SEDITION UNDER THE BNS: RENAMED, NOT REFORMED?
Section 152 of the Bharatiya Nyaya Sanhita and the Question of Real Change
Introduction
When the Bharatiya Nyaya Sanhita, 2023 (BNS) replaced the Indian Penal Code, 1860, the government’s central claim about one provision stood out: sedition, it said, had been repealed. Section 124A of the IPC — the colonial-era offence used against Tilak, Gandhi, and, in recent decades, against journalists, students, and activists — was gone. In its place stood Section 152, framed not around loyalty to “the Government established by law” but around the sovereignty, unity, and integrity of India itself. Although the BNS does not use the term “sedition,” Section 152 continues to address conduct traditionally associated with sedition law.
Whether this is a genuine break from a much-criticised colonial provision, or the same offence carrying a new number and a rewritten preamble, is not a rhetorical question. It determines whether years of Supreme Court jurisprudence narrowing sedition still applies, whether the categories of speech now criminalised are broader or narrower than before, and whether the practical risk — of an FIR against a cartoonist, a student, or a journalist for criticising the state — has actually gone down. This article compares the two provisions on text, on judicial safeguards, and on punishment, and asks whether the rebrand is a rebrand only.
The Old Provision: Section 124A IPC
Section 124A criminalised bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards, “the Government established by law in India,” by words, signs, or visible representation. It carried a maximum sentence of life imprisonment, or imprisonment up to three years, either with or without fine. The provision dated to 1870, was strengthened in 1898, and was the primary tool used by the colonial state to prosecute the independence movement.
Its constitutionality was challenged after independence on the ground that it was incompatible with the freedom of speech guaranteed under Article 19(1)(a) of the Constitution. In Kedar Nath Singh v State of Bihar (1962), a Constitution Bench of the Supreme Court upheld the provision, but only by reading it down: sedition, the Court held, would be made out only where the speech had a tendency to incite violence or public disorder. Strong, even virulent, criticism of the government, without any tendency to provoke disorder, would not attract the section. The words of the statute were left untouched — only its application was narrowed.
In practice, the Kedar Nath safeguard did little to prevent misuse. Because the statutory text itself still spoke broadly of “disaffection” and “contempt,” police routinely registered FIRs on the strength of the bare words of Section 124A, without applying the incitement-to-violence test at the registration stage. Cartoonists, student activists, and journalists were booked for content that plainly did not meet the Kedar Nath threshold, and the burden of eventually securing relief fell on courts higher up the chain — often years after the initial arrest or seizure.
The scale of this pattern led the Supreme Court, in S.G. Vombatkere v Union of India (2022), to take the unusual step of directing that Section 124A be kept “in abeyance” altogether. Pending a promised reconsideration by the Union Government, all pending trials and proceedings under the section were kept in abeyance, and the Union and State Governments were requested to refrain from registering fresh FIRs under it. The section was never struck down or repealed by the Court — it was suspended by judicial fiat while the legislature decided what to do with it.
Section 152 BNS: What Changed on Paper
The BNS replaced Section 124A with Section 152, in the chapter dealing with offences against the State. On its face, several changes stand out:
- The word “sedition” and the phrase “Government established by law” are gone. The provision no longer protects the government as such. It is framed instead around exciting or attempting to excite secession, armed rebellion, or subversive activities, encouraging feelings of separatist activities, or endangering the sovereignty, unity, and integrity of India.
- New modes of commission are added. Alongside words, signs, and visible representation, the section now expressly covers “electronic communication” and the “use of financial means” — a nod to online speech and to the financing of separatist or subversive activity.
- A mens rea requirement is made explicit. The offending act must be done “purposely or knowingly.” The old Section 124A contained no equivalent express mental-element requirement in its main text.
- An exception clause is retained. Section 152 excludes comments expressing disapprobation of government measures or administrative action made with a view to their lawful alteration, provided they do not incite the listed acts. This is not new: Explanations 2 and 3 to the old Section 124A already carved out an almost identical exception for disapprobation of government measures without exciting hatred, contempt, or disaffection. The safeguard has been carried forward, not invented.
- Punishment has increased, not decreased. Section 124A allowed a court to impose life imprisonment, or a term of imprisonment up to three years, with fine optional in either case. Section 152 provides for life imprisonment or imprisonment up to seven years, together with a fine — raising the ceiling on the lesser sentencing option from three years to seven, and making the fine mandatory rather than optional.
Is It Actually Different?
The formal changes are real, but three features of Section 152 suggest continuity with the old offence rather than a genuine narrowing of it.
1. The Core Verb Survives
Section 124A criminalised exciting or attempting to excite disaffection. Section 152 criminalises exciting or attempting to excite secession, armed rebellion, or subversive activities, or encouraging separatist feelings. The retained word “attempts” matters more than it looks: it means the offence is complete on an inchoate act — the attempt to provoke a reaction — without proof that anyone was actually incited, or that any disorder in fact resulted. This was precisely the feature of the old provision that allowed FIRs to be registered on the bare text of a speech or post, before any Kedar Nath-style inquiry into actual effect took place. Section 152 does not remove this structural feature; it relocates it to a new set of target categories.
2. The New Categories Are Undefined and Potentially Broader
“Subversive activities” and “separatist activities” are not defined anywhere in the BNS. Unlike “disaffection towards Government,” which at least identified a specific object (the government), these phrases could, on a wide reading, sweep in advocacy for greater federal autonomy, criticism of specific security operations in conflict areas, or online commentary on regional self-determination movements — none of which necessarily involves incitement to violence. Whether these terms will be read narrowly by courts, in the way Kedar Nath narrowed “disaffection,” is untested. Until the Supreme Court authoritatively construes Section 152, the practical scope of “subversive” and “separatist” is at least as uncertain as “disaffection” was before 1962.
3. The Kedar Nath Safeguard Does Not Automatically Transfer
The incitement-to-violence-or-public-disorder test in Kedar Nath Singh was developed to save Section 124A specifically, by reading down its particular words — “hatred,” “contempt,” “disaffection towards the Government.” Section 152 is a materially different text, addressed to different conduct (secession, armed rebellion, sovereignty and integrity, rather than disaffection towards government). Whether the Kedar Nath threshold applies unchanged to this new formulation, or whether courts will need to develop a fresh reading-down doctrine for Section 152, is a live and currently unresolved question. Until the Supreme Court says so expressly, prosecuting agencies and lower courts have no binding instruction that the incitement threshold carries over — which reproduces exactly the interpretive gap that allowed misuse of the old provision for a decade after 1962.
4. The Abeyance Protection Has Lapsed
The Vombatkere abeyance order was directed specifically at Section 124A of the IPC — a provision that, after the BNS came into force, has been repealed rather than merely suspended. Section 152 is a new provision, not a continuation of the one the Supreme Court suspended, so the abeyance direction does not extend to it. Prosecutions can proceed under Section 152 without the interim restraint that applied to its predecessor, unless and until a court grants equivalent relief against the new section on its own terms.
The Government’s Case
The stated rationale for the change is not without substance. Removing the word “sedition” and its association with loyalty to the government does mark a conceptual shift: the offence is now framed around threats to the nation’s integrity and existence, not around insulating the ruling government of the day from criticism, which is closer to how comparable offences are framed in several other democracies. The explicit mens rea requirement and the retained disapprobation exception are genuine textual safeguards, even if the latter is not new. The addition of “electronic communication” and “financial means” responds to real gaps in the old law, which pre-dated the internet and organised transnational financing of separatist movements.
Conclusion
Section 152 is not a pure rebrand — the removal of “sedition” and “Government established by law,” the express mens rea, and the extension to digital and financial conduct are real drafting changes with some substantive effect. But the provision retains the exact structural feature that made the old offence prone to misuse: liability for merely attempting to excite a prohibited reaction, without proof that the reaction occurred. It replaces one set of undefined, broad terms (“disaffection,” “contempt”) with another (“subversive activities,” “separatist activities”) that courts have not yet had occasion to narrow, while raising the minimum available custodial sentence and losing the interim judicial restraint that had been secured against the old provision. Until the Supreme Court does for Section 152 what it did for Section 124A in 1962 — reading a clear incitement threshold into the new text — the honest answer to whether this is reform or rebrand is: mostly rebrand, with the balance depending entirely on how the untested terms are eventually construed.
