Section 152 BNS: Sedition 2.0 in the age of national security?

Section 152 of the Bharatiya Nyaya Sanhita (BNS) has become a topic of concern due to its broad language and potential misuse. This section criminalises acts that excite secession, rebellion, or threaten India’s sovereignty, unity and integrity.

While the word “sedition” is no longer used, Section 152 seems to mirror Section 124A of the Indian Penal Code (IPC), the controversial sedition law. In 2022, the Supreme Court suspended the use of Section 124A, citing its misuse to suppress dissent, and the government had promised to repeal it. However, the introduction of Section 152 in the BNS has raised doubts about whether the government truly intends to move away from such laws.

Section 124-A of the IPC, added in 1870, criminalises acts that incite disaffection towards the government. Originally introduced during British colonial rule, it was intended to suppress political dissent. Over the years, it has faced criticism for its misuse to curb free speech and opposition, raising concerns about its compatibility with democratic values.

In the case of Queen Empress v. Jogendra Chunder Bose (1891), the first recorded sedition trial in British India, the Bangobasi editor and others were charged under Section 124-A IPC for criticising the Age of Consent Bill. The Court distinguished "disaffection" from "disapprobation," and the case was dropped after an apology.

Recently, the Rajasthan High Court, in Tejender Pal Singh v. State of Rajasthan (2024), pointed out the similarities between Section 152 and the old sedition law. The Court warned that this provision could be used as a new way to stifle free speech and criticism. Without clear definitions or safeguards, Section 152 could target individuals for merely expressing opinions that authorities deem "threatening" to national unity. The Court held that the sedition law is a shield for national security, not a sword against political dissent.

Section 152 of the BNS and Section 124A of the IPC both address offences related to national security, but they differ in scope and impact. Section 124A focused on sedition, which involved inciting hatred or disaffection against the government, aiming to protect authority from dissent. In contrast, Section 152 of the BNS covers a broader range of acts threatening India’s sovereignty, unity and integrity, like secession and rebellion. However, its vague terms make it more open to misuse.

Another key difference is intent. Section 124A required a clear intent to incite disaffection, offering some protection for free speech. Section 152 lowers this bar, allowing prosecution even without intent to incite rebellion, like sharing provocative content. This raises fears of stifling free expression and suppressing dissent, as it lacks the judicial safeguards that were developed under Section 124A. While both aim to protect national security, Section 152 risks overreach and curbing individual freedoms.

Sedition laws violate the freedom of speech and expression under Article 19(1)(a) of the Constitution, as they criminalise expressions perceived as disaffection towards the government, restricting citizens' right to dissent and criticise governmental actions. They also conflict with the reasonable restrictions to free speech under Article 19(2), which permits limitations only for public order and national security.

1. Vagueness and overreach: Section 152 of the BNS criminalises acts that “endanger the sovereignty, unity, and integrity of India,” but it doesn’t clearly define what these terms mean. This lack of clarity allows for a wide range of interpretations, giving enforcement agencies the power to misuse the law. For instance, a speech criticising government policy or expressing controversial views could be labelled as “endangering unity,” which is essential for a democracy.

2. Lower threshold of intent: Unlike its predecessor, Section 124A IPC, which required clear intent to incite disaffection, Section 152 has a much lower threshold. The use of the word “knowingly” means that even actions without malicious intent can lead to prosecution. For example, sharing a social media post that is later deemed provocative could land someone in legal trouble. This low standard makes it easier for authorities to target individuals, potentially curbing free speech in a society that is already divided on political and social issues.

3. Chilling effect on free expression: Section 152’s cognizable and non-bailable nature makes it particularly concerning. People can be arrested without substantial evidence linking their speech to any direct harm. This is reminiscent of the misuse of Section 124A IPC, where between 2015 and 2020, only 12 out of 548 individuals arrested were actually convicted. Given that Section 152 is broader in scope, it carries an even higher risk of abuse, discouraging individuals from voicing their opinions for fear of legal repercussions.

Indian courts have consistently emphasised the need to balance national interest with freedom of expression:

● In Kedar Nath Singh v. State of Bihar (1962), the Court drew a clear distinction between disloyalty to the government and legitimate criticism of its policies. The Supreme Court upheld the constitutional validity of Section 124A but limited its application. Criticism of the government, unless it incites violence or public disorder, cannot be considered sedition, it held.

● In Balwant Singh v. State of Punjab (1995), the Supreme Court differentiated between casual sloganeering and acts with tangible repercussions, requiring a direct nexus between speech and its impact on criminal liability. Merely shouting slogans (“Khalistan Zindabad” in this case) without incitement to violence does not constitute sedition.

● In Javed Ahmad Hazam v. State of Maharashtra (2024), the Court reiterated that the effect of words must be judged by the standards of “reasonable, strong-minded” individuals, not “weak and vacillating” ones.

These landmark case laws underscore the importance of assessing the actual consequences of speech rather than criminalising expression outright.

1. Introducing clear guidelines for enforcement: To prevent misuse of Section 152, it is essential to establish judicial and legislative safeguards. The Supreme Court could issue detailed guidelines, similar to those in DK Basu v. State of West Bengal (1997), which provided clear instructions to prevent the abuse of power. These guidelines should define vague terms like “endangering sovereignty” and “unity,” ensuring that only serious and direct threats to national security fall under the provision. This would limit arbitrary arrests and protect individuals’ right to express dissent.

2. Shifting focus to consequences, not intent: Enforcement of Section 152 should focus on the actual consequences of speech rather than subjective interpretations of intent. For example, rather than prosecuting individuals for merely sharing information or expressing controversial views, authorities should examine whether the speech directly caused harm. Adopting a consequentialist approach, as seen in several judicial precedents, could strike a balance between maintaining national security and upholding freedom of expression.

3. Promote a marketplace of ideas: A democratic society thrives on the free exchange of ideas, as articulated by Justice Holmes in Abrams v. United States (1919). The concept of the “marketplace of ideas” emphasises that truth and progress emerge when diverse perspectives compete openly. In Schenck v. United States (1919), the US Supreme Court held that speech could be restricted if it posed a “clear and present danger” of causing substantive harm or inciting unlawful action.

Section 152 should not become a barrier to this principle. Instead, fostering a culture of open dialogue and constructive criticism would strengthen the democratic fabric while addressing legitimate national security concerns.

Section 152 of the BNS, in its current form, risks becoming a modern proxy for sedition, curbing dissent and chilling free speech. While national security is paramount, it must not come at the cost of individual liberties and democratic ideals. Legislative clarity and judicial oversight are imperative to ensure that this provision is not misused as a tool of oppression. Only by safeguarding the freedom of expression can India uphold its commitment to democracy and diversity.

Shivam Jadaun is a Data Protection Consultant at Tsaaro Consulting.

Views are personal.