| Introduction: Contextual Introduction Body: Highlight key issues regarding Section 152 of BNS and safeguards to prevent its misuse. Conclusion: Way forward |
Section 152 of the BNS, while omitting the term “sedition,” effectively reintroduces its essence by criminalizing acts that excite secession, rebellion, or subversive activities, and those endangering the sovereignty, unity, or integrity of India.
Key Issues
- Vagueness and Overreach: Terms like “endangering the sovereignty, unity, and integrity of India” are not explicitly defined, leaving the provision open to subjective and expansive interpretations.
- Lower Threshold for Liability: The use of “knowingly” in Section 152 lowers the bar for criminal intent. A person sharing a post on social media without malicious intent but aware it could provoke controversy might be prosecuted.
- Chilling Effect on Free Speech: Like its predecessor, Section 124A, Section 152 risks discouraging individuals from engaging in legitimate criticism, and fostering self-censorship out of fear of prosecution.
- Judicial Observations on Proxy Sedition: In Tejender Pal Singh v. State of Rajasthan (2024), the Rajasthan High Court highlighted that Section 152 could be wielded as a proxy for sedition.
Safeguards to Prevent Misuse
- Clear Definitions and Narrower Scope: Define terms like “endangering sovereignty” and “unity” to avoid subjective interpretations. Exclude criticism of government policies or public officials from the provision’s ambit, aligning it with judicial precedents.
- Judicial Oversight: Require judicial sanction before arrest or prosecution under Section 152 to prevent arbitrary action. Establish guidelines akin to those in K. Basu v. State of West Bengal for safeguarding personal liberty.
- Periodic Review and Sunset Clause: Include a sunset clause requiring periodic legislative review of Section 152 to evaluate its impact on free speech and dissent.
- Promote the ‘Marketplace of Ideas’: Embrace the principle articulated by Justice Holmes in Abrams v. United States, fostering a democratic space for competing ideas to flourish without fear of state repression.
Conclusion
Section 152 of the BNS, as currently framed, risks being weaponized to suppress dissent and stifle legitimate expression. Its broad scope and lack of safeguards echo the flaws of the now-suspended sedition law. To ensure it does not become a proxy for sedition, robust mechanisms—judicial oversight, narrow definitions, and a focus on causal consequences—must be embedded into its enforcement. By doing so, the law can protect national integrity without compromising the fundamental right to free speech, preserving India’s democratic ethos.
