New Sedition Law (Section 152) – Issues & Way Forward – Explained Pointwise

Recently, the Assam Police has issued a summon to the editor of a popular new agency under Section 152 of Bhartiya Nyay Sanhita (BNS). Section 152 of BNS is aimed at protecting India’s sovereignty, unity, and integrity by criminalizing acts or communications that promote or encourage secessionist, rebellious, or subversive activities against the State. However, this new provision also faces legal challenges regarding its vagueness and potential for misuse. The critics of Section 152 consider it as a rebranded version of the colonial-era sedition law – whose cases the Court had kept in abeyance since 2022.

What is Sedition?

• Sedition is the offense of promoting discontent or rebellion against the government. It was historically defined under Section 124A of the Indian Penal Code (IPC) as an act that brings or attempts to bring into “hatred or contempt” or “excites or attempts to excite disaffection” towards the Government of India. It was classified as ‘cognisable‘ (No need of Court warrant to arrest the person) and a ‘non-bailable‘ and ‘non-compoundable‘ offence.
• The government has recently replaced the Indian Penal Code with the Bharatiya Nyaya Sanhita (BNS). Under BNS, Section 124A has been repealed, but a new provision, Section 152, has been introduced. This new law, while not explicitly using the word “sedition,” criminalizes acts that “endanger the sovereignty, unity and integrity of India.” It focuses on actions like encouraging secession, armed rebellion, or subversive activities, and carries a punishment of up to seven years or life imprisonment.

What has been the history of Sedition Law in India?

• Sedition laws were first enacted in 17th century England. Later it was inserted into IPC in 1870. The section was introduced initially to deal with increasing Wahabi activities between 1863 and 1870. These activities posed a challenge to the colonial government.
• Some of the most famous sedition trials of the late 19th and early 20th century involved Indian nationalist leaders. The first among them was the trial of Jogendra Chandra Bose in 1891. He was the editor of the newspaper, Bangobasi. He wrote an article criticizing the Age of Consent Bill for posing a threat to the religion and for its coercive relationship with Indians.
• It was also used to prosecute Bal Gangadhar Tilak (for his writings in Kesari) in 1897. The other well-known case was the sedition trial of Mahatma Gandhi in 1922. Gandhi had called Sedition ‘the prince among the political sections of the IPC designed to suppress the liberty of the citizen’.

What are the key judgements under the Sedition Law after Independence?

1. In 1951, the Punjab High Court had ruled Section 124A to be unconstitutional. A similar ruling was passed in 1959 by the Allahabad High Court, which also concluded that it struck at the very root of free speech.
2. Kedar Nath Singh v State of Bihar, 1962: The Supreme Court has upheld the constitutionality of Section 124A (sedition) on the basis that this power was required by the state to protect itself. However, it said that every citizen has a right to say or write about the government by way of criticism or comment. A citizen can criticize the government to the extent it does not incite violence against the government or with the intention of creating public disorder.
3. P. Alavi vs State of Kerala, 1982: The Supreme Court held that sloganeering, criticizing Parliament or Judicial setup does not amount to sedition.
4. Balwant Singh v State of Punjab,1995: The Supreme Court acquitted persons from charges of sedition for shouting slogans such as ‘Khalistan Zindabad’. The Court held that mere raising of slogans by two individuals alone cannot be said as sedition. Further, it is also not considered as an attempt aimed to excite hatred or disaffection against the government.

What are the criticisms of the New Sedition Law (Section 152)?

1. Vague and Broad Language: Article 152 criminalizes acts that “endanger the sovereignty, unity, and integrity of India.” Critics argue these terms are vague and not clearly defined, giving law enforcement agencies excessive power to interpret the law subjectively. This ambiguity could lead to the criminalization of legitimate criticism of the government or public protest, a problem that plagued the old sedition law.
2. A “Proxy” for Sedition: Despite repealing Section 124A, the new law is seen by many as a modern-day substitute. By criminalizing “subversive activities” and encouraging “separatist activities,” the law seems to target the same types of dissent as sedition, creating a “chilling effect” on free expression. The Supreme Court has even raised concerns about the “potentiality of abuse” of this provision.
3. Lowered Threshold for Offense: The new provision uses the word “knowingly” to criminalize acts. This is seen as lowering the bar for prosecution, as an individual can be charged even without a clear intent to incite violence or public disorder. This makes it easier to prosecute individuals for sharing content on social media or expressing opinions that authorities might deem provocative, even if the person’s intent was not malicious.
4. Suppression of Dissent: As a cognizable and non-bailable offense, Article 152 allows for immediate arrests without a judicial warrant. Critics fear that this will be used to harass and intimidate journalists, activists, and political opponents, mirroring the misuse of the old sedition law where a large number of arrests were made, but very few led to convictions. 

What are the arguments in favour of the New Sedition Law?

1. Protecting National Sovereignty: Proponents argue that the law is essential to counter threats to India’s unity and integrity, such as armed rebellion, secessionist movements, and terrorism. They assert that in a diverse nation, a legal provision is required to deal with elements that actively work to destabilize the state.
2. Modernizing the Law: The new law is presented as a replacement for the colonial-era Section 124A, removing the outdated term “sedition” and shifting the focus from “disaffection towards the government” to acts that “endanger the sovereignty, unity and integrity of India.” This change is seen as aligning the law more closely with contemporary national security concerns.
3. Addressing New Threats: Supporters point to the rise of social media and online propaganda, arguing that these platforms can be used by “adversarial foreign powers” and radical groups to incite hatred and violence. They claim that the law’s expanded scope, which includes electronic communication and financial means, is necessary to combat these new forms of subversion.
4. Preventing Misuse: The Law Commission of India, in its 279th report, recommended retaining the law but with additional safeguards to prevent its misuse. It suggested that a police officer of a specific rank should conduct a preliminary inquiry before a First Information Report (FIR) is registered. However, critics argue that the new provision still lacks sufficient safeguards.
5. Distinguishing Dissent from Subversion: Proponents argue that the law is not meant to curb genuine dissent or criticism of the government. They highlight the distinction between “disapprobation of the measures of the Government” (which is allowed) and actions that excite violence or separatism. The argument is that while criticism is vital for a democracy, acts that actively threaten the state must be criminalized.

What can be the way forward?

1. Clearer & More Precise Definitions: The most crucial step is for the legislature to provide clearer definitions for the vague terms used in the law, such as “subversive activities” and “endangering the sovereignty, unity and integrity of India.” A precise legal framework would help distinguish between genuine acts of secession or rebellion and mere criticism of government policies. This would provide police and courts with unambiguous guidelines, reducing the potential for arbitrary application and misuse.
2. Safeguard Against Misuse = To prevent the law from being used to harass journalists, activists, and political opponents, institutional safeguards are necessary:
   • Senior Officer Approval: One suggestion is to require approval from a senior police officer, such as a Superintendent of Police, before an FIR can be registered under this provision.
   • Preliminary Inquiry: Mandating a preliminary inquiry to determine if there is a prima facie case of inciting violence or public disorder would help filter out frivolous and politically motivated complaints.
3. Judicial Interpretation & Oversight: The judiciary will play a critical role in shaping the future of this law. The Supreme Court needs to revisit its landmark Kedar Nath Singh ruling and provide a more explicit and contemporary interpretation of the new provision. This interpretation should:
   • Distinguish Advocacy from Incitement: Clearly define the line between advocating for a cause (which is protected under freedom of speech) and directly inciting violence or public disorder (which should be criminalized).
   • High Threshold for Guilt: Establish a high legal threshold for conviction, ensuring that the law is used only in cases where there is clear evidence of a direct and imminent threat to national security.
   • Make custodial interrogation for journalists or those accused of non-violent dissent an absolute exception, upholding the Supreme Court’s recent observations.
4. Institutional Periodic Review & Accountability: Set up an independent oversight mechanism or periodic review committee (including representatives from judiciary, civil society, and academia) to monitor application and impact of Section 152, encourage accountability, and recommend reforms based on ground realities.

Conclusion:
A continued and transparent public and political debate about the law’s necessity is crucial. Engaging with civil society organizations, legal experts, and human rights groups can help build a consensus on how to protect national security without infringing on fundamental democratic rights. The government needs to demonstrate that the new law is a genuine step toward legal reform and not a mere rebranding of a colonial-era provision.