ABSTRACT
With the introduction of the Bharatiya Nyaya Sanhita (BNS), 2023, India replaced the colonial-era Indian Penal Code (IPC), 1860. One of the most debated changes was the removal of the offence of sedition under Section 124A of the IPC. In its place, the legislature introduced Section 152 of the BNS, which makes it an offence to engage in acts that threaten the sovereignty, unity, and integrity of India.
The Government has presented this change as an important step towards removing colonial laws that were once used by the British to silence freedom fighters and suppress public dissent. However, many legal experts, constitutional scholars, and civil rights activists have raised serious concerns about the new provision. They argue that although the name “sedition” has been removed, the new law is wider in scope, uses vague expressions that can be interpreted differently, and provides for stricter punishment. As a result, there is concern that it may continue to affect the fundamental right to freedom of speech and expression.
This article examines Section 152 of the BNS in detail. It explains the background of the provision, its purpose, and how it differs from the earlier law on sedition under Section 124A of the IPC. The article also studies whether Section 152 is consistent with the constitutional guarantee of free speech under Article 19(1)(a) and the reasonable restrictions permitted under Article 19(2) of the Constitution of India.
To understand the legal position, the article discusses important judicial decisions such as Kedar Nath Singh v. State of Bihar and S.G. Vombatkere v. Union of India, which have played a significant role in shaping the law relating to sedition and free speech. It also looks at practical situations involving protest speech, including online campaigns, farmers’ protests, and peaceful public demonstrations, to examine how Section 152 may operate in real-life situations.
Finally, the article evaluates whether Section 152 truly reflects the goal of removing colonial-era laws or whether it simply introduces a new legal provision that may continue to give the State broad powers to restrict dissent in the name of protecting national security.
INTRODUCTION
A stable and sovereign State is the foundation of every civilized society. Laws, fundamental rights, and democracy can function only when the nation itself remains secure. The political philosopher Thomas Hobbes argued that without a strong sovereign to maintain order, society would fall into chaos where life becomes “solitary, poor, nasty, brutish, and short.” This idea continues to hold relevance even today. No Constitution requires a nation to tolerate activities that threaten its own existence or territorial integrity.
Since Independence, India has faced several challenges to its sovereignty. These include cross-border terrorism, armed insurgencies, separatist movements, and other attempts to weaken the unity of the country. While India guarantees freedom of speech under the Constitution, that freedom cannot be interpreted as a licence to encourage secession, violence, or activities that endanger the nation. Protecting national security is one of the primary responsibilities of every sovereign State.
For more than 150 years, the law dealing with acts against the State was Section 124A of the Indian Penal Code, 1860, commonly known as the law of sedition. However, this provision was introduced by the British colonial government to protect its own rule rather than the interests of the Indian people. It criminalised attempts to create hatred, contempt, or disaffection against the Government established by law. The focus of the provision was loyalty to the ruling government instead of protecting the sovereignty and integrity of an independent Indian nation. Because of its colonial origin and repeated misuse during the freedom struggle, Section 124A remained one of the most controversial provisions of the IPC.
The Bharatiya Nyaya Sanhita (BNS), 2023, which came into force on 1 July 2024, marked a significant step in India’s effort to remove colonial-era criminal laws. Parliament repealed Section 124A and introduced Section 152, titled “Act Endangering Sovereignty, Unity and Integrity of India.” This is not merely a change in numbering or wording. It reflects a clear shift in legislative thinking. Instead of protecting the government from criticism, the new provision seeks to protect the sovereignty, unity, and territorial integrity of India.
A democratic nation must never confuse criticism of government policies with activities that threaten the existence of the nation itself. Citizens have every right to question those in power, oppose government decisions, and participate in peaceful protests. However, no democracy is expected to remain silent when individuals or organisations actively promote secession, armed rebellion, or the disintegration of the country. Protecting the nation and protecting democracy are not opposing goals; they complement each other.
Despite this shift, Section 152 has attracted strong criticism from several constitutional scholars, civil liberties groups, and commentators. Many argue that the new provision is simply sedition under a different name and gives the State wider powers than before. According to this view, the language of Section 152 is broad enough to discourage democratic protest and political dissent.
This criticism, however, overlooks an important constitutional distinction. Peaceful criticism of the government and activities aimed at weakening the sovereignty and unity of India are not the same. Opposing the policies of an elected government is part of democracy, but encouraging secession, supporting armed rebellion, or promoting the break-up of the nation goes far beyond legitimate political expression. Treating these two entirely different situations as identical ignores both constitutional principles and the security challenges faced by modern States.
This paper examines Section 152 of the Bharatiya Nyaya Sanhita from a constitutional and state-centric perspective. It argues that the provision is a necessary legal safeguard for protecting India’s sovereignty and territorial integrity. At the same time, it analyses whether the provision contains sufficient legal safeguards to ensure that genuine political criticism, peaceful protests, and democratic debate remain protected under the Constitution.
BACKGROUND & LEGISLATIVE FRAMEWORK
To fully comprehend the constitutional imperative and legal advance represented by Section 152 of the BNS, one must examine the statutory ancestry, judicial history, and political philosophy that characterized the old law of Sedition under Section 124A IPC.
The Colonial Origin and Flaws of Section 124A of the Indian Penal Code
Section 124A was added to the Indian Penal Code in 1870, nearly ten years after the IPC came into force. Its introduction was not accidental. During that period, the British government was facing growing opposition from freedom fighters, social reformers, and people speaking against colonial rule. To deal with this rising resistance, the British introduced a specific criminal provision that could be used to silence voices challenging their authority.
The wording of Section 124A clearly shows its colonial purpose. Instead of targeting acts that actually threatened the safety or sovereignty of the country, the provision focused on whether a person had created feelings of “hatred,” “contempt,” or “disaffection” towards the Government established by law.
Section 124A, Indian Penal Code, 1860 (Repealed)
“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life…”
Explanation 1: The expression “disaffection” includes disloyalty and all feelings of enmity.
The most controversial part of this provision was the word “disaffection.” The law never gave it a precise meaning, making it broad enough to cover almost any criticism of the colonial government. As a result, the British authorities used Section 124A not only against those who encouraged violence but also against people who simply questioned or criticised colonial policies. The law became a powerful tool for suppressing political opposition rather than protecting public order.
Many of India’s greatest freedom fighters were prosecuted under this provision. Leaders such as Lokmanya Bal Gangadhar Tilak, Mahatma Gandhi, and Vinayak Damodar Savarkar faced criminal proceedings because they openly challenged British rule and inspired people to demand independence. Their prosecution demonstrates that Section 124A was used less as a law to protect society and more as an instrument to preserve colonial power.
During his famous sedition trial in 1922, Mahatma Gandhi strongly criticised Section 124A and described it as the “prince among the political sections of the Indian Penal Code designed to suppress the liberty of the citizen.” His words reflected the true character of the provision. Rather than protecting the nation, Section 124A was designed to protect a foreign government from criticism and to silence the growing demand for India’s freedom.
Constitutional Evolution and the Difference Between the Federal Court and the Privy Council
Before India became independent, there was no clear judicial agreement on how the law of sedition should be interpreted. Two of the highest courts at that time—the Privy Council and the Federal Court—took completely different views. This difference later became one of the most important debates in Indian constitutional law.
The Broad Colonial Approach – Privy Council
In King-Emperor v. Sadashiv Narayan Bhalerao (1947) , the Privy Council adopted a very broad interpretation of Section 124A. It held that the prosecution did not have to prove that the speech had caused violence or public disorder. According to the Privy Council, it was enough if the words created feelings of hatred, contempt, or disaffection against the Government established by law. This interpretation gave the colonial administration wide powers to prosecute people even when there was no real threat to public peace.
The Narrow Approach – Federal Court
A different view was taken by the Federal Court in Niharendu Dutt Majumdar v. Emperor (1942) . Chief Justice Sir Maurice Gwyer held that sedition could not be established merely because someone criticised the government. He stated that there must be public disorder or at least a reasonable possibility that the speech would lead to public disorder. In his well-known observation, he said that “public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence.” This interpretation recognised that criticism of the government should not automatically become a criminal offence unless it posed a real danger to public order.
When the Constitution of India came into force in 1950, the Constituent Assembly deliberately chose not to include the word “sedition” among the reasonable restrictions on freedom of speech under Article 19(2). During the debates, K.M. Munshi strongly argued that in a democratic republic, criticism of the government should never be treated as an offence against the nation. His view reflected the belief that citizens must be free to question those in power without the fear of criminal prosecution. Even so, Section 124A continued to remain in force because Article 372 of the Constitution allowed pre-Constitution laws to continue unless they were repealed or declared unconstitutional.
The constitutional validity of Section 124A was finally examined by the Supreme Court in Kedar Nath Singh v. State of Bihar (1962) . The Court upheld the provision but gave it a much narrower interpretation to ensure that it remained consistent with the guarantee of free speech under Article 19(1)(a). It held that the law could be applied only where the speech or expression incited violence or had a clear tendency to create public disorder. The Court also made an important distinction between speech that merely criticises government policies and speech that encourages violence or threatens public peace. According to the Court, strong criticism of the government, however harsh, would not amount to sedition unless it crossed that constitutional limit.
Although the judgment in Kedar Nath Singh significantly restricted the scope of Section 124A, problems continued in practice. Police authorities often invoked the provision against political opponents, journalists, activists, students, and protesters even when their actions had no connection with violence or any threat to the sovereignty or territorial integrity of India. In many cases, the process itself became the punishment, despite the absence of evidence satisfying the legal test laid down by the Supreme Court.
These repeated instances of misuse eventually led to the Supreme Court’s important interim order in S.G. Vombatkere v. Union of India (2022) . Recognising the growing concerns regarding the continued use of Section 124A, the Court directed that the provision should remain in abeyance until the Central Government reconsidered and reviewed the law. This order marked a significant turning point in the history of sedition law and ultimately paved the way for Parliament to repeal Section 124A and replace it with Section 152 of the Bharatiya Nyaya Sanhita, 2023.
The Modern Legislative Answer: Section 152 BNS
Responding to judicial directions, civil society expectations, and the urgent security need to protect national unity against 21st-century threats, Parliament repealed the IPC and enacted Section 152 of the Bharatiya Nyaya Sanhita, 2023. Section 152 completely abandons the vocabulary of “disaffection,” “contempt,” and “hatred toward the Government.” Instead, it grounds the offense in concrete, objective actions that target the foundational integrity of the Indian nation-state.
SECTION 152, BHARATIYA NYAYA SANHITA (2023)
“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 means, 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 or commits any such act shall be punished with imprisonment for life or with imprisonment of either description 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.
Comparative Analysis of Section 124A IPC and Section 152 BNS
A comparison between the repealed Section 124A of the Indian Penal Code and the newly enacted Section 152 of the Bharatiya Nyaya Sanhita shows that the focus of the law has changed significantly. Under Section 124A, the primary object of protection was the “Government established by law,” meaning that the law mainly protected the ruling government from public disaffection. In contrast, Section 152 shifts the focus to protecting the sovereignty, unity, and integrity of India, thereby placing the emphasis on safeguarding the nation rather than the government of the day.
Another important difference lies in the nature of the prohibited conduct. Section 124A was based largely on subjective feelings such as hatred, contempt, disaffection, and disloyalty towards the government. Section 152, on the other hand, is directed at specific acts that threaten the nation, including secession, armed rebellion, and other subversive or separatist activities.
The two provisions also differ in their treatment of criminal intent. Section 124A did not clearly define the required mental element, leaving it open to broad interpretation based on the tendency of speech to create disaffection. In contrast, Section 152 expressly requires that the prohibited act must be committed purposely or knowingly, thereby introducing a clearer standard for establishing criminal liability.
The scope of communication covered under the two laws has also changed. Section 124A mainly referred to traditional forms of expression, such as spoken or written words, signs, and visible representations. Section 152 expands its reach by specifically including electronic communication and even the use of financial means to support activities that threaten the sovereignty, unity, and integrity of India, reflecting the realities of modern technology and digital communication.
Finally, the protection available for legitimate criticism is different under the two provisions. Although Section 124A contained explanations stating that lawful criticism of the government was not an offence, these safeguards were often ignored in practice. Section 152 attempts to draw a clearer distinction by expressly protecting lawful criticism or disapproval of government actions, while continuing to criminalise acts that genuinely endanger the sovereignty, unity, and integrity of the nation.
This comparison suggests that Parliament intended to shift the focus from protecting the government against criticism to protecting the State against activities that threaten its existence, while recognising that peaceful criticism of government policies remains a legitimate part of a democratic society.
MAIN ANALYSIS & CASE STUDIES
A critical evaluation of Section 152 BNS requires analyzing its constituent elements, assessing its constitutional alignment under Article 19(2), and examining contemporary operational scenarios through real-world case studies.
Legal Architecture of Section 152: Key Features of the Provision
Section 152 of the Bharatiya Nyaya Sanhita, 2023 introduces several important changes compared to the old law of sedition under Section 124A of the Indian Penal Code. These changes aim to clearly define criminal liability and reduce the possibility of misuse. Four major features of the provision are discussed below.
1. Clear Requirement of Criminal Intention (“Purposely or Knowingly”) : One of the most significant changes in Section 152 is that it clearly requires the accused to act “purposely or knowingly.” Unlike Section 124A of the IPC, which did not clearly mention the mental element required for the offence, Section 152 makes criminal intention an essential part of the offence.
This means that a person cannot be punished merely because of a careless statement, an emotional speech made during a political rally, or by simply forwarding controversial content on social media without intending to threaten the sovereignty or integrity of India. To secure a conviction, the prosecution must prove beyond reasonable doubt that the accused intentionally or knowingly committed an act that could promote secession, armed rebellion, or other activities threatening the unity and integrity of the country. This higher standard of proof is intended to ensure that only serious offences are punished.
2. Shift from Protecting the Government to Protecting the Nation: Another major change is that Section 152 no longer protects the “Government established by law,” as Section 124A did. Instead, it protects the “sovereignty, unity and integrity of India.” This is an important constitutional shift.
In a democracy, governments are elected for a fixed term and can be changed through elections. The State, however, is permanent and represents the sovereignty, territorial integrity, and constitutional identity of the nation. Therefore, criticising the Prime Minister, questioning government policies, opposing a political party, or protesting against a law does not by itself attract Section 152. The provision comes into operation only when an act is directed against the sovereignty, unity, or territorial integrity of India.
3. Recognition of Modern Methods of Threatening National Security : Section 152 also recognises that threats to national security are no longer limited to public speeches or printed material. In today’s digital age, activities affecting national security may take place through social media platforms, encrypted messaging applications, online propaganda, foreign funding, or other electronic methods.
For this reason, the provision specifically includes electronic communication and the use of financial means within its scope. This enables investigating agencies to take action against individuals or organisations that use digital platforms or financial networks to support secession, terrorism, or other activities aimed at weakening the sovereignty and integrity of India. Supporters of the provision argue that this makes the law better suited to deal with modern forms of security threats.
4. Protection for Lawful Criticism and Democratic Protest : Section 152 also contains an important safeguard to protect freedom of speech. The Explanation attached to the provision clearly states that expressing criticism or disapproval of government policies, decisions, or administrative actions through lawful means does not amount to an offence.
This safeguard recognises that in a democratic country, citizens have the right to question government decisions, participate in peaceful protests, and demand changes in the law. Journalists, opposition parties, social activists, and ordinary citizens remain free to express their views, provided their actions do not encourage secession, armed rebellion, or activities that threaten the sovereignty, unity, and integrity of India. In this way, the Explanation seeks to maintain a balance between protecting national security and preserving the constitutional guarantee of free speech under Article 19(1)(a).
CRITICAL ANALYSIS AND EVALUATION
To fully evaluate the legitimacy of Section 152 BNS, it must be examined through the lens of Indian constitutional Jurisprudence, international human rights benchmarks, and contemporary national security imperatives.
Constitutional Compatibility: Article 19(1)(a) and Reasonable Restrictions under
Article 19(2)
The core constitutional challenge leveled against Section 152 by civil libertarians is that its terms—specifically “subversive activities” and “separatist activities”—are unconstitutionally vague and exert a “chilling effect” on free speech guaranteed under Article 19(1)(a). This argument, however, fails to survive rigorous scrutiny under Article 19(2). Article 19(2) of the Constitution of India explicitly empowers the Parliament to enact laws imposing “reasonable restrictions” on the exercise of free speech in the interests of eight specific heads, chief among them being:
• The Sovereignty and Integrity of India (inserted via the 16th Constitutional Amendment Act, 1963);
• The Security of the State;
• Public Order; and
• Incitement to an offense.
It is crucial to note that the phrase “Sovereignty and Integrity of India” was solemnly added to Article 19(2) precisely to equip the Indian Union with the constitutional authority to penalize secessionist demands, regional balkanization movements, and subversion. The wording of Section 152 BNS mirrors the language of Article 19(2) with meticulous precision. By aligning the statutory offense directly with the constitutionally recognized heads of restriction, Parliament ensured that Section 152 rests on firm constitutional ground.
Furthermore, the legal doctrine of Noscitur a Sociis (a word is known by the company it keeps) applies directly to the interpretation of Section 152. The term “subversive activities” does not exist in isolation; it appears alongside “secession,” “armed rebellion,” and “separatist activities.” Under established rules of statutory interpretation, “subversive activities” must be construed to mean actions of a severity comparable to secession and armed rebellion —namely, actions that seek to overthrow the constitutional order through force, illegal means, or clandestine violence. It cannot be expanded by executive fiat to include peaceful political opposition or journalistic criticism.
CONCLUSION
The introduction of Section 152 of the Bharatiya Nyaya Sanhita, 2023 marks an important change in India’s criminal law. By repealing Section 124A of the Indian Penal Code, Parliament removed a colonial-era provision that focused on punishing disaffection against the government. In its place, Section 152 shifts the focus to protecting the sovereignty, unity, and integrity of India.
Although some critics view Section 152 as a new form of sedition, the provision is designed to distinguish between legitimate criticism of the government and acts that threaten the security and integrity of the nation. The requirement of acting “purposely or knowingly,” the inclusion of modern forms of communication and financial support, and the Explanation protecting lawful criticism are intended to ensure that peaceful protest and democratic dissent remain protected.
Freedom of speech is a cornerstone of democracy, but it must exist alongside the need to safeguard the nation’s sovereignty and constitutional order. In the present security environment, Section 152 seeks to strike a balance between protecting national security and preserving constitutional freedoms. Whether this balance is maintained in practice will ultimately depend on its fair and responsible implementation by law enforcement agencies and the courts.
