Section 152 BNS: Acts endangering Sovereignty, Unity and Integrity of India

Section 152 BNS 2023 replaced the old sedition law (Section 124A of Indian Penal Code) criminalizing acts that promote secession, armed rebellion, subversive activities or endanger sovereignty and unity of India. It prescribes life imprisonment or up to seven years imprisonment and fine. Although it avoids the word ‘sedition’ it is seen as a continuation of the old law and has been condemned for vague terms like ‘subversive’ which raised concerns regarding misuse against dissent. Recently, in Tejender Pal Singh v. State of Rajasthan (2024), the Rajasthan High Court warned against using Section 152 of Bharatiya Nyaya Sanhita to curb peaceful criticism.

The criminal justice system of India saw a major overhaul on 1st July, 2024, with the introduction of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS) and Bharatiya Sakshya Adhiniyam (BSA) which replaced the IPC, CrPC and Indian Evidence Act to modernize the legal framework. Explore other important Judiciary Notes.

Section 152 BNS 2023

Act endangering sovereignty, unity and integrity of India

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, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India; or 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.

Explanation.—Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section.

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Download 5 Key take aways on Section 152 BNS 2023 PDF

Section 152 of Bharatiya Nyaya Sanhita 2023 deals with acts that endanger the sovereignty, unity and integrity of India. It prohibits speech, writing or any action that encourages secession, armed rebellion or subversive activities. It also addresses any act that encourages separatism or promotes activities that harm the unity of India.

Section 152 BNS 2023 Essential Elements

Section 152 BNS 2023 forbids acts that threaten the sovereignty, unity and integrity of India through various forms of communication. The essential elements of section 152 of Bharatiya Nyaya Sanhita 2023 focus on preventing activities that promote secession, rebellion, or subversive actions against the state. The following are the elements that define the scope and application of this provision:

• The act must involve speech, writing, signs or any form of communication.
• It should attempt to excite or cause secession, armed rebellion or subversive activities.
• The purpose of the act should be to encourage the division of India, promote separatist activities or weaken the sovereignty of India.
• The act could be through words (spoken or written). signs, visible representations, electronic communication or financial means.

Section 152 BNS 2023 plays an important role in safeguarding the sovereignty and integrity of India. However, given its wide ambit it must be applied with caution to balance national security with the fundamental right to freedom of speech. Here are the key aspects of its nature and scope:

• The scope of Section 152 is wide which encompasses any speech, writing or action that could potentially harm the unity or integrity of India.
• It includes acts that may encourage rebellion, secession, or separatism even if they don’t directly incite violence.
• The section is preventive and is implemented to protect national security.
• It aims to curb any attempts to disrupt the stability of the nation through subversive activities.
• The provision should be carefully applied to avoid infringing on freedom of speech and expression, especially in cases of legitimate criticism of the government.

Section 152 BNS 2023 Recent Judicial Pronouncements

Section 152 BNS 2023 addresses the unlawful promotion of secessionist activities. This section has generated significant legal discourse particularly regarding its potential misuse and overreach in several landmark judgements.

Recently, in the case of Tejender Pal Singh v. State of Rajasthan (2024), a Sikh preacher filed a quashing petition after being charged under Sections 152 and 197 of Bharatiya Nyaya Sanhita (BNS), 2023 for posting a Facebook video expressing sympathy for pro-Khalistani leader Amritpal Singh. The case raised concern regarding the potential misuse of Section 152 BNS as a substitute for the sedition laws especially in light of its vague language and broad scope.

Observations of the Court on Section 152 BNS

The Court acknowledged that Section 152 BNS shared similarities with Section 124A of Indian Penal Code and highlighted that it should be applied cautiously and ensure that it does not infringe upon the fundamental right to freedom of speech and expression. The Court held that for Section 152 of Bharatiya Nyaya Sanhita 2023 to be invoked, there must be an imminent connection between the speech and the potential for rebellion. The provision should act as a protection for national security and not as a tool to silence dissent.

Thus, the Court quashed the FIR and concluded that no offence had been committed under either Section 197 or Section 152 BNS. The decision underscored the importance of distinguishing between legitimate criticism and actions that genuinely threaten national security.

Comparison of Section 152 BNS 2023 vs Section 124A IPC 1860

Section 152 of Bharatiya Nyaya Sanhita 2023 and Section 124A IPC both address threats to the stability of the nation but they differ significantly in focus, scope and language. The table below highlights the key differences between the two provisions:

Aspect	Section 124A of IPC (Sedition)	Section 152 of BNS (Endangering Sovereignty, Unity, and Integrity)
Offence	Inciting hatred, contempt, or disaffection against the government established by law in India.	Inciting secession, armed rebellion, subversive activities, or encouraging separatism, which endangers the sovereignty, unity and integrity of India.
Punishment	Life imprisonment or up to three years imprisonment with fines.	Life imprisonment or up to seven years imprisonment with fines.
Focus	Sedition or actions that attempt to provoke disaffection against the government.	Actions that endanger India's sovereignty, unity, or integrity through subversive means.
Criticism of Government	Lawful criticism of government policies, without inciting hatred, contempt or disaffection, is not an offence.	Lawful criticism of government actions without inciting rebellion or separatism, is not an offence.
Scope of Act	Covers acts of sedition that may lead to disaffection or disloyalty.	Covers acts that threaten territorial integrity of India or encourage armed rebellion or separatist activities.
Explanation	Includes disloyalty and enmity in "disaffection."	Includes lawful criticism as non-offensive unless it incites secession or rebellion.

Section 124A IPC and its Constitutional Validity

Section 124A of Indian Penal Code which deals with sedition is highly contentious issue in Indian law. The provision has been the subject of various petitions questioning its constitutionality. The state argued that sedition falls under the ambit of "public order" in Article 19 of the Constitution, yet balancing this with the right to freedom of speech and expression is a challenging task for the Court. Over the years, from the Tara Singh case to Kedarnath Singh and S.G. Vombatkare, the provision has undergone extensive judicial scrutiny. Recently, the constitutionality of Section 124A, which was upheld in the 1962 Kedarnath Singh case by a five-judge bench, has been challenged again and referred to a larger bench of the Supreme Court. The Supreme Court has temporarily directed the government to refrain from filing FIRs under Section 124A.

The recently introduced Bharatiya Nyaya Sanhita, 2023 (BNS) which has replaced the Indian Penal Code does not penalize sedition directly. However, the new law contains provisions that penalize actions that threaten sovereignty, unity and integrity of India.

Analysis of Section 124A IPC

Section 124A was introduced into the Indian Penal Code in 1870, but it has undergone several amendments, the most significant of which was in 1951. In one instance, the East Punjab High Court struck it down for violating the freedom of speech and expression under Article 19(1)(a). Following the first amendment of the Constitution in 1951, the addition of phrases like "in the interest of the security of the State" and "public order" to Article 19(2) allowed the state to restrict freedom of speech. Despite these amendments, the provision continued to face constitutional challenges.

In the Kedarnath Singh case, the Supreme Court clarified that freedom of speech is not absolute and must be balanced with the state's security. The Court ruled that sedition is only applicable if the speech or act has the intention or tendency to disturb public order or threaten the security of the state. This distinction is important, as mere disaffection or criticism of the government does not constitute sedition unless it can lead to a disturbance of public order or endanger the security of the state.

Judicial Approach and Precedents Regarding Section 124A IPC

Over the years, the judiciary has taken a cautious and rights-oriented approach toward interpreting sedition laws, ensuring that free speech is not unduly restricted. The following rulings have explained the boundaries within which Section 124A IPC can be applied:

• Kedarnath Singh v. State of Bihar (1962):
  The Supreme Court upheld the constitutionality of the sedition law but limited its use to instances where speech incites violence or creates public disorder, distinguishing it from strong criticism of government actions.
• Balwant Singh v. State of Punjab (1995):
  The Court acquitted individuals who raised slogans like "Khalistan Zindabad," noting that the slogans did not pose any real threat to the unity or sovereignty of India.
• Javed Ahmad Hazam v. State of Maharashtra (2024):
  The Court emphasized that the impact of allegedly seditious speech must be evaluated through the lens of a reasonable and resilient person, rather than a hypersensitive or overly fragile individual.
• D.K. Basu v. State of West Bengal (1997):
  The Court in DK Basu case issued detailed guidelines on arrests and detention to safeguard personal liberty and prevent arbitrary infringement of individual rights.

Section 152 of BNS Constitutional Validity

Despite the persistent challenges to sedition laws, the Law Commission has recommended against their complete removal, as seen in the Kedarnath Singh case. However, Section 152 BNS 2023 which also aims to safeguard India's sovereignty, unity, and integrity, is framed differently and with vague terms. While sedition is not explicitly mentioned, the provision has a similar impact on restricting freedom of speech and expression.

Unlike Section 124A IPC, which has been carefully interpreted by the judiciary, Section 152 BNS uses broad terms that could potentially be overreaching. The provision penalizes actions that "excite" or "attempt to excite" activities that could endanger the sovereignty or integrity of India but the terms used are vague and open to broad interpretation. This creates significant risks of arbitrary application which could infringe upon fundamental rights guaranteed by the Constitution.

Section 152 BNS 2023 Potential Challenges

Section 152 BNS 2023 aims to protect sovereignty and unity of India its broad and ambiguous language raises several constitutional concerns. The Courts may face challenges in balancing national security with fundamental rights, as outlined below:

• Violation of Article 14 (Equality before the Law)

The vagueness in Section 152 BNS could result in arbitrary enforcement, violating the principle of equality before the law. In cases like Shreya Singhal, the Supreme Court has struck down Section 66 of IT Act, 2005 which was found to be too ambiguous and prone to misuse. The broad language of Section 152 could similarly lead to arbitrary decisions, making it open to legal challenges.

• Violation of Article 19 (Freedom of Speech and Expression)

Article 19(1)(a) guarantees the right to freedom of speech and expression, including the right to dissent. The Supreme Court has consistently upheld the right to dissent, and in cases like Kedarnath Singh, the Court emphasized that sedition laws should only apply when speech leads to a disturbance of public order. However the vague language of Section 152 BNS could restrict speech that is critical of the government or public figures even if it does not lead to public disorder. This raises concerns about the provision's compatibility with Article 19 of Indian Constitution.

• Vagueness and Overreach

The term "subversive activities," for example, is not clearly defined in the BNS and could be interpreted in a manner that includes legitimate political dissent and protests. The lack of precision in the terms used in Section 152 BNS could result in arbitrary application and abuse of power, undermining the balance between state security and individual rights.

• Draconian Impact on Fundamental Rights

Unlike the more carefully constructed Section 124A Section 152 BNS 2023 could have a draconian impact on the freedom of individuals. Its vague provisions which potentially criminalize a wide range of speech and expression could lead to significant overreach violating fundamental rights.

Conclusion

Section 152 BNS 2023 aims to protect India’s sovereignty and unity while trying to respect freedom of speech. Its broad language demands cautious application to avoid misuse against peaceful dissent. Judicial interpretations like Tejender Pal Singh emphasize the critical balance between national security and individual rights.