The Wire challenges Section 152 BNS after FIR for report on Op Sindoor; Supreme Court grants interim relief

The Supreme Court on Tuesday ordered that no coercive action be taken against The Wire Editor Siddharth Varadarajan in connection with the first information report (FIR) registered by the Assam Police against him for offence of endangering sovereignty and integrity of India under Section 152 of the Bharatiya Nyaya Sanhita (BNS).

A Bench of Justices Surya Kant and Joymalya Bagchi issued notice to the Central government and State of Assam on the plea which also challenged the validity of Section 152 of BNS which allegedly replaces the old sedition law under the Indian Penal Code (IPC).

"Issue notice. Meanwhile the members of the petitioner foundation against whom FIR has been registered on 11.7.2024 may join the investigation as and when required. However, no coercive action may be taken against them," the Court directed.

The Court was told that a similar petition challenging the vires of Section 152 is pending before the top court.

Hence, the Bench issued notice and tagged the matter with the said case.

"We are informed that the vires of Section 152 is also in challenge in which notice has been issued by the CJI. Tag this matter," the order said.

The FIR against was registered against The Wire and Siddharth Varadarajan (petitioners) for an article published by the news portal with regard to the Indian defence attache's comments about loss of Indian Air Force (IAF) fighter jets to Pakistan during the recent military action, Operation Sindoor.

The article title “IAF Lost Fighter Jets to Pak Because of Political Leadership’s Constraints’: Indian Defence Attache" was published on June 29.

A complaint was filed with the police by a private person about the same.

According to the plea, the complaint reached the petitioners through sources and the petitioners are reliably informed that the police are poised for surprise arrests.

According to the plea, the article in question contained only a factual report of a seminar organised by a university in Indonesia and statements made by India’s defence personnel, including India’s military attache to Indonesia, on the lost IAF jets and military tactics employed during Operation Sindoor.

As per the petition,

" The Wire’s updated story reflected the Embassy’s comment in the blurb. Notably, the same seminar and the officer’s statements there were widely reported in news channels/ websites across India, including by leading news websites such as The Indian Express, Hindustan Times, The Tribune, Financial Express, The Print, India Today, Frontline, etc."

The complainant is a member and office-holder of the ruling party in Assam, so the State’s deliberate attempt to target the petitioners cannot be ruled out, it was contended.

"No misleading information was published in the impugned article, nor any speech made that would threaten the sovereignty or integrity or security of the country. The Government’s version was in fact quoted in the story in full," the plea said.

According to the petitioners, Section 152 of BNS is effectively identical in effect to Section 124A of the Indian Penal Code which criminalised sedition.

The said provision has been kept in abeyance by the Supreme Court which had restrained States from registering any FIRs under its constitutionality is adjudicated.

However, in utter violation of the spirit of this Court’s interim order, Section 152 of BNS is being used to target free speech and the media across the country and this current FIR is one such incidence of targeting, the petitioners contended.

"The Court recently issued notice in a separate petition contesting Section 152…The new clause is vague but essentially has the same effect," Senior Advocate Nitya Ramakrishnan said on behalf of the petitioners.

"Does the mere potentiality of abuse declare a law unconstitutional? We said this in the PMLA case yesterday as well," Justice Bagchi remarked.

"Vagueness is an accepted ground for challenge," Ramakrishnan responded.

"Section 152 applies only where there is a clear threat to national sovereignty, otherwise, it is not triggered," Justice Kant said.

"Section 152 is purely an expression without substantive backing," Ramakrishnan said.

"Just because a certain provision can be misused does not mean we strike it down," Justice Kant underscored.

The Court also said that normally custodial investigation of media persons is unnecessary since most of the cases against them arise from publicly available content.

"In these kind of allegations where somebody has may be authored an article… normally when media people are entangled normally they organise a program or write an article etc… these are of matters where you don’t require custodial investigation.", said Justice Kant.

"Can media persons be treated as a separate class," responded Solicitor General Tushar Mehta on behalf of the government.

He also said that one cannot seeking anticipatory bail while also challenging the vires of a provision in the same petition.

"We are not classifying them as a separate class. We are only seeing the balancing rights of a fundamental freedom of speech against your right to investigate and maintain public order. When there is no imminent threat to public order just because these may be bordering on a threat to national security," Justice Bagchi clarified.

The Court eventually granted interim relief to the petitioners while issuing notice and tagging the case with the already pending petition challenging Section 152.

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