Section 152 of the BNS

Source: This post on Section 152 of the BNS has been created based on article “Section 152 of BNS should not become a proxy for sedition” published in The Hindu on 10th January 2025.

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Context: The article addresses concerns over the potential misuse of Section 152 of the Bharatiya Nyaya Sanhita (BNS), enacted as part of India’s new criminal law framework. Although the government proclaimed the repeal of Section 124A (sedition) of the Indian Penal Code (IPC), the author argues that Section 152 of the BNS serves as a proxy for sedition, raising similar threats to freedom of speech and dissent.

What was the context of the Rajasthan High Court’s warning in Tejender Pal Singh v. State of Rajasthan (2024)?

1. The Rajasthan High Court cautioned against using Section 152 of the Bharatiya Nyaya Sanhita (BNS) to stifle legitimate dissent.
2. This follows the Supreme Court’s 2022 decision to suspend pending criminal trials under Section 124A (sedition) of the Indian Penal Code (IPC) until the government reconsidered the law.
3. The Union Home Minister had earlier proclaimed that ‘sedition’ would be repealed.
4. Section 152 of the BNS criminalises acts exciting secession, armed rebellion, and subversive activities, as well as those encouraging separatism or endangering India’s sovereignty, unity, and integrity.
5. Although the term “sedition” is not used, concerns arise that Section 152 replicates the essence of the repealed provision.

 What are the problems with Section 152 of the BNS?

1. Lack of Definition and Vague Terms

• Section 152 criminalises acts “endangering the sovereignty, unity, and integrity of India” but does not define what constitutes such endangerment.
• This vagueness leaves room for expansive interpretation by authorities, potentially stifling dissent.
• For example, criticism of historical or political figures could be construed as threatening unity or integrity.

2. Low Threshold for Offence

• The term “knowingly” lowers the threshold for liability.
• Sharing a post on social media, even without malicious intent, could lead to prosecution if it reaches a larger audience and provokes prohibited activities or feelings.
• Section 152 does not require prima facie evidence of a causal link between speech and its consequences, risking misuse.

3. Chilling Effect on Free Speech

• Section 152 is cognisable and non-bailable, making it prone to abuse like Section 124A IPC.
• National Crime Records Bureau (NCRB) data shows that from 2015 to 2020, 548 persons were arrested for sedition under Section 124A IPC, but only 12 were convicted.
• Section 152, being broader, poses an even greater risk of misuse.

What are judicial precedents on balancing free speech and national interest?

Consequentialist Approach: The judiciary has emphasized considering the actual impact of speech rather than the speech itself.

1. Balwant Singh v. State of Punjab (1995): Distinguished casual sloganeering from its consequences, requiring a direct causal nexus to determine an offence.
2. Javed Ahmad Hazam v. State of Maharashtra (2024): Judged speech by the standards of “reasonable, strong-minded” individuals, not “weak and vacillating” minds.
3. Kedar Nath Singh v. State of Bihar (1962): Differentiated “disloyalty towards the government” from strong criticism of its policies.

 What is the way forward for Section 152 BNS?

1. Judicial Guidelines: The Supreme Court should establish guidelines for enforcing Section 152, similar to the guidelines on arrests in K. Basu v. State of West Bengal. Clear boundaries for terms like “endangering sovereignty” or “unity” are needed to prevent misuse.
2. Marketplace of Ideas: Drawing from Justice Holmes’ vision in Abrams v. United States, society should allow a free flow of ideas and criticism to foster democratic growth. The focus should be on creating a space where ideas are tested and accepted based on their merit.

 Why is this important?

1. Free expression is vital in a democratic society, especially in the age of social media.
2. Without safeguards, Section 152 risks becoming a tool for suppressing dissent, much like its predecessor, Section 124A IPC.