Janav Arun
Introduction
In its order dated 11th May 2022, in S.G. Vombatkere v. Union of India, the Supreme Court stayed all current matters regarding Section 124A of the now repealed Indian Penal Code (IPC). The Court provided clear reason for the stay, recognising the sitting Government’s blatant misuse of the sedition provision. It further commended the Government’s progress on reworking the sedition provision to date and urged it to expedite the process. Subsequently, on the 1st of July 2024, the Bharatiya Nyaya Sanhita (BNS) came into effect, and with it, India’s new sedition provision; Section 152.
Section 152 of the BNS paints the offence of sedition in a new light. While Section 152 is portrayed as a transformational, postcolonial evolution, its text reflects a more restrictive approach, potentially tightening the Government’s grip on the voice of the country. The most obvious factor in this tightening is in the language of Section 152. Terms such as ‘subversive actions’ and ‘feelings of separatist activities’ are vague and ambiguous and do not instil any more a democratic sentiment than 124A. However, the more interesting difference to note is the change in the subject of sedition from of ‘Government established by law in [India]’ to ‘India’.
Understanding the Legislative Outline
To understand the weight of this distinction, it is important to comprehend the legislative object of sedition law. For this, we must begin with Niharendu Dutt Majumdar v. The King Emperor, wherein the Federal Court dealt with a case under Rule 34 (6) (e) of the Defence of India Rules. The language of Rule 34 (6) (e) was in para materia with Section 124A of the IPC. Chief Justice Maurice Gwyer observed the object of sedition law to be to enable the Government to preserve law and order as a fundamental underpinning of civilisation and social happiness.
Therefore, it is clear there is a direct and necessary nexus between sedition law and the ability of the State to govern. Sedition law exists only in the context of the Government maintaining order, and the entire provision hinges on the subject of the seditious matter being the ‘Government Established by law in [India]’. This is reiterated in the Supreme Court’s landmark decision in Kedar Nath Singh v. State of Bihar, which upheld the constitutionality of Section 124A of the IPC. Here Chief Justice Bhuvaneshwar Prasad Sinha writes, “Hence the continued existence of the Government established by law is an essential condition of the stability of the State. That is why sedition, as the offence in s. 124A has been characterised, comes under Chapter VI relating to offences against the State.”
Thus, the object of 124A is to ensure that the Government’s ability to maintain law and order is not undermined. By strictly interpreting ‘Government established by law’, the constitutional bench in Kedar Nath Singh works around the vague phrasing of Section 124A (‘feelings of disaffection to the Government’), thereby maintaining some narrowness to the application of the provision.
The Effect of the New Provisions
What is the actual judicial consequence of replacing the phrase ‘Government Established by Law’ with ‘India’? In Nalini v. State of Tamil Nadu(the Rajiv Gandhi assassination case), the Supreme Court was dealt with determining whether the acts of Nalini and the accused amounted to terrorist activity thereby attracting the Terrorist and Disruptive Activities (Prevention) Act (TADA). While strictly interpreting Section 3(1)(i) of the TADA, Justice D.P. Wadhwa writes, “Under Section 3 (1) of TADA overawing the Government cannot be the consequence but it has to be the primary object..”
Nalini discusses the ‘Government’ in the context of TADA, but the material point is that the outlines of the judicial idea of a Government is fixed and recognised clearly. The jurisprudence with regards to this matter is clear, when sedition law proposes to protect the State, it is not protecting an abstract idea or sentiment. Rather, it is protecting the very material ability of the Government to maintain law and order. The ‘Government’ has recognisable boundaries and its scope might not be narrow, but it is finite. Hence, the assassination of a former Prime Minister by the Liberation Tigers of Tamil Eelam or “LTTE”(a UAPA categorised terrorist organisation) does not amount to a terrorist activity as under the TADA because it does not threaten to ‘overawe’ the State. Again, the use of the word overawe is not suppositional phrasing, it means specifically to threaten the ability of the State to govern and maintain law and order.
Analysis of Section 152 and its Broader Implications
Therefore, the phrases ‘Government established by law’ and ‘India’ may not be completely without overlap but they range drastically in their scope. Supposing Section 3(1) of the TADA replaced ‘Government’ with ‘India’. An assassination attempt of an important political figure by design rips at the fabric of any country and would definitely fall within the ambit of ‘overawing India’. The concept of India is impossible to define socially, never mind scientifically. It is this lack of conception that makes it a very dangerous legal idea. The consequences are far more severe with sedition law. With a conviction rate at one point of 3.3%, frivolous suits were the bane of Section 124A. This abuse took place under the eye of a judiciary that spent decades post-independence carefully balancing Section 124A in its application and setting out strict tests for the law of sedition. Given that it is impossible to define the ambit of ‘India’, the scope for raising frivolous suits has not been lessened since section 124A and might even be widened. Further, given the lack of a legal concept of ‘India’, it will necessarily require the prosecution to establish a conception of India that the court agrees with. They will then have to establish how the allegedly seditious material affects this conception of India. This conception can have infinite faces when considering the rich plurality of social, cultural, and political meanings India holds. The inherent vagueness of this concept invites arbitrary interpretation, raising the risk that the law will be wielded as a tool for stifling dissent rather than preserving genuine threats to the State’s ability to maintain order.
The substitution of ‘Government established by law in [India]’ with ‘India’ fundamentally alters the scope of the sedition offence. The term ‘India’ is amorphous compared to the more concrete, institutional ‘Government established by law’, which refers to the State’s governing apparatus. ‘India’, as used in this provision, encompasses not just the government but also an abstract sense of national identity, culture, and unity. This expansion potentially allows for the criminalization of actions or expressions that do not directly undermine the ability of the government to maintain law and order but might be perceived as offensive to a broader notion of Indian unity.
The broadened language in Section 152 raises concerns about its alignment with constitutional guarantees of free speech, as outlined in Article 19(1)(a). While Clause (2) of Article 19 allows the State to impose reasonable restrictions in the interests of the sovereignty and integrity of India, public order, and decency, these restrictions must be narrow and proportionate. The substitutionmay blur the line between criticism of the government and criticism of the nation, inviting a wider range of potentially lawful expression to fall under the scope of sedition.
Conclusion
This substitutioncould be a huge step backwards in the development of sedition law, completely contrary to the Supreme Court’s intention and direction in their stay order of Section 124A. Section 152 of the Bharatiya Nyaya Sanhita represents a pivotal shift in India’s sedition law, but its implications pose significant challenges to the principles of democracy and free expression. The change from protecting the “Government established by law” to safeguarding the abstract entity of “India” expands the scope of sedition in a manner that risks undermining the constitutional guarantees enshrined in Article 19(1)(a). As observed in the debates during the framing of the Bharatiya Nyaya Sanhita, the legislative intent was to modernize and streamline penal laws in a way that reflects a postcolonial, pluralistic India. Yet, this evolution appears to deviate from the judiciary’s painstaking efforts to narrowly interpret sedition under Section 124A, ensuring its application was confined to genuine threats to law and order. ‘India’ could become a blackhole from which absolutely no tweet, newspaper article, YouTube video or book could escape, a reality we already lived with the sitting Government’s abuse of Section 124A. At the heart of this matter lies India’s beautiful inability to be defined, which should exist for us to express through song and dance, not as legislative fetter to this expression.
The Author is a third-year student at National Law School of India University, Bengaluru
Image Credit: The Legal Affair
Constitutional Law Society 
Leave a comment