Author: Siddharth Singh Chaudhary
College: Babu Banarasi Das University
To the Point
For over a century, Section 124A of the Indian Penal Code, 1860, criminalised speech that brought or attempted to bring the Government into “hatred or contempt” or excited “disaffection” towards it. Colonial in origin and repeatedly criticised as a tool for suppressing dissent, the provision was formally repealed with the enactment of the Bharatiya Nyaya Sanhita, 2023 (“BNS”), which came into force on 1 July 2024. Yet Section 152 BNS, which replaces it, criminalises acts that “excite secession, armed rebellion, or subversive activities,” or that endanger the “sovereignty or unity and integrity” of India — language that critics argue merely repackages sedition under a new label without curing its constitutional infirmities. This article examines whether Section 152 BNS represents genuine reform or continuity in disguise, tracing the doctrine from Kedar NathSingh v. State of Bihar (1962) through the Supreme Court’s 2022 suspension of Section 124A in S.G. Vombatkere v. Union of India, to the present debate over the new provision’s constitutionality.
Use of Legal Jargon
Key terms of art used throughout this analysis:
• Sedition — historically, the offence of inciting hatred, contempt, or disaffection against a lawfully established government through words, signs, or visible representation.
• Doctrine of Reading Down — a judicial technique by which a court preserves the constitutionality of an otherwise overbroad statute by interpreting it narrowly, consistent with constitutional limits, rather than striking it down entirely.
• Reasonable Restriction — the standard under Article 19(2) of the Constitution permitting the State to restrict free speech only on specified grounds (sovereignty, security, public order, decency, etc.), and only to a reasonable extent.
• Chilling Effect — the discouragement of lawful speech and dissent caused by an unduly broad or vaguely worded penal provision, irrespective of whether prosecution actually follows.
• Stare Decisis — the doctrine that courts should follow precedent established in earlier decisions of co-ordinate or superior authority.
• In Terrorem Effect — the deterrent impact of a legal provision arising from the fear of prosecution itself, independent of the likelihood of conviction.
• Doctrine of Severability — the principle allowing a court to strike down only the unconstitutional part of a statute while preserving the valid remainder.
• Manifest Arbitrariness — a ground of constitutional review under Article 14 by which a law or executive action may be struck down if it is capricious, irrational, or excessive, without adequate determining principle.
The Proof
1. The Textual Continuity Between Section 124A IPC and Section 152 BNS
A close textual comparison reveals substantial overlap. Section 124A penalised words or signs that brought the Government into “hatred or contempt” or excited “disaffection.” Section 152 BNS drops the words “Government established by law” and “disaffection,” substituting language criminalising acts that “excite secession, armed rebellion, subversive activities,” or encourage “feelings of separatist activities,” or endanger “sovereignty or unity and integrity.” While the removal of the phrase “disaffection towards the Government” is presented as a liberalising change — shifting the focus from the Government to the State/nation — the phrase “subversive activities” remains undefined, and “encouraging feelings of separatist activities” is arguably broader than the discarded “disaffection” standard it replaced.
2. Enhanced Punishment as Evidence of Continuity, Not Reform
Under Section 124A, the maximum sentence was life imprisonment or up to three years, with a fine. Under Section 152 BNS, the maximum remains life imprisonment, but the minimum has been explicitly raised, and the provision now also covers electronic communication explicitly — widening, rather than narrowing, its practical reach in the digital age.
3. The Suspension Precedent — S.G. Vombatkere (2022)
In May 2022, in an unprecedented interim order, the Supreme Court effectively suspended the operation of Section 124A IPC pending its own re-examination of the provision’s constitutionality, directing that no fresh FIRs be registered under the section and that pending cases be kept in abeyance. This was widely read as an implicit acknowledgment that the law, as it then stood, could not survive constitutional scrutiny after over sixty years of the Kedar Nath Singh reading. The Union’s subsequent legislative repeal via the BNS was, on one reading, a pre-emptive move to render the pending constitutional challenge infructuous before the Court could deliver a final verdict on Section 124A’s validity.
4. Empirical Pattern of Misuse
NCRB and parliamentary data compiled over the preceding decade showed sedition charges disproportionately filed against journalists, students, and political critics, with conviction rates in the low single digits despite a steady rise in the number of FIRs registered — a pattern strongly probative of the chilling effect the Supreme Court itself flagged when ordering the 2022 suspension.
Abstract
This article critically examines the transition of India’s sedition law from Section 124A of the Indian Penal Code, 1860, to Section 152 of the Bharatiya Nyaya Sanhita, 2023, against the backdrop of the constitutional tension between free speech under Article 19(1)(a) and the State’s interest in sovereignty and public order under Article 19(2). It traces the doctrinal foundation laid in Kedar Nath Singh v. State of Bihar, which upheld sedition’s constitutionality but confined it to speech inciting violence or public disorder, and evaluates the Supreme Court’s landmark 2022 suspension of Section 124A in S.G. Vombatkere v. Union of India. The article then undertakes a textual and structural comparison between the repealed provision and its BNS successor, arguing that while the removal of the word “disaffection” and express reference to “Government” marks a symbolic departure, the retained vagueness surrounding terms such as “subversive activities” and “separatist activities” perpetuates the same overbreadthconcerns that animated the Vombatkere litigation. It concludes that genuine reform requires either an authoritative judicial reading-down of Section 152 BNS along Kedar Nath Singh lines, incorporating an explicit incitement-to-violence threshold, or fresh legislative clarification — failing which the chilling effect on political speech, journalism, and dissent is likely to persist under a new statutory label.
Case Laws
• Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955 — a Constitution Bench upheld the constitutionality of Section 124A IPC but read it down to apply only to speech having the tendency to incite violence or create public disorder, distinguishing mere criticism of the Government (however strong) from sedition proper; this remains the controlling precedent that all subsequent sedition jurisprudence, including the BNS debate, must contend with.
• S.G. Vombatkere v. Union of India, (2022) SCC OnLine SC 609— the Supreme Court, in an interim order, suspended all pending trials, appeals, and proceedings under Section 124A IPC and directed that no fresh FIRs be registered under the provision until the Union completed its promised re-examination of the law, effectively placing sedition prosecutions in abeyance pending final adjudication of the provision’s constitutionality.
• Balwant Singh v. State of Punjab, (1995) 3 SCC 214 — held that the mere raising of slogans, without more, unaccompanied by any element of incitement to violence or public disorder, does not amount to sedition, reinforcing the Kedar Nath Singh threshold at the level of individual conduct rather than organised political activity.
• Shreya Singhal v. Union of India, (2015) 5 SCC 1 — though concerned with Section 66A of the IT Act, this judgment articulated the chilling effect doctrine with particular clarity in the Indian context, holding that vague and overbroad speech-restricting provisions are unconstitutional precisely because they deter protected speech independent of actual prosecution — a principle directly relevant to assessing Section 152 BNS’s undefined terms.
• Vinod Dua v. Union of India, (2021) 4 SCC 322 — applying Kedar Nath Singh, the Supreme Court quashed a sedition FIR against a journalist for criticising the Government’s handling of the COVID-19 pandemic, holding that every citizen has a right to criticise government measures so long as there is no incitement to violence, and reaffirming journalists’ particular vulnerability to sedition-related chilling effects.
• Common Cause v. Union of India, (2016) 15 SCC 269 — directed that all authorities be bound by the Kedar Nath Singh principles while registering FIRs and initiating proceedings under Section 124A, reflecting judicial concern over the gap between the narrow judicial reading of sedition and its far broader practical invocation by police authorities.
Conclusion
The passage from Section 124A IPC to Section 152 BNS marks a legislative moment of genuine significance, but not necessarily one of genuine liberalisation. The formal repeal of the word “sedition” and the explicit removal of “disaffection towards the Government” from the statute book respond to decades of criticism and to the Supreme Court’s own unprecedented suspension of the provision in S.G. Vombatkere. Yet the substantive core of the offence — criminalising speech capable of “exciting” secessionist or subversive sentiment, defined through equally elastic language — survives largely intact, and in some respects (explicit coverage of electronic communication, enhanced minimum sentencing) has expanded. Absent a definitive Supreme Court ruling reading an explicit incitement-to-violence threshold into Section 152 BNS, on the model of Kedar Nath Singh and Balwant Singh, the risk is that India will have changed the name of its sedition law without changing its chilling consequences for journalists, students, and political dissenters. The pending constitutional challenge to Section 124A, and any future challenge to its successor, therefore remains the decisive forum in which the true test of this legislative transition will be settled — not in the statute book, but in the courtroom.
FAQ
Q. Has sedition been completely abolished in India?
A. Not entirely. Section 124A IPC has been repealed, but Section 152 of the Bharatiya Nyaya Sanhita, 2023, now criminalises acts exciting secession, armed rebellion, or subversive or separatist activities, and endangering sovereignty or unity and integrity — covering much of the same ground under different terminology.
Q. What did the Supreme Court decide in Kedar Nath Singh?
A. It upheld the constitutional validity of Section 124A IPC but confined its application to speech having a tendency to incite violence or cause public disorder, holding that mere criticism of the Government, however vigorous, does not amount to sedition.
Q. What was the effect of the S.G. Vombatkere order?
A. The Supreme Court directed, by way of an interim order in 2022, that no new FIRs be registered and that pending sedition trials and proceedings under Section 124A IPC be kept in abeyance until the Union completed its promised reconsideration of the provision, effectively freezing sedition prosecutions.
Q. Is Section 152 BNS legally identical to the old sedition law?
A. Not identical in text — it removes references to “the Government established by law” and “disaffection” — but critics argue its undefined terms such as “subversive activities” retain comparable vagueness and overbreadth, meaning the chilling effect associated with the old provision may persist in practice.
Q. Does Section 152 BNS apply to online speech?
A. Yes, the provision explicitly extends to electronic communication, meaning social media posts, articles, and other digital expression fall squarely within its scope, arguably widening its practical reach compared to the pre-digital drafting of Section 124A.
Q. What safeguard would meaningfully address the chilling effect concern?
A. A definitive judicial reading of Section 152 BNS incorporating an explicit incitement-to-violence or public-disorder threshold, consistent with Kedar Nath Singh and Balwant Singh, would confine the provision’s application and reduce the risk of its use against legitimate criticism, journalism, and dissent.
