The Supreme Court on Tuesday said a law cannot be struck down merely because it could be misused, while agreeing to hear a challenge to Section 152 of the Bharatiya Nyaya Sanhita (BNS), the new provision replacing sedition in the Indian Penal Code.
During the Tuesday hearing, senior advocate Nitya Ramakrishnan argued that Section 152 is effectively identical to the sedition provision that the court had kept in abeyance, and that its vague drafting made it prone to misuse against journalists. “This case is a shining example of how the provision can be misused… police can come knocking at night,” she said.
The bench, however, drew a distinction between legislative power and enforcement:
“The potentiality of abuse…is this a ground to declare a provision unconstitutional? There is a difference between implementation and the power to legislate… Any provision in penal law can be misused,” it observed.
The court accepted that vagueness could be a valid ground for striking down a law, citing the Shreya Singhal judgment in 2015, which had invalidated Section 66A of the IT Act, and noted that until there is a “clear and present threat to integrity and sovereignty, the section is not attracted”.
On calls to more precisely define acts threatening sovereignty, the bench said: “Political dissent cannot be endangering integrity and sovereignty… But inviting legislature to define what is endangering sovereignty is itself dangerous. It has to depend on the facts of each case.”
{{/usCountry}}On calls to more precisely define acts threatening sovereignty, the bench said: “Political dissent cannot be endangering integrity and sovereignty… But inviting legislature to define what is endangering sovereignty is itself dangerous. It has to depend on the facts of each case.”
{{/usCountry}}Solicitor General Tushar Mehta pointed out that Section 152 contains an explanatory clause and cautioned that “merely because the vires of a provision has been challenged, the provision cannot be stayed”. He also submitted that foreign constitutional doctrines may not be applicable given India’s distinct Article 19 framework.
The debate over Section 152 came even as the bench of Justices Surya Kant and Joymalya Bagchi issued notice to the Centre and the Assam government on a petition by The Wire editor Siddharth Varadarajan and members of the Foundation for Independent Journalism, seeking quashing of an FIR registered against them in Morigaon, Assam, for an article on military operations linked to Operation Sindoor.
In the course of the hearing the bench said a balance must be struck between the fundamental right to free speech and the need to preserve public order, cautioning that asking the legislature to exhaustively define what could endanger the sovereignty and integrity of the nation would be “dangerous”.
“No coercive action shall be taken” against the petitioners, the bench ordered, allowing them to join the police probe as and when required. The court tagged the matter with the earlier batch of cases challenging sedition, in which the vires of Section 152 of the BNS is also under scrutiny.
The FIR, lodged by a ruling party office-bearer in Assam, accuses The Wire and Varadarajan of publishing on June 29 a report titled ‘IAF Lost Fighter Jets to Pak Because of Political Leadership’s Constraints’: Indian Defence Attache, quoting statements made at a university seminar in Indonesia. The petitioners, however, said the report was factual, quoted the government’s version in full, and was based on remarks by India’s defence personnel, widely carried by other media outlets.
The court clarified it was “not treating media professionals as a separate class” but “merely balancing the rights to freedom of speech and the State’s right to investigate”, remarking: “There cannot be a present danger to sovereignty just because there is an article or a programme that may not be palatable to some.”
The matter will now be heard along with the pending constitutional challenge to sedition’s successor provision in the BNS.
Last week, a bench led by Chief Justice of India Bhushan R Gavai sought Centre’s response on a petition by a retired Army officer SG Vombatkere, challenging the constitutional validity of section 152 of BNS. His petition demonstrated how section 152 criminalises a wide spectrum of expressive conduct, including those who “purposely or knowingly” use words—spoken, written, electronic, symbolic, or financial -- 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, that could have a chilling effect on free speech.
Vombatkere had also challenged the earlier provision of Section 124A in IPC as well. It was a batch of petitions led by his plea that the top court in May 2022 directed all criminal proceedings related to sedition to be kept in abeyance. The matter was then referred to a constitution bench.
BNS which replaces IPC, came to be enacted by Parliament in December 2023 and was put into effect from July 1, 2024.