This article is written by Shourya Singh during his internship with Le Droit India.
Introduction
India’s jurisprudence has witnessed one of the most spectacular changes over the last several decades with the enactment of the Bharatiya Nyaya Sanhita (BNS), 2023, a new criminal code to supersede the colonial hangover Indian Penal Code (IPC), 1860. Of the several provisions that have attracted extensive criticism and scrutiny, the sedition provision—one of the most contentious provisions of the IPC—is the subject of popular, judicial, and political debate. Section 124A of the Indian Penal Code, making sedition a crime, has been viewed as a colonial repressive measure and as a law often abused in post-independent India to stifle political opposition and freedom of speech.
The BNS, enacted in 2023, aims to bring Indian criminal law at par with that of a modern constitutional democracy, with a central focus on reconsideration of the offense of sedition. Instead of merely repealing Section 124A, the BNS is proposing a redefined offense in a novel section and with a novel conceptual framework. The change is not merely nomenclature but jurisprudence—attempting to find a saner balance between state sovereignty and human rights.
This article offers a comprehensive, comparative appraisal of the IPC and the BNS sedition laws. By reading closely definitions, legislative history, essential controversies, judicial interpretations, and reform implications, this article tries to grasp whether the new regime truly goes beyond the weaknesses of the past or it is simply re-packaging the same old tools in new legal attire.
The Legal Definition of Sedition Under IPC
India’s sedition law was conceived in 1870, when the then-colonial British governing powers included Section 124A in the Indian Penal Code. The section states:
“Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the government established by law in India, shall be punished.”
At face value, this language would seem to encompass grave crimes against the state. But the adjectives with which to describe such as “hatred or contempt” and “disaffection” were vague and inclusive and were open to an astronomic scope of interpretation. More significantly, the IPC defined to determine that “disaffection” encompassed disloyalty along with all hostile sentiments, but not disapproval of government actions with the intent of effecting their change by constitutional process.
The punishment under Section 124A could be life imprisonment with or without fine, or a term of three years’ imprisonment. This harshness gave the state many powers against citizens who criticize the government. Charges of sedition could be brought not just against individuals who demand violent revolt but also against those making speeches or writing articles critical of government policy to an extremely extreme extent.
It is to be noted that this provision was written during a pre-constitutional period of time, when freedom of speech was not possible to ensure. In post-independence India, India decided to adopt a liberal Constitution with robust protective armor for individual rights such as Article 19(1)(a), ensuring freedom of speech and expression.
The Conceptual Shift in the Bharatiya Nyaya Sanhita
The Bharatiya Nyaya Sanhita does not keep the word “sedition” or the section number “124A.” Rather, it redrafts the offense under a new section—Section 150—titled “acts endangering sovereignty, unity and integrity of India.” Not only linguistic but philosophical too.
The new section punishes
“Anyone, with a deliberate or intentional mind, by voice, either spoken or recorded, or by signals, or by visible representation, or by electronic mail or by utilization of monetary means, or otherwise, provokes or attempts to provoke secession or armed rebellion or subversive activities, or instills separatist activity feelings or jeopardizes the sovereignty or unity and integrity of India….”
This new language reflects a conscious tightening of purpose. Rather than criminalizing loose “disaffection,” the BNS targets specific and threatening behavior—like fomenting secession or insurrection with the use of arms. The law wisely pegs the offense on conduct perilous to national sovereignty, and thus skirts criminalizing criticism or dissent.
In addition, BNS 150 makes the offense either knowing or intentional, thereby imposing more burdensome standards of proof on prosecutors. It is not a test for mere effect or tendency, but rather one of purposeful conduct directed at inciting rebellion or subversion. This in itself is a more robust articulation of constitutional protections of freedom of expression.
Historical and Political Controversies Surrounding Section 124A
Section 124A has been the most controversial and contested section of the IPC. It was employed against Indian national leaders such as Bal Gangadhar Tilak and Mahatma Gandhi during the colonial era. Gandhi, in his trial in 1922, famously referred to Section 124A as “the prince among the political sections of the IPC intended to stifle the voice of the citizen.”
Even after India gained independence in 1947 and a democratic Constitution was adopted in 1950, the law of sedition was not repealed. With each new government that came to power—irrespective of whether it was the ruling or opposition party—the law was used to arrest dissidents, journalists, students, and activists over the years.
One of the first and quite possibly the most influential legal challenges to Section 124A came in the form of the Supreme Court’s judgment in Kedar Nath Singh v. State of Bihar in 1962. The Court upheld the sedition clause as constitutional but limited its operation to that which caused or tended to cause violence or public disorder. While this reading sought to put the section into balance with Article 19(1)(a), enforcement on the ground has not been consistent. Courts and police authorities have persisted in using sedition in a wide range of cases where the speech or conduct was not an incitement to imminent violence.
Sedition cases were even filed in recent years against protesters of the CAA, journalists reporting against government incompetence, and even citizens for celebrating cricket teams of other nations. Courts eventually dropped the charges in many such cases, only after long-winding legal proceedings that led to harassment, jailing, and censorship.
The habitual maltreatment produced habitual calls for repeal or amendment. Sedition was condemned as having been converted into an instrument of state coercion, not protective vigilance, in the cause of national security.
Recent Judicial Developments and the Role of the Supreme Court
India’s Supreme Court has led the way in framing the sedition discourse. In May 2022, in a landmark interim order, the Court functionally suspended enforcement of Section 124A. It asked the Union and state governments not to register any FIRs, investigate, or take coercive measures under the sedition law until the government finished reconsidering the provision.
This action came on the heels of a Union government statement in court that it was reconsidering the law. The Court intervention was a reflection of judicial acknowledgment of the chilling effect of sedition and the need to bring criminal law into line with constitutional freedom.
This was a landmark in both the sense of its legal implications but of what it stood for: a judicial acknowledgment that law of sedition, at this juncture of time, was out of sync with democratic values India hoped to hold dear. That the BNS was added and the word “sedition” was erased would seem to be a direct result of this social and judicial pressure.
Reformations in the New Law under the BNS
The transition from Section 124A of the IPC to Section 150 of the Bharatiya Nyaya Sanhita (BNS) is not merely a cosmetic change of terms—it is a dramatic change in the philosophical foundation of Indian criminal law. Leaving behind the colonial understanding of sedition that had endeavored to equate dissent and criticism, the BNS tries to bring in contemporary legal responses to attempts on the state.
One of the most self-evident enhancements in the revised law is its terminological precision. The BNS eschews the term “sedition,” a term characteristically associated with colonial rule and symbolizing government intrusiveness. In its place, the BNS enunciates the offense in terms of acts that threaten the “sovereignty, unity and integrity of India.” This is a conscious avoidance of criminalizing feelings or thoughts such as “disaffection” and criminalizing tangible acts that really harm the nation.
The requirement of intent in BNS is also an important addition. Only such acts are made criminal under Section 150 as are done “purposively or knowingly,” i.e., there must be some element of mens rea (guilty mind), which has to be established. This aims at protecting individuals who might express unpopular views inadvertently but never intend in any manner to further violence or separatism.
Furthermore, the scope of the offense is better defined. Under the IPC, prosecution was available for any utterance that might be construed to be critical of the government. Under the BNS, on the other hand, it is restricted to utterances actually inciting armed insurrection, secession, or subversive activities. This effectively limits the scope and should act to bar abuse against peaceful protesters or political critics.
The most effective protection perhaps is the pre-sanction by the central government before investigation under Section 150. This check at step was missing in the IPC, and therefore, there used to be indiscriminate and frequent arrests. With this check inserted, politically motivated or frivolous prosecutions can be weeded out before reaching the courts and thus the criminal justice process will be fair.
These changes more closely harmonize the new law with democratic values and norms of the constitution. They recognize the essential role of opposition and criticism in a democracy without at the same time allowing the power of the state to be diluted by threats against its sovereignty and integrity.
Practical Challenges and Continued Ambiguities
Even with these noble reforms, the new law under the BNS is not perfect. Critics charge that while the word “sedition” has been struck, its essence is still dangerously close. The new section can still be used to muffle opposition, especially if police authorities give free rein to interpreting words such as “subversive activity” or “sowing separatist sentiments.”.
One of the major concerns is imprecision in language. The terms “subversive activities” and “inciting separatist sentiments of activities” are not clearly defined under law and are susceptible to wider interpretations. For example, would a call for greater autonomy in one of the provinces be deemed separatism? Would debate on self-determination among academics be subversive? Without judicial interpretation, the law is still able to silence opponents.
A second issue is that the condition of advance central government clearance, as a check in principle, can in practice generate political chokepoints or delays. In extremely polarized political contexts, such clearance can be susceptible to ideological bias or selective application. Procedural checks may not therefore be enough in the absence of a culture of accountability and judicial independence.
The punishment is still harsh. The BNS still provides for life imprisonment in extreme cases. Critics contend that it indicates an overly enthusiastic approach towards speech offenses, particularly because the test of establishing violent incitement is vulnerable to being subjective in politically sensitive cases.
Additionally, the transition from IPC to BNS also raises questions of legal continuity. If Section 124A is replaced, what happens to pending cases of sedition? Are there provisions to examine, transfer, or set them aside under Section 124A of the new Act? Lack of clear transitional provisions can create havoc and unregulated dispensation of justice.
The threat of abuse by local police continues to be a chronic issue. The law can be narrowly applied in court, but the process starts at the police rank and file who may or may not be aware of constitutional guarantees. Thus, the BNS reform’s success also depends on training, sensitization, and reform at the working level.
Comparative Global Perspectives on Sedition Law
To determine if the BNS is authentic progress, it is useful to examine how other democracies have approached the issue of sedition. Around the world, there has been a trend to restrict or eliminate sedition laws.
In the United Kingdom where India borrowed the law of sedition, the crime of sedition was abolished by law in 2009. British legislators termed it as outdated and not in consonance with the contemporary concept of free speech. They found that there were already enough provisions for inciting violence and disorder in public places to safeguard national interests.
In the United States, the First Amendment gives strong protection to political dissent and free speech. Although the United States also has legislation such as the Smith Act criminalizing inciting violent overthrow of the government, the Brandenburg v. Ohio (1969) ruling established a high standard: speech is penalized only if it is aimed at inciting imminent lawless action and at inciting or having a tendency to incite such action.
Canada and Australia also have drifted away from traditional sedition laws. Sedition in Canada is found in the Criminal Code but is not often used and is given more limited meaning. Sedition was eliminated in Australia in 2010 and replaced with law that punishes inciting violence instead of against the government.
India’s reform of the BNS follows these international standards to a significant extent, particularly in their focus on intent, violence, and national security over emotional disaffection or loyalty to the state. Yet that elusive words still linger and severe punishment still continues indicates India is still short of international best practice reconciling civil liberties and state security.
Sociopolitical Consequences of the Transition
The substitution of Section 124A by a new provision in the BNS is monumental symbolically and politically. It marks the end of a colonial device far too frequently used to suppress dissent, and it indicates the desire of a modern constitutional republic for free speech as an intrinsic right to be maintained.
The reform differentiates between state and government. Governmental criticism in the IPC was channeled into an attack on the state. The BNS finally rectifies the fallacy by targeting the risk to national integrity and sovereignty rather than disgruntlements with governmental policy. This differentiation is infinitely critical in a democracy where governments are elected, criticized, and ousted from office through public debate.
In practice, the reform will dampen the tendency of politicians and police to prosecute on sedition as a knee-jerk reaction. With additional requirements of center sanction and more express intent requirements, the abuse of sedition-like statutes may reduce. This will happen only if the new safeguard is fought hard and if courts persist in adhering to the intentions of constitutional freedom.
In political language, the shift might make democratic resilience more robust. Citizens might become stronger in articulating oppositional positions, and there would be more well-educated public discussion and more accountability. This might, in turn, diminish alienation and produce more democratic engagement.
Meanwhile, political polarization is a danger. If the governments in power use the new provision selectively or sporadically, it is likely to remain in the hands of repression. The reform is thus successful not just with the words of law, but with political culture, public awareness, and judicial awareness.
Conclusion
The substitution of Section 124A of the Indian Penal Code with Section 150 of the Bharatiya Nyaya Sanhita is a milestone in India’s political and legal history. It is an effort to harmonize two of the most basic principles of the Constitution, i.e., freedom of speech and national integrity.
The BNS reconfiguring the offense previously called sedition by circumscribing its ambit, making its intent requirement stricter, and adding procedural checks. These reforms align Indian criminal law with democratic international standards, but in a manner that does not deprive the state of necessary instruments to facilitate it to respond to actual threats such as secessionism, armed insurrection, or acts against sovereignty.
But the devil lies in the details. Amorphous language, generalised understandings, and ongoing severe punishments tempt misuse. Absent distinct judicial interpretations and strong enforcement of protections, the new section could inherit some of the same defects that have made Section 124A controversial.
Ultimately, success of the reform of sedition under the BNS hinges on implementation, judicial interpretation, and political will. If these forces align with the ethos of constitutional democracy, India has the potential to set an example for other countries that confront similar challenges between security and liberty.
References
- “Sedition and its replacement under Bharatiya Nyaya Sanhita”
Lexology
Link: https://www.lexology.com/library/detail.aspx?g=a1fcaa60-72fa-4315-bdbc-2679db761dac - “IPC vs. BNS: Key Differences You Should Know”
DigiLawyer
Link: https://digilawyer.ai/blogs/ipc-vs-bns#:~:text=as%20criminal%20offense.-,3.,7%20years%20along%20with%20fine.
