INTRODUCTION
The law of sedition is one of the significant penal provisions discussed widely due to its stringent implication. It is one of the oldest penal provisions enacted during colonial era to deprive Indian freedom movements. Even after decades of independence we even follow this provision and widely criticised for its application and demanded for its amendment. In a wide number of cases the constitutional validity of sedition laws was challenged before the apex court and held it to be constitutionally valid as it ensures the constitutional freedom of speech and expression and the necessity of such a provision to ensure stable government. Later on, the apex court itself stressed the necessity to amend such an age-old colonial regulation on sedition. With the newly enacted section 152 of BNS replaced the age-old offence of sedition under 124 A of IPC. The research paper intends to analyse the provision of sedition law under IPC and BNS and to compare these provisions with sedition laws in international jurisdiction.
LAW OF SEDITION IN INDIA
A. Section 124-A IPC
The offence of Sedition is considered as a significant penal provision under offences against state. It is defined under section 124 A of Indian penal code as; whoever by words, either spoken or written or by signs or by visible representation or brings or attempt to bring into hatred or contempt or excites or attempt to excite disaffection towards, the government establishment by law in India.1 From the analysis of this provision, it can be considered as an offence of defamation against the government established by law.
This provision under section 124 A was challenged in many cases before the supreme court defining its clear unconstitutionality as it infringes the inherent fundamental rights under Article 19. But this contention was rejected by supreme court and held this provision to be constitutional. In landmark judgement of Kedar Nath case, the supreme court held that while analysing the provision of section 124 A there seems to be two interpretation and the constitutionally valid view should be applied and held that citizens are free to criticise every action of government but it should be carried out without inciting violence or hatred.2 If it amounts to violence or hatred, it will cause dissatisfaction that ultimately endangers the stability of government. So, such a penal provision is necessary to ensure stable government. Fundamental rights are not absolute they are also subject to reasonable restrictions under Article 19 (2) and hence held provision of Sedition to be constitutionally valid.3
In Balwant Singh and Another v. State of Punjab, the Apex Court ruled that raising slogan during a protest without accompanying any act of violence or intent will not amount to an offence of sedition under section 124-A IPC. On analysing this case we can see that the court intended to strive a balance between freedom of speech under Article 19(1)(a) with those reasonable restrictions under Article 19(2).4
The 279th Law Commission report recommended to hold sedition provision as such with some structural and procedural amendments. The report view that if this provision is repealed it will result in seditious acts against government that will affect stability of power. So, it is necessary to hold such provision with some procedural mandates that can prevent its misuse. The report suggested to enhance minimum punishment to seven years or more and a preliminary inquiry by a police officer of specified rank should be conducted before filing an FIR under Section 124 A.5
In 2021, the constitutional validity of section 124 A was challenged before supreme court in Kishore Chandra Wangkhemcha v. Union of India.6 In this case two journalist who was charged under section 124 A challenged its constitutional validity and argued that provision of sedition violates fundamental rights of freedom of speech and expression under Article 19(1)(a) and also suggest that the offence of sedition does not amount to a reasonable restriction under Artice19 (2). And also contended that the socio-economic condition of India changed drastically as compared to the situation in which decision of Kedarnath case was spelled and enforcement of section 124 A is carried out arbitrarily and creates ambiguity. While considering this case Supreme Court made it clear that the offence of sedition is an age-old penal provision attributed by colonial era and a need raised to repeal such an age-old provision. And recommended Union government to reconsider for repeal of this penal provision.7 And directed the state governments not to register any cases under this provision till any further order issued by the apex court and the persons who are sentenced or under judicial custody for offences under this provision can make applications for bail before the appropriate courts. After the enactment of new penal statute of BNS, 2023 replaced the provision of sedition and introduced section 152 with wider scope.
B. Section 152 BNS, Acts Endangering Sovereignty, Unity and Integrity of India
The Section 152 of BNS, 2023 provides that; 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 imprisonment which may extend to 7 years or fine.8
Section 152 of BNS imparts a penal provision for acts endangering sovereignty, unity and integrity of India. So, anyone with expressed intention by using words, signs or visible representation or through electronic media or by financial means excites or attempting to excite rebellions or any acts that endangers sovereignty, unity or integrity of India shall be guilty for offence under this provision.9
C. Analysis of Section 124-A IPX and Section 152 BNS
Both these provisions come under the category of offence against state. Focuses on those acts that endangers the stability of nation. Section 124-A IPC expressly names it as offence of sedition. The act of offence includes word either spoken or written or by signs or visible representation that amounts to form hatred or contempt or to excite disaffection towards any lawful government in India but Section 152 BNS explicit a broader term of acts that endanger sovereignty, unity and integrity of India. The act of offence under section 152 BNS is almost similar to section 124-A IPC it also contains additional provisions of communication through use of electronic media or by use of any financial means that can excite secession or armed rebellions or subversive activities that endangers sovereignty, unity or integrity of India. Section 152 BNS can be considered as an expanded provision of section 124-A IPC.
The section 124-A IPC lack an expressive term of intent so the act itself is punishable, regardless of purpose or knowledge but the section 152 BNS, includes elements of ‘knowingly’ or ‘purposely’ suggesting that the action must be done with awareness of its potential to endanger national sovereignty, unity or integrity.
The term ‘disaffection’ under section 124-A includes disloyalty and all feelings of enmity but the term ‘subversive activities’ are not defined under section 152 BNS that may result in ambiguity and arbitrary application of this provision. The punishment for offence of sedition under section 124- IPC includes imprisonment for life or with imprisonment for a term which may extend to three years or with fine.10 The punishment for offence under section 152 BNS includes imprisonment for life or with imprisonment which may extend to seven years with fine.11 Even though the offence of sedition under section 124-A is considered as a serious offence against state it can even be punished with fine only which is not applicable to offence under section 152 BNS.
Thus, in considering the detailed analysis of section 124-A IPC and section 152 BNS it cannot be said that section 124 A under IPC was replaced by section 152 of BNS. Both provisions are entirely different imparting two significant penal offences. The offence of sedition under section 124 A of IPC is a statutory offence and punishes acts or attempt that incites or attempt to incite hatred or violences against a government established by law in India. But section 152 BNS imparts a significant penal provision against acts that endangers sovereignty, unity and integrity of India committed with expressed intention or knowledge. This means that these two penal provisions points to two different significant offences against state.
In case of Tejender Pal Singh v. State of Rajasthan, Rajasthan High court held that section 152 BNS cannot be arbitrarily applied to supress a lawful criticism or peaceful dissent.12
COMPARATIVE STUDY WITH INTERNATIONAL SEDITION LAWS
A. Sedition Laws in United Kingdom (UK)
While considering the historical development of legal system in UK we can see that UK had enacted sedition law even during 17th centuries and continued for many centuries even after its enactment. The gradual modification of legal system paved way for repealing of sedition laws in UK.
The Sedition Act, 1661, was enacted in UK to punish the offence of sedition. According to the provisions of this enactment anything written, printed or spoken against the crown was considered to be an offence. Any acts that tend to infringe the reputation of government officials or public servants were also considered to be an offence. It intends to ensure supremacy of king and the sovereign. Even though the objective was to ensure maintenance of public peace and faith it was largely criticised as it affects and infringes the freedom of free speech.13
The part II of Sedition Act, 1661, provides that anyone maliciously or advisedly by writing, printing or preaching or by speaking or publishes or utter any words or sentences or other things that likely to incite or stir up the people to form hatred or dislike towards the majesty or established government shall be guilty of the offence of sedition.14 This law was criticised on many grounds and in 1977, the Law Commission recommended the need for repealing this Act as it is an age-old legislation and it ultimately affects the freedom of free speech and expression. The Section 73 of Coroners and Justice Act, 2009 abolished some of the common law offences in England including the offence of sedition and seditious libel.15
B. Sedition Laws in United States (US)
In United States, the law of sedition has undergone a drastic transformation from 16th century to the present statute. During earlier period sedition laws were used to supress critics against government but during this contemporary era, highly specific criminal statute requires act of violent conspiracy to punish seditious acts. The Sedition Act, 1798, prescribes crime of sedition as an act to publish “false, scandalous or malicious writing against the government.”16 But later on, this legislation was repealed as it infringes freedom of free speech. The Smith Act, 1940 made crime against advocating forcible overthrow of the government.17
In Brandenburg v. Ohio, the US Supreme Court ruled that a speech can only be prohibited if it directed at inciting an imminent lawless action or it is likely to incite or produce such action.18
In United States, the offence of ‘sedition’ as a broad crime of criticizing or speaking against the government does not exist. But under US criminal code ‘seditious conspiracy’ is an offence. Under US Code, Title 18, Section 2384, defines seditious conspiracy as; If two or more person in any State or territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take or possess any property of the United States contrary to the authority thereof, shall each be fined not more than $20,000 or imprisoned not more than 20 years or both.19 Thus, this provision remarks that seditious conspiracy is a punishable offence under US legal system.
In a recent case law United States v. Rhodes, Stewart Rhodes, a leader of the Oath keepers was charged under $ 2384 for seditious conspiracy and he was convicted for the said offence because the government proved his criminal conspiracy to use force to prevent execution of a federal law.20
C. Sedition Laws in Australia
From analysing the historical context in Australia, sedition was used to punish speech or criticisms that makes hatred or contempt against the Monarch or the government. The Crimes Act, 1914,21 penalised seditious intention that excites disaffection against the Sovereign or Government. At presently, in Australia, sedition is no longer an offence by that name. In 2011, the Australian government removed the specific term ‘sedition’ from federal law on accepting the recommendations from the Australian Law Reforms Commission.
The term of sedition was replaced with more specific context of ‘urging violence’. This makes it clear that the legislation specifies upon the incitement of physical harm not upon mere political criticism or disaffection towards the government. This paradigm shift points an idea that the state intents towards protecting the rights of people rather than protecting the reputation of State. The current legislation in Australia that punishes the conduct of urging violence against the sovereign or the government is enumerated under Division 80 of Criminal Code, Act, 1995.22
Division 80.1AC of Criminal Code, Act, 1995, defines offences of Treachery as;
A person commits an offence if;
(a) the person engages in conduct; and
(b) the conduct involves the use of force or violence; and
(c) the person engages in the conduct with the intention of overthrowing:
(i). the Constitution or
(ii). the Government of the Commonwealth, of a State or of a Territory; or
(iii). the lawful authority of the Government of Commonwealth, shall be punished with imprisonment for life.23
The Division 80.2, of Criminal Code, Act, 1995. specifies offences of ‘urging violence against the Constitution etc;’ as
Urging the overthrow of the Constitution or Government by force or violence
(1) A person (the first person) commits an offence if;
(a) the first person intentionally urges another person to overthrow by force or violence;
(i) the constitution; or
(ii) the Government of the Commonwealth, of a State or of a Territory; or
(iii) the lawful authority of the Government of the Commonwealth;
(b) the first person does so intend that force or violence will occur shall be punished with imprisonment for 7 years.24
The Division 80.3, of Criminal Code, Act, 1995, provides a defence for acts done in good faith. Thus, even though the offence of urging violence or inciting or intending disaffection to overthrow the constitution, the government or lawful authority of government is an offence punishable up to 7 years under the Criminal Code, Act, 1995, the persons are immuned from penal proceeding if the act is done in good faith.25
CONCLUSION
The offence of sedition was incorporated under section 124-A of Indian Penal Code, 1860 during the colonial era to supress the Indian independence movement. Even after several decades of independence this provision continued to operate under IPC. Thus, this provision became a constant issue of debate during last century. The constitutional validity of this section was challenged in many cases before the apex court. But initially the court pointed it to be a valid provision and declared that it is not violative of fundamental freedoms guaranteed by the constitution and such provision is necessary to ensure existence and stability of democratically elected government. Gradually, the apex court expressed it views and questioned whether such a colonial provision is necessary in this contemporary Indian socio-legal context. And made recommendations to the state to filter the necessity for its repeal or amendment. In 2023, when the IPC was replaced with BNS, the concept of sedition was also replaced and introduced section 152 of BNS, dealing with acts endangering, sovereignty, unity and integrity of India. In initial outlook it seems to be a renewed version of section 124-A IPC, but in detailed analysis we can see that both these section 124-A IPC and section 152 BNS totally differs in their aim and objective ultimately pointing towards two different significant offences against state.
While analysing the sedition laws in international jurisdiction it seems a drastic changes in aim, objective and scope of these offences. On analysis of legal regulations in UK, it seems that sedition laws were enacted in UK during the 17th century as anything written, printed or spoken against crown. Later on, it was largely criticised on the ground that it infringes the freedom of free speech and was repealed from penal provisions. In US also sedition law was enacted during 18th century to punish false, scandalous or malicious writing against the government. But this regulation was repealed on the ground that it infringes freedom of free speech. At presently the US Code, punishes act of seditious conspiracy. The Australia penalised seditious intention that excites disaffection against the government or sovereign during the 20th century. At presently, sedition is no longer an offence by that name. The term of sedition was replaced with specific term of urging violences. Thus, the Criminal Code Act, 1995 penalizes the offences of treachery, urging violences against Constitution in Australia.
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Footnotes
1. Indian Penal Code, 1860, s.124 A, Act No.45, Acts of Parliament, 1860 (India)
2. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955
3. Supra note 2
4. Balwant Singh and Another v. State of Punjab, (1995) 3 SCC 709
5. 279th Report, Law Commission of India, https://share.google/9GkS2IoOLxzBzNe3Z, (Last Visited on January 03, 2026)
6. Kishore Chandra Wangkhemcha v. Union of India, WP (Criminal) No.106 of 2021, Supreme Court of India
7. Supra note 6
8. The Bharatiya Nyaya Samhitha, 2023, Act No.45, Act of Parliament (India), 2023, s.152
9. Id.
10. Supra note 1
11. Supra note 8
12. Tejender Pal Singh v. State of Rajasthan, [2024:RJ-JD:34845]
13. The Sedition Act, 1661, 13 Cha. 2 St.1. c. 1., Act of Parliament (England), 1661
14. Id at Part ii
15. Coroners and Justice Act, 2009, c.25, Act of Parliament of United Kingdom, 2009, s. 73
16. The Sedition Act, 1798, ch. 74, 1 Stat. 596, Act of Parliament (USA), 1798, s.2
17. The Smith Act, 1940, ch. 439, 54 Stat. 670, Act of Parliament (USA), 1940
18. Brandenburg v. Ohio, 395 U.S. 444 (1969)
19. US Code, 18 U.S.C. § 2385 (2018)
20. United States v. Rhodes, 610 F. Supp. 3d 29 (D.D.C. 2022).
21. Crimes Act, 1914, Act No. 12, Commonwealth of Australia, 1914
22. The Criminal Codes Act, 1995, Act No. 12, Commonwealth of Australia, 1995, Division 80
23. Supra note 22, Division 80.1AC
24. Id, Division 80.2
25. Supra note 22, Division 80.3