Recently the Sansad passed three new extremely significant bills followed by the President's assent. These new laws — the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Act — will replace The Indian Penal Code (IPC), The Code of Criminal Procedure (CrPC) and The Indian Evidence Act respectively.
Here the Bharatiya Nyay Sanhita (BNS) has been part of a concerning debate on allegedly reserving the IPC provision on sedition. Sedition (Raajdroh) in layman's language means such actions which encourage people to act against the government. It formed part of the IPC under Section 124A and has been heavily misused by almost every party in power. Section 152 of the new BNS is said to be a copy-paste with some mere tweaks.
152. 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 mean, 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 in or commits any such act shall be punished with imprisonment for life or with imprisonment which may extend to seven years, and shall also be liable to fine.— Section 152 of the new Bharatiya Nyay Sanhita (BNS)
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.
124A. Sedition.—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, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
— Section 124A of The Indian Penal Code (IPC)
Thus, the following discussion has arisen from a curiosity petition, jointly initiated by Siddhant Sharma and Hritam Saha, the key members of The Drain sat to have a discussion and deliberation on this very subject trying to explore Section 152 of the new BNS in comparison with Section 124 of the old IPC.
The minutes of the discussion are set out hereunder.
Siddhant Sharma
Siddhant has pointed out that the law of sedition as applicable to Bharat was brought by the Britishers to curb the fire of our freedom struggle. Therefore, with the departure of the Britishers and strictly speaking, with the expiration of the freedom struggle, Section 124A of the now-replaced IPC should have been scrapped. He pointed out that, in 2009, the UK scrapped its sedition law, however, we continued to use the same.He argues that sedition has been used by every political party in power to make Bharat less opposition-friendly. A law which intended to crush disaffection towards the Videshis (non-natives) was now being used to silence the voices of the Desis (natives).
He points out that the words 'purposely' and 'knowingly' have been incorporated in the new Section 152 which were absent in the old Section 124A, meaning under the new provision, one should have a conscious motive to commit seditious activities to get punished, which was not the case earlier in the plain reading of the provisions.
He says that the expressions — 'brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government' — have been deleted from the substantive portion of the new Section 152, which expressions were present under the old Section 124A, meaning thereby, that criticism of the government is allowed and not punished under the new provisions.
Siddhant also points out that the specific words— 'secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India', are incorporated under new Section 152 for categorizing the acts that would fall within the purview of new Section 152, meaning thereby, that specificity has been stressed upon so that the abuse, as was done, is substantially curbed by and under the new law.
He points out that the new Section 152 borrows words and intent from Article 352 of the Constitution which, inter alia, says that 'armed rebellion' may be a cause for invoking a national emergency.
He therefore based on this comparative analysis argues that now the new Section 152 can only be evoked in case of a threat to the nation but not in case of a threat to the power of the rulers.
Hritam Saha
Hritam has referred to the explanation, attached to the new Section 152 and made it read with the words— 'subversive activities' and put to Siddhant the question of whether the relic of the old sedition law still breathes/breeds through the said explanation and the said words.He pointed out that the old Section 124A used to have the explanation, which now stands incorporated under the new Section 152, meaning thereby that the State now hereafter tacitly/with cute legal silence, wants to convey that disaffection, which one may unintentionally show while criticizing the government, continues to be punished.
He has stressed the words— 'subversive activities', making a fervent attempt to show that the said words are of wide amplitude, and when the same is read with the explanation, which he terms as an explanation of the apprehension of the ruling party that people may criticize, will make it clear that if the government had removed its criticism from the scope of the new Section 152, there would not have arisen any necessity to attach such an explanation.
Hritam argues that an explanation of a Section is necessitated when the substantive portion of the Section is incomplete or does not convey the full and final intention of the legislature. He has said that the category of acts, which the new Section 152 punishes, does not need any explanation as such acts unambiguously punish a person of national threat in terms of much larger ramifications, which would exclude mere criticism of the government, therefore, the incorporation of the said explanation is debatable.
He has finally argued that the explanation contains the relic of our old sedition law.
Siddhant Again
Siddhant has argued that although Hritam is right in saying that the words— 'subversive activities', are of wide amplitude, the inclusion of such words is necessary because some actions may not be defamatory but inflammatory indeed. Therefore Siddhant says that good administrative discretion of the selected executives, led by the politically elected executive, checked by the faithful discretion of the courts would indeed control the abuse of the words— 'subversive activities', and therefore there is no apprehension at all.The Collective View Of The Drain
We note Siddhant's argument, which is that the inclusion of the words— 'purposely' and 'knowingly' make incontrovertible mens rea the ground for prosecution under the new Section 152, and accordingly, we believe that sufficient safeguards have been made available to the accused to argue that his speech or act was devoid of mens rea, thus, he cannot be punished.We also note the omission of the words— 'bring into hatred or contempt' in the new Section, thereby making it Article 19(1)(a) friendly. Hence, constructive criticism of the govt is allowed. We also accept Siddhant's argument that the inclusion of the words— 'secession or armed rebellion' make the Section applicable only in cases of threat to the nation but not threat to politicians' throne.
However, we also got the benefit of considering a legally attractive/technical proposition from Hritam, who pointed out that the explanation attached to the new section (which perhaps has gone unnoticed by many) is significant. The significance, as pointed out by him, is that similar explanations were previously attached to the old Section 124A, he apprehends that such an explanation has been included for giving life, blood and effect to the words 'subversive activities', as found in the new section. He argues, with technical force, that the new Section 152, at its face, does not contain the word 'disaffection', which was there in the old Section 124A to punish people who were criticizing the State, therefore, he argues Section 152 is as clear as it should be, given that we have Article 19(1)(a). Then, he argues, why the explanation was needed at all to clarify the distinction between disaffection and disapprobation as the new section appears to have removed from its punishing purview— the constructive criticism of the State.
We believe that Hritam has made a point that may not be conclusive but decisive of the fact that Section 152 could be given a hidden meaning/interpretation, which Hritam rightly said that the political party in power can use for its benefit. In the same breath, we also take note of Siddhant's rejoinder, who has partially shared the apprehension of his counterpart but has relied on the righteousness of the three organs of the State, to make the Section abuse-free.
We believe but do not hold that Siddhant's believable and honest arguments have been substantially answered by Hritam's arguments of apprehension, although on technical terms.
We are of the view that Hritam has made a strong case on the potential abuse of the new Section 152, however, such ground cannot be used to strike down any Section, as conferment of wide discretion cannot be a ground for striking down a law, more so when the words 'purposely', 'knowingly' and the aforesaid ommissions and conclusions, as pointed out by Siddhant exist in the new Section to control the same.
The Drain, therefore, would like to form its collective view on the new Section 152 of the Bharatiya Nyay Sanhita after witnessing the realities, as would emerge in the ensuing time. We hope that you benefit from the observations and concerns raised by us, as eternal vigilance is the secret of a sustainable democracy.
Thank you for your comment