Section 152 of the Bharatiya Nyaya Sanhita as Maintaining a Logic of Power

*Abhinav Ravi

Introduction

Free speech is a value that is afforded constitutional protection in India. However, Article 19 (1) of the Indian Constitution does not expressly state its purposes. In order to determine the scope of free speech rights and circumstances in which its curtailment may be warranted, it is necessary to determine the role that the right is intended to perform, and the interests that it is intended to secure.

This article is an attempt to locate the idea of sedition law in the interaction of these competing interests. It compares the logic underpinning the erstwhile law on sedition under section 124A of the Indian Penal Code, 1860 (“IPC”) with that underlying the law replacing sedition, under section 152 of the Bharatiya Nyaya Sanhita, 2023 (“BNS”). It argues that despite the promotion of these laws under the rhetoric of decolonisation, the logic informing the two laws is the same. It attempts to provide a conceptual framework for a normative assessment of the new law.  

Why Protect Free Speech?

The theory of the First Amendment of the United States Constitution is instructive to understand the purpose sought to be achieved by the constitutional protection of speech. Robert Post rejects a series of dominant justifications of free speech, and provides a more plausible account in the form of his ‘political’ justification. On this account, public discourse is the channel through which a ‘public opinion’ is formulated, and it is through the public opinion that we govern ourselves. Therefore, it is necessary that public discourse is protected from state interference, and the opinion formulated through public discourse would, ideally, effectively restrain the exercise of state power.

In a similar vein, other deliberative democrats argue that free speech is valuable because it is constitutive of democracies. The exercise of franchise is, in this sense, the participation in a process that is characterised by its commitment to free and open deliberation. This is the perspective on free speech that will be adopted over the course of this article. 

Taking a different approach towards free speech, Matthew Kramer argues that an ethically robust system of governance would avert harmful speech by creating social conditions that furnish a culture of mutual respect among its citizenry. If the state fails to inculcate such an ethos in the population, then it might well be pushed to ban some forms of speech in response to certain kinds of communication. To Kramer, therefore, the measure of healthy governance lies in the ability of the governance to sustain an approach of self-restraint that constitutes free speech. 

The Law on Sedition

Before 1962, the law on sedition under section 124A of the IPC had been variously interpreted by several courts, and its constitutionality was contested. Finally, in Kedar Nath Singh v State of Bihar, the Supreme Court upheld the constitutional validity of the provision, although reading it down to hold that criticism of the government does not amount to sedition unless it is accompanied by an incitement to, or call for, violence. It is interesting that in trying to save the constitutionality of the provision, the court interpreted the law under section 124A of the IPC to mean something that the provision does not indicate at all. More recently, the Supreme Court kept all pending proceedings regarding to section 124A of the IPC in abeyance while allowing the central government to reconsider the law. 

However, the law on sedition has been contested as much for its application as it has been for its content. Between 2014 and 2020, there was a twenty-eight percent increase in the number of cases registered under section 124A. A significant number of cases were filed around protests against the Citizenship Amendment Act and the Farm Bills. Moreover, several cases of sedition were also filed against persons for ‘celebrating’ India’s loss to Pakistan in cricket matches in 2014, 2017, and 2021. Cases were also registered against some persons who raised concerns about the lack of ventilators and the condition of migrant labourers during the COVID-19 pandemic. 

The Law Replacing Sedition

The law that replaces sedition has been hailed by the Home Minister, who also condemned the erstwhile law on sedition for being “colonial” and “draconian”. The Home Minister stated that under the new law, anybody can criticise the government. It is worth investigating whether the law that replaces sedition does any better with respecting the purposes of the constitutional protection of speech and expression.

Section 152 of the BNS replaces the erstwhile provision on sedition. Section 152 criminalises (effectively) anything that excites or attempts to excite secession, armed rebellion, or ‘subversive activities’ or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India, or the indulgence in, or commission of ‘any such act’. The word ‘subversive’ is defined as that which tends to weaken or destroy an established political system, organisation, or authority. 

If such an interpretation is ascribed to the word, the provision could potentially be used to curtail legitimate dissent or protest against the government. The provision has also been criticised for its failure to delineate a specific entity against which harm may be done (perhaps rendering it even more ambiguous than the provision on sedition), for its failure to specify actions that constitute the offence, and for lowering the threshold of harm.

Deliberative Democracy and the New Law

The new provision, with its broad import and ambiguous phraseology, appears to advance the same logic as the erstwhile law on sedition. Section 152 of the BNS, like Section 124A of the IPC, perceives the dissenting citizen as a threat to the existence of the State or nation. The new law, in this sense, appears to retain the perception of the citizen that was also present in the law on sedition. 

Moreover, a large issue with the law on sedition, as discussed above, was its use as a political weapon. Dissenters against government policy and protested against laws such as the Citizenship Amendment Act or the farm bills were targeted by the ruling dispensation through the use of the law. The law on sedition was not ‘draconian’ only for its substance, but also for its use in the pursuit of the political objectives of the state. The new law appears to do little to change that. 

In this context, it is useful to consider Kramer’s argument noted earlier. Mathew Kramer argued that it is the responsibility of the state to create social conditions under which undesirable forms of speech do not arise. A law such as section 152 of the BNS signifies a failure in this regard. It also displays a willingness on the part of the State to prioritise the criminalisation of certain forms of speech, rather than the promotion of social conditions where these forms of speech do not arise. 

It might be helpful to consider the reasons for these priorities, because the criminalisation of actions is a much more convenient way for the state to pursue its political objectives. In the context of the criminal policy, Garland argues that the state is cognizant of its inability to lower crime rates through criminal policies. It therefore chooses to publicly rationalise crime-control policies as having a deterrent effect. In other words, the criminal law is an expressive effort by the state to appear as if it is meaningfully affecting crime rates.    

Drawing from Garland, it may be said in the case of section 152 of the BNS that the state is perhaps cognizant of the limits in its capacities to effectively foster an environment of mutual respect in its citizenry. Garland’s formulation of the criminal law as an expressive effort allows an understanding of this law as the state’s attempt to dispel public anxiety, and to appear proactive in its efforts to combat harmful speech. The provision, however, is tailored to enable the state to pursue its political objectives, and is likely to be used to curtail dissent in the same manner as the law it replaces. 

The criticism of the new law based on Postian theory of deliberative democracies should be fairly obvious at this point. Since speech is constitutive of democracies, in that it facilitates the creation of a public opinion through which we govern ourselves, it is necessary that we be allowed to engage in speech and expression without fear of an adverse political reaction. However, the new law, as argued in this article, appears not to recognise this important value of speech and expression. In potentially criminalising speech that makes legitimate criticism of the government, the new law affects our ability to engage in deliberative processes and participate in the creation of a public opinion through which we may govern ourselves. 

Conclusion

Over the course of this article, it has been argued that the law replacing sedition fails to recognise the value of speech in the creation of a public opinion which enables self-governance. It continues a perception of the dissenting citizen as being a potential threat to the existence of the nation. Further, it is argued that through the enactment of the new law, the State appears to privilege its interests and the pursuit of its political objectives over furnishing social conditions of mutual respect which would obviate even the alleged necessity for such a law. 

*Abhinav Ravi is a third-year law student pursuing a B.A. LL.B Hons. at the National Law University, Delhi.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.