Sedition law: Section 152 of BNS

Context: The Rajasthan High Court, in Tejender Pal Singh v. State of Rajasthan (2024) has raised caution about the misuse of Section 152 of the Bharatiya Nyaya Sanhita (BNS) to stifle legitimate dissent.

Relevance of the Topic: Mains: Challenges posed by Section 152 of BNS to citizens rights and freedom. 

Background:

• Section 152 of BNS: 
  • Section 152 of BNS criminalises acts related to secession, rebellion, and activities endangering national integrity. 
  • Whoever, purposely or knowingly, by words, either spoken or written, or by signs, or by visible representation, or by electronic communication or by use of financial mean, or otherwise:
    • excites or attempts to excite, secession or armed rebellion or subversive activities
    • encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India indulges in or commits any such act.
  • shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine. 
• Section 152 of BNS has its genesis in Section 124 A of Indian Penal Code, 1860 (IPC).
• Despite the Supreme Court’s suspension of sedition trials under Section 124A of the IPC in 2022 and verbal assurances from the government regarding the repeal of sedition, Section 152 of BNS has retained elements that can serve as a proxy for sedition. 

Problems with Section 152 of BNS

• Vagueness and expansive interpretation:
  • Section 152 criminalises ‘acts endangering the sovereignty, unity, and integrity of India’ without clearly defining what constitutes such endangerment.
  • This vagueness creates scope for expansive and subjective interpretations by law enforcement. E.g., A speech criticising a political figure or sympathising with a controversial ideology could be construed as endangering unity, leading to legal action.
• Lower threshold for offence – Use of ‘Knowingly’:
  • The inclusion of the term ‘knowingly’ in Section 152 lowers the threshold for prosecution. 
  • Even if a person does not intend to incite secession or rebellion, merely sharing a post on social media with the knowledge that it might provoke such feelings can result in arrest.
• Chilling effect on freedom of expression: 
  • Since Section 152 is a cognisable and non-bailable offence, individuals can be arrested without sufficient prima facie evidence, leading to harassment, prolonged detentions, and a chilling effect on free speech.
• Scope of Misuse: 
  • According to NCRB data, between 2015 and 2020, out of 548 persons arrested under Section 124A IPC, only 12 people were convicted. The broader scope of Section 152 suggests the potential for even higher misuse.
• Absence of Safeguards Against Misuse:
  • Unlike Section 124A, which had judicial interpretations limiting its misuse, Section 152 lacks clear statutory safeguards as of now.

Argument of Government for Section 152 of BNS: 

• The government has argued that there is a notable distinction between IPC Section 124A and BNS Section 152.
  • While IPC Section 124A deals with acts against the Government.
  • BNS Section 152 shifts the focus to actions endangering the sovereignty, unity, and integrity of India.
• Colonial interests have been replaced by needs of the democratic interests in Independent India.
• Criticism of the Government policies and actions are not punished under the new law. The requirement of ‘intent’ in law further raises the threshold for applicability of the provision.

Judicial approach and precedents in case of Section 124A of IPC:

• Kedarnath Singh v. State of Bihar (1962): The Supreme Court upheld the validity of sedition law but restricted its application to cases where speech incites violence or public disorder by differentiating between ‘disloyalty to the government’ and ‘strong criticism of government policies’.
• Balwant Singh v. State of Punjab (1995): The Court acquitted individuals for shouting slogans like “Khalistan Zindabad”, as it found no direct link between the slogans and any actual threat to national integrity.
• Javed Ahmad Hazam v. State of Maharashtra (2024): The Court ruled that the impact of words must be judged from the perspective of reasonable and courageous individuals, not overly sensitive or weak-minded persons.
• D.K. Basu v. State of West Bengal (1997): The Supreme Court laid down guidelines for arrest and detention, ensuring personal liberty is not infringed arbitrarily.

Way Forward

• Judicial guidelines for Section 152: The Supreme Court should frame specific guidelines for the enforcement of Section 152, ensuring clear demarcation of what constitutes an offence.
  • Similar to D.K. Basu v. State of West Bengal, guidelines should focus on protecting personal liberty and preventing arbitrary arrests.
• Statutory safeguards: Parliament should consider incorporating statutory safeguards in the BNS to prevent abuse regarding:
  • Mandatory judicial oversight before initiating arrests.
  • Requirement for prima facie evidence of incitement or public disorder.
• Promoting a marketplace of ideas: Drawing on Justice Holmes’ concept of the ‘marketplace of ideas’ (Abrams v. United States), liberal spaces for thoughts, beliefs, and dissent must be preserved. In a democracy, the best way to test the validity of ideas is through free and open discussion.
  • In the age of social media, it is critical to protect speech while maintaining a balance with national security.

While national security is paramount, laws like Section 152 of BNS must not be allowed to become instruments for curtailing free speech. Ensuring checks against misuse and protecting personal liberty are essential in safeguarding democratic values. The judiciary, through its careful interpretation and well-defined guidelines, can play a pivotal role in striking this balance.