Supreme Court seeks government’s reply on plea against BNS ‘sedition’ section

THe sublime margaret court on fri sought-after(a) the Centre’s response on a petition thought-provoking the constitutional validity of section 152 of the Bharatiya Nyaya Sanhita (BNS), which replaced the offence of sedition punishable under section 124A of the Indian Penal Code (IPC).A bench headed by Chief Justice of India (CJI) Bhushan R Gavai and comprising justices K Vinod Chandran and NV Anjaria further directed the petition to be tagged with a pending batch of cases where the validity of the erstwhile section 124A is already under challenge.The petition filed by retired Army officer SG Vombatkere, a Vishisht Seva Medal winner, described the new provision as nothing but a “repackaged” sedition law, reintroducing section 124A under a new nomenclature.Appearing for the petitioner, senior advocate PB Suresh along with advocate S Prasanna pointed out that though the language of the new provision has been altered a bit, its substantive content which seeks to criminalise vague and broad categories of speech and expression makes the provision arbitrary and discriminatory, and hence unconstitutional.Incidentally, Vombatkere had challenged the earlier provision of section 124A, and it was on his plea among a batch of petitions, the top court in May 2022 directed all proceedings related to sedition to be kept in abeyance.The petition demonstrated how section 152 criminalises a wide spectrum of expressive conduct, including those who “purposely or knowingly” use words — in spoken, written, electronic, symbolic, or financial forms — to “excite or attempt to excite” secession, rebellion, or subversive activities. It said that such sweeping language fails the test of constitutional validity for being vague and broad and that they could have a “chilling effect” on free speech.It further questioned the undefined terms such as “endangering”, “sovereignty”, “unity”, and “integrity” found in the title of the provision that forms the basis for punishing acts ranging from actual incitement to mere expression of critical or dissenting political opinions. “The title itself prejudges and colours the conduct described in the provision as one that “endangers” national integrity, without requiring any proof of such actual consequence,” the petition said. Objecting to such legal architecture, the plea said, “The title invites prosecutorial and police discretion, leading to arbitrary and discriminatory application, especially against dissenters, minorities, journalists, and civil society actors.”The 79-year old petitioner also challenged the provision for endangering sovereignty or integrity by “use of financial means”, which is undefined. “This may criminalise legitimate financial contributions, fundraising, or donations, even when unrelated to any unlawful act. The catch-all phrase ‘or otherwise’ renders the scope of the section limitless, in violation of the rule of law,” it added.“Penal laws must meet the constitutional requirement of clarity and foreseeability. The use of such indeterminate terms violates the principle of legality and has a chilling effect on constitutionally protected speech,” Vombatkere said.Similar arguments were raised by petitioners in questioning the continuance of section 124A which made the top court convinced that the validity of the provision needs to be examined. While passing the order to stay all pending trials concerning section 124A, a three-judge bench headed by the then CJI NV Ramana was inclined to refer the matter to a larger bench.This was necessary as the top court in a 1962 judgment in Kedarnath Singh v State of Bihar had upheld the validity of sedition offence. However, the Centre told the court that the Parliament is in the process of bringing a new law to replace IPC.Even as the legislative exercise was underway, the batch of petitions came up for hearing from time to time in the top court. On September 12, 2023, a three-judge bench headed by the then CJI Dhananjaya Y Chandrachud referred the matter to a larger bench having a minimum of five judges. The BNS which replaces IPC, came to be enacted by Parliament in December 2023 and was put into effect from July 1, 2024.