”.
Simultaneously the BNS is not specific about key terms such as “subversive
activities” or “promoting separatist sentiments”. The absence of clear definitions
creates uncertainty regarding the scope of offence and leaves wide discretion for
investigating agencies and courts.
CASE LAWS
Judicial decisions have largely shaped the constitutional definition of sedition.
One of the most important cases is Kedar Nath Singh v. State of Bihar, 1962. In
this case, the Supreme Court upheld the constitutionality of section 124A but put
a restriction on its use. The court said the constitution protects criticism of the
government, even if it is expressed in strong language, unless it incites violence
or causes public disorder. The judgement established the basis for
interpretation of the law in a manner, consistent with the right to freedom of
speech under article 19(1)(a).
Another important decision was in the case of Superintendent, Central Jail,
Fatehgarh v. Ram Manohar Lohia, 1960 where the Supreme Court held that there
must be a close and direct connection between the speech and public disorder
before criminal liability could be attracted. “Disagreement with the policies of the
government or peaceful criticism cannot be regarded as a threat to the security
of the state.” The ruling stressed that democratic governments must tolerate
peaceful criticism and dissent. More recently, in SG Vombatkere v Union of India,
2022, the Supreme Court expressed concern at the continued application of
section 124A. The court stayed the registration of fresh sedition cases under IPC
till the government reviewed the provision. This reflected the court’s recognition
that the colonial law was frequently misused and required fresh examination.
The introduction of Section 152 of the BNS can be seen as a reaction to these
constitutional developments. However, given that the new provision contains
broad expressions and language, it is possible that the courts will again have to
clarify its boundaries and make sure that it is applied only to genuine threats to
national security rather than mere political criticism.
CRITICAL EVALUATION
The substitution for Section 124A is a major symbolic reform. The legislature has
taken the view that independent India cannot hold on to a law originally
enacted to suppress the freedom movement by abandoning the colonial sedition
offence. The shift in focus from protecting the government to protecting the
nation’s sovereignty and integrity is an attempt to modernize India’s criminal law.
The BNS also acknowledges the present day security challenges and provides for
electronic communication, financial support and other modern means through
which anti-national activities can be organized. This brings the law more into line
with the context of cyber communications and transnational threats.
But there are a number of concerns. The primary concern is that Section 152
uses vague and undefined terms. Terms like subversive activities and the
encouragement of separatist feelings are capable of different interpretations.
Without clear definitions, there is a risk that peaceful protests, academic
discussions or even strong criticism of government policies could be investigated
under the provision. Another concern is that the offence still attracts harsh
penalties such as life imprisonment. In the absence of clear statutory safeguards,
there is a risk that the provision could be used against those involved in peaceful
political criticism, protests or academic discussions. In the absence of specific
legislative guidance, constitutional protections will likely once again rest in large
part on judicial interpretation. If the law is interpreted too broadly, it may
discourage citizens from expressing their opinions freely. Scholars of law have
further noted that while the offense’s name has changed, its effect may be the
same if applied without necessary safeguards and correction. Thus, the success
of the reform will largely depend on how the courts interpret Section 152 in future
cases.
COMPARATIVE PERSPECTIVE
Most democracies have either repealed or substantially reformed their old
sedition laws. India adopted the sedition provision (Section 124A), from the
United Kingdom, which formally abolished the offence of sedition in 2009. The
government determined that old sedition laws were not necessary in a modern
democracy with other laws already in place for national security. Other countries,
including Australia and New Zealand, have also reformed their laws by replacing
traditional sedition offences with provisions that are more specific
towards violence, terrorism or threats against national security. The reforms are
aimed at balancing freedom of speech against the legitimate need to protect the
country.
India has followed a different approach and path of legislation. The BNS, instead
of repealing the offence entirely, re-enacts the colonial provision by introducing a
wider offence based on sovereignty and national integrity. Though this
demonstrates an attempt to bring the legal system up to date and modernize it,
the effectiveness of the reform will be determined by whether the provision is
applied in a manner that is too broad, which would result in the silencing of bona
fide and legitimate democratic criticism.
CONCLUSION
The Bharatiya Nyaya Sanhita, 2023 is a significant milestone towards the
redesigning of India’s criminal law by repealing the colonial offence of sedition
and substituting it with a provision focused on safeguarding the sovereignty, unity
and integrity of the nation. There is a wonderful attempt to reformulate the law
and adapt to contemporary security challenges – with regard to digital
communication, cross-border threats, among other things. But the reform is not,
and may not be, complete. The shift has been from “protecting the government”
to “protecting the sovereignty and integrity of the nation.”
However, a lot of questions are still being raised towards the definition and the
possible misuse of the law, as the language in Section 152 of the BNS is
considered as too broad and vague. Lack of definition could result in ambiguity
and increase the possibility of consistent interpretation. As earlier constitutional
cases have demonstrated, the safeguarding and protection of the freedom of
speech depends upon not just the legal texts but also on how it is carefully
applied and enforced by the courts.
Hence the discussion on sedition is not entirely closed by the BNS. Instead, the
matter has been folded and has evolved into a larger question about how India
can or should settle differences of national security concerns with democratic
liberties, and has entered a new phase. Whether Section 152 is an actual reform
of or a continuation of the old sedition law under a different name would depend
on judicial interpretation and the responsible enforcement of the provision and the
continued commitment and adherence to the constitutional principles and values.
The real test of the BNS would be to see if it can successfully safeguard national
security and democracy by ensuring that citizens are able to speak what’s in their
minds and express their opinions freely.
