Section 152 of BNS should not become a proxy for sedition

/ Editorials, English /

Section 152 of BNS should not become a proxy for sedition

(Source – The Hindu, International Edition – Page No. – 8)

Topic : GS2 – Indian Polity

Context

The Rajasthan High Court, in Tejender Pal Singh v. State of Rajasthan (2024), highlighted concerns over the potential misuse of Section 152 of the BNS to suppress legitimate dissent.

High Court Observations

  • In 2022, the Supreme Court had suspended pending trials under Section 124A of the IPC (sedition) while the government reconsidered the law.
  • Although the BNS does not use the term “sedition,” Section 152 criminalises acts inciting secession, rebellion, subversive activities, and separatism, raising fears of continued misuse under a different label.

Problems with Section 152

  1. Vague Terminology
    1. Section 152 criminalises acts “endangering the sovereignty, unity, and integrity of India,” but does not define what constitutes such endangerment.
    2. This vagueness allows for expansive interpretations by authorities, enabling prosecution for criticism of political or historical figures or controversial opinions.
    3. In a fragmented sociopolitical climate, such a stringent provision without safeguards risks being used to stifle dissent.
  2. Lowered Threshold for Liability
    1. The term “knowingly” in Section 152 lowers the standard for determining liability, especially in the context of social media.
    2. Sharing a post, even without malicious intent, may be sufficient for prosecution if the post could provoke prohibited activities.
    3. This provision does not require prima facie evidence of a causal link between speech and actual consequences, allowing authorities to deprive individuals of liberty without strong justification.
  3. Potential for Abuse
    1. Historical data from the National Crime Records Bureau (NCRB) shows high arrest rates under Section 124A of the IPC but low conviction rates (12 convictions in 548 arrests between 2015-2020).
    2. Section 152 is broader and more ambiguous than Section 124A, increasing the likelihood of misuse and a chilling effect on free speech.

Way Forward

  1. Judiciary’s Role in Balancing Interests
    1. Courts have historically used consequentialist interpretations to balance national interests with free expression, emphasizing the actual impact of speech.
    2. Precedents like Balwant Singh v. State of Punjab (1995), Kedar Nath Singh v. State of Bihar (1962), and Javed Ahmad Hazam v. State of Maharashtra (2024) stress the need for a causal nexus between speech and its consequences.
  2. Guidelines for Enforcement
    1. The Supreme Court should issue clear guidelines defining the boundaries of terms used in Section 152 to prevent abuse, similar to its approach in D.K. Basu v. State of West Bengal.
  3. Encouraging Free Expression
    1. A liberal space for diverse thoughts and criticism is crucial, especially in the age of social media.
    2. The concept of a “marketplace of ideas,” as envisioned by Justice Holmes in Abrams v. United States, should guide enforcement to ensure democratic dialogue and truth.

Conclusion

  • The lack of safeguards in Section 152 increases the risk of its misuse as a sedition proxy.
  • Judicial intervention and clear guidelines are essential to protect free speech while upholding national interests.