Section 152 of BNS Should Not Become a Proxy for Sedition

Context: In the case of Tejender Pal Singh v. State of Rajasthan (2024), the Rajasthan High Court cautioned against the potential misuse of Section 152 of the Bharatiya Nyaya Sanhita (BNS).

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• This criminalizes acts that endanger the sovereignty, unity, and integrity of India.
• In 2022, the Supreme Court suspended pending trials and proceedings under Section 124A (sedition) of the IPC, anticipating its reconsideration by the government.
• The Union Home Minister verbally announced the repeal of sedition as an offence.
• Section 152 of the BNS criminalises acts that excite secession, rebellion, or subversion, as well as those that encourage separatism or endanger sovereignty, unity, and integrity.
• While the term ‘sedition’ has been omitted in the BNS, Section 152 retains similar elements, raising concerns about its potential misuse.

Problems with Section 152 of BNS

Vague Terminology

Section 152 criminalizes acts that “endanger the sovereignty, unity, and integrity of India” without defining what constitutes such endangerment.

• This vagueness allows for broad interpretations by enforcement authorities.
• Criticism of political or historical figures could be construed as endangering national unity, leading to potential legal actions against individuals expressing dissent.

Lowered Threshold for Liability

• The inclusion of the term “knowingly” lowers the threshold for committing an offence under Section 152, especially in the context of social media.
• A person could be prosecuted for sharing a post that reaches a larger audience and may provoke prohibited activities, even without malicious intent.

Potential for Abuse

The lack of a requirement to establish a causal link between speech and its consequences raises concerns about abuse similar to that seen under Section 124A of the IPC.

• Historical data from the National Crime Records Bureau (NCRB) indicated that out of 548 arrests for sedition between 2015 and 2020, only 12 resulted in convictions.
• This suggests a high potential for misuse in broader and less specific provisions like Section 152.

Recommendations by the Court

Judicial Interpretation

The judiciary should adopt a consequentialist interpretation when applying Section 152 to balance national interests with freedom of expression.

• Courts have historically focused on actual consequences rather than merely the content of speech.
• Precedents from cases like Balwant Singh v. State of Punjab (1995) and Kedar Nath Singh v. State of Bihar (1962) emphasise the need for a direct causal relationship between speech and its impact.

Guidelines for Enforcement

• The Supreme Court should develop clear guidelines delineating the boundaries for terms used in Section 152 to prevent arbitrary enforcement.
• This approach mirrors its previous rulings, such as in K. Basu v. State of West Bengal regarding arrests.

Encouraging Free Expression

There should be a liberal space for diverse thoughts and expressions, especially in the age of social media.

• The concept of a “marketplace of ideas,” articulated by Justice Holmes in Abrams v. United States, should guide enforcement to foster democratic dialogue.
• Safeguards Against Abuse: Given the lack of built-in safeguards within Section 152, it is crucial to ensure that enforcement does not become a proxy for stifling dissent or criticism under a guise similar to sedition laws.

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