[S.152 BNS] Sedition Law Is A Shield For National Security, Not A Sword Against Political Dissent: Rajasthan High Court
Rajasthan High Court has ruled that Section 152, BNS had its roots in Section 124A of the IPC and was similarly worded to the offence of sedition. The Court ruled that the provision should not be used to cripple legitimate dissent and that only deliberate actions with malicious intent fell under its ambit.
Section 152, BNSS, criminalises any acts that endangered 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.”
Section 124A, IPC was the provision that criminalized sedition.
The bench of Justice Arun Monga was hearing a quashing petition filed against a Sikh preacher who was charged under Section 152 and Section 197, BNS for posting a video on facebook expressing sympathy for the pro-khalistani leader Amritpal Singh.
Observations on Section 152, BNS
After hearing the contentions from both the ends, the Court rules that there had to be a cautious application of Section 152, BNS, in consonance with the right to freedom of speech and expression. It opined that to invoke such provisions, an imminent connection was necessary between the speech and the likelihood of rebellion.
The Court further observed that the provision was not supposed to be seen as a sword against dissent but as a shield required for national security.
Observations on Section 197, BNS
Furthermore, the Court also rejected the charge in the FIR made on the grounds of Section 197, BNS, highlighting that the expression that was critical but did not incite any violence or hatred was not under the ambit of the provision.
Section 197, BNS provides punishment for anyone who makes imputations or assertions that were prejudicial to national integration.
The Court explained that Section 197 was aimed at protecting the harmony amongst diverse society of India by criminalizing such acts that fostered disharmony, enmity and hatred among these diverse groups. However, mere possibility of the offending act resulting in disharmony if in actuality it did not, was not sufficient to establish intent in the absence of any other material.
“Proper judicial oversight and clear guidelines on interpreting terms like "disharmony" and "ill-will" are essential to ensure the law achieves its intended purpose without becoming a tool for oppression or suppression of dissent,”
It was held that enforcement authorities were required to exercise restraint to ensure that constructive dialogues and political dissent were not stifled.
In this background, the Court analysed the video in relation to which the FIR was registered against the petitioner, and opined that since the video was made in Punjabi, it might happen that the content came off as offensive since the language was rich and expressive, however, there was no malice on part of the speaker.
“Colloquial Punjabi, with its rich and expressive nature, can invariably come across as offensive, even when no malice or intent to offend is present. This characteristic stems from the inherent directness and vigor of the language, which may sometimes be misunderstood. However, for such expressions to be deemed criminal, there must be demonstrable public repercussions or substantive evidence indicating deliberate malicious intent (mens rea) to commit any public unrest or incite violence. Merely perceiving a statement as offensive is insufficient without a broader context or tangible harm to substantiate the claim.”
The Court held that the message that was getting conveyed through the video was that India belonged to all of its citizens amongst whom there was equality. It opined that there was no attempt to excite rebellion or subversive activities, or promote feelings of separatist activities leading to endangered sovereignty and integrity of India.
Accordingly, it was held that no offence under Section 152 or 197, BNS were made out against the petitioner, and the FIR was quashed.
Title: Tejender Pal Singh v State of Rajasthan & Anr.
Citation: 2024 LiveLaw (Raj) 413