Sedition 2.0? Supreme Court seeks Centre's response to plea challenging Section 152 BNS

The Supreme Court on Friday issued notice to the Central government on a plea challenging the constitutional validity of Section 152 of the Bharatiya Nyaya Sanhita (BNS) which allegedly replaces the old sedition law under the Indian Penal Code (IPC) [SG Vombatkere v Union of India].

A Bench of the Chief Justice of India (CJI) BR Gavai and Justices K Vinod Chandran and NV Anjaria asked the government to respond to the plea filed by SG Vombatkere, a retired Indian Army officer, who had earlier challenged the offence of sedition under Section 124A of IPC.

According to Vombatkere's plea, Section 152 BNS violates Articles 14, 19(1)(a) and 21 of the Constitution and is a "repackaged sedition law".

As per the plea, even though the language of the new provision is altered, its substantive content now criminalises more vague and broad categories of speech and expressions.

"Section 152 criminalises a wide spectrum of expressive conduct, including those who “purposely or knowingly” use words—spoken, written, electronic, symbolic, or financial—to “excite or attempt to excite” secession, rebellion, or subversive activities. Its sweeping language, including phrases like “encouraging feelings of separatist activities,” fails the test of constitutional validity due to vagueness, overbreadth, chilling effect, disproportionate punishment, and absence of proximate nexus to public disorder," the plea argued.

It added that the government has, in effect, reinstated the old law despite it being suspended by the Supreme Court.

"The impugned provision is liable to be struck down as it violates the principles of clarity, necessity, and proportionality under Article 19(2), fails the test of due process under Article 21, and permits arbitrary State action, thus offending Article 14 of the Constitution. It threatens democratic discourse and the right to dissent, and thus cannot be permitted to remain on the statute book," the petition stressed.

Notably, the Supreme Court had on May 11, 2022 placed Section 124A in abeyance and asked the Central government and the States to refrain from registering any cases.  

The Court had also asked governments not to continue investigations or take coercive steps in all pending proceedings under the provision till the government's exercise is complete.

Senior Advocate PB Suresh along with Advocate-on-Record Prasanna S apeared for the petitioner SG Vombatkere.