Balancing Free Speech And National Security: A Critical Analysis Of Section 152 Of The Bhartiya Nyaya Sanhita And Section 124-A Of The IPC

Presently, the  SC has temporary directed the government to restrain from filing any FIR under §124-A of the IPC. Moreover, the India recently came up with Bhartiya Nyaya Sanhita, 2023, (hereinafter as “BNS”) which would replace the IPC.

The government asserts that it did not penalise theoffence of sedition under the new act. This statement is colourably in-line with the public demand and the Supreme Court's order. However, in order to safeguard the sovereignty,unity and integrity of India, the new law penalises –

“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.”

This article attempts to analyse and compare the constitutional validity of § 124-A of the IPC and § 152 of the BNS. It examines how § 124-A has been meticulously balanced to protect state security while upholding freedom of speech and expression, and contrasts this with the vague and potentially overreaching language of § 152 of the BNS.

S.124-A Of The IPC and its Constitutional Validity

S 124-A of the IPC titled 'Offences against the State', was added in 1870 by way of amendment.^[2] However, there have been constant amendments to § 124-A of the IPC, the latest one being that of 1951.^[3] The East Punjab High Court struck it down on the ground that it violates the freedom of speech and expression enshrined under Art. 19(1)(a) of the Constitution. However, after the first amendment to the Constitution in 1951,^[4] two phrases were added to Art. 19(2) which allows the State to restrict the freedom of speech and expression. These two phrases were “in the interest of the security of the State” and “public order”.

However, even after the said amendment, § 124-A of the IPC was recognised as in violationof Art. 19(1)(a) of the Constitution. Nevertheless, this judicial settlement did not last for long. The Supreme Court, in the landmark case of Kedarnath Singh, recalled the very first amendment and held that freedom of speech and expression cannot be an unrestricted one, and there has to a balance between the right and the security of the state. However, the Court attempted to draw an imaginary border between the right of the citizen and the security of the state. This means any such act, either done with intention or having the tendency, to disturb the public order or the security of the State, will constitute as Sedition. Inferentially, any such act without intention or tendency to disturb public order or security of the State, with the effect of mere disaffection or feeling of enmity towards the Government, will not amount to Sedition. Therefore, the intention or the tendency with the public disorder is sine qua non for the sedition.

However, it has to be noted that Art. 19(2) justifies the restrictions in the interest of public order, and not the mere disturbance in law and order. There is a very thin line difference between the public disorder and the non-maintenance of law and order. The Court has distinguished between them as 'law and order' is a comprehensive expression which includes not just public order, but also public peace, orderliness in locality or local area. According to the principle of Noscitur a Sociis, the meaning of words are to be construed by the company it is kept with. The term 'public order' was added in Art. 19(2) after the First Amendment. Art. 19(2) says that the reasonable restrictions are only valid when they are made “in interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of Court, defamation or incitement to an offence.”^[5] Therefore, it can be inferred that 'public order' carries an intense importance in security and defence of the State, unlike mere 'law and order' which is a general expression that includes 'maintenance of peace and tranquillity' as well. The concept of three concentric circles can be used to elaborate this as the hierarchy of situations in which 19(2) can be imposed. The largest circle is 'law and order', the middle one is 'public order' and the inner-most one is 'security of the state'. Hence, mere disturbance in public tranquillity would not amount to public disorder. It must be intense. Moreover, the violence caused should have the direct nexus with the speech or expression.

Hence, Section 124-A has been a subject of extensive judicial scrutiny. Landmark cases like Kedarnath Singh have demonstrated the meticulous balance this section maintains, requiring a clear intention or tendency to cause public disorder for an act to be considered seditious. This judicial interpretation ensures that while the state's security is protected, citizens' rights to free speech are not unduly infringed.

Constitutional Validity Of S 152 Of The BNS

Even though the validity of the law of sedition was challenged multiple times, the Law Commission recommended against the complete removal of the said provision under any condition, citing the same reason as that was held in Kedarnath Singh. In contrast, § 152 of the THE BNS aims to safeguard the sovereignty, unity, and integrity of India but does so with vague and broad terms. The drafting of the provision is very different from §124-A of the IPC, and the word sedition has not been used anywhere. Despite this fact, the one important similarity between both is that the nature of both the laws are such that they restrict right to freedom of speech and expression enshrined under Art. 19(1)(a) of the Constitution. Moreover, the pith and substance of both the laws is same, despite the different name.

Despite the government's intention to align with public demand and Supreme Court orders, § 152 of the THE BNS is flawed. It lacks the meticulous balance of § 124-A and can be challenged on the following grounds–

1. § 152 of the BNS violates Art. 14 of the Constitution-

The SC has laid down five circumstances wherein any order or decision would be arbitrary, one of which is if there is a total non-application of mind without due regards to the rights of the parties and public interest.

In the case of Shreya Singhal, the Court declared § 66A of the IT Act, 2000^[6] unconstitutional on the ground that the provision contains the terms like “grossly offensive or of menacing character”, “annoyance”, “inconvenience”, “danger”, “enmity”, “hatred”, “ill will” are vague and ambiguous and can be misused by the people in authority. Similarly, in this provision, there are a lot of discrepancies and ambiguity when it comes to precision of the terms that have been used by the provision. For example, the term subversive activities. As per theCambridge Dictionary, “subversive” means “trying to destroy or damage something, especially an established political system”. Whereas, theOxford Dictionary defines “subversive” as “seeking or intended to subvert an established system or institution” and “subvert” as “[to] undermine the power and authority of (an established system or institution).” Since these activities typically seek to cast doubt on the legitimacy and authority of the government's policies and acts, the ingredients are broad enough to include legitimate protests and expressions of disagreement with the people in authority.

Furthermore, the object of harm in §124-A of the IPC is the Government established by law. In the Kedar Nath Singh case, the Supreme Court defined the 'Government established by law' as the visible symbol of the State necessary for its continuity and stability, differentiating it from individuals engaged in administrative tasks. This clarity served to define the specific object requiring protection and indicated the level of harm necessary to constitute sedition. In another case, the Court interpreted Section 3 of the now-repealed TADA, which had a similar object of harm: the 'Government as by law established.' The Court ruled that the assassination of Rajiv Gandhi, the former Prime Minister, did not qualify as a terrorist act because he was not the sitting Prime Minister, and targeting him did not attempt to strike fear in the Central or State Government.

However, it has been amended under §152 of the THE BNS as India. This broadens the scope of the offense, as it can encompass criticism of the government, public figures, or even society and communities in general. This vague definition puts question mark on the motives of the government.

The vagueness in terms contrasts sharply with the precision required by judicial interpretations of § 124-A. This vagueness can lead to arbitrary application, violating Article 14 of the Constitution.

2. § 152 of the BNS violates Art. 19 of the Constitution

Freedom of speech and expression is an internationally recognized Human Right,^[7] fundamental to every free and democratic society.^[8] It includes the right to express ideas or views which others unwelcome or repugnant.^[9]

Art. 19(1)(a) includes rightto dissent, and it helps the democracy to grow. Publicdiscussions, including dissents, are encouraged. The Court emphasized that every person has a fundamental right to form his ownopinion. The State cannot prevent open discussion and open expression of views, howevercritical of its own views. The Supreme Court cleared in the case of Kedarnath Singh that any such law like sedition could not restrict the citizen's right to dissent. Moreover, in the case of Balwant Singh, the Supreme Court determined that even chanting slogans like 'Khalistan Zindabad' cannot be restricted, as merely raising such slogans, without causing any disturbance or inciting people to create disorder is not restricted by Article 19(2). Similarly, the Court held that even explicit demand for succession would not amount to the seditious act.

Furthermore, from SadashivNarayan Bhalerao to Niharendu Dutt Majumdar to Kedarnath Singh, the Court narrowly and strictly interpreted the effect that the restrictions must cause in order to make them 'reasonable'. Sedition was only allowed when the seditious act was intended to or has the tendency to cause public disorder, since it makes it 'reasonable' under Art. 19(2). However, the effect laid down under §152 of the THE BNS is way less reasonable, and does not fall under the ambit of Art. 19(2). The effect laid down under this provision is 'encourages feelings'. There have been ample of cases regarding sedition and its interpretation. However, the Court has not defined the term encourages feelings. Moreover, there is a huge difference in the intensity and gravity of public order and encouraging feeling. Hence, the restrictions made on the ground that it encourages feeling of separatist activities can be questioned on its reasonableness.

§ 152 of the BNS will actually have a very draconian impact on the rights of the individual. Sedition, with all the established interpretations, balances the right of the citizens and duty of the state very meticulously. Whereas, the BNS is drafted vaguely that would violate the fundamental rights of the citizens.

Shrushti Taori is a  student at Maharashtra National Law University, Nagpur & Tatva Damania is a student at Maharashtra National Law University, Mumbai. Views are personal.