Sedition under the new Bharatiya Nyaya Sanhita Bill, 2023: What’s changed.
Analysis of the bill suggests that the offence of sedition has been retained under the proposed law with new nomenclature and a more expansive definition of “Acts endangering sovereignty unity and integrity of India”.
Union home minister Amit Shah on Friday said in the Lok Sabha that one of the proposed legislations aimed at overhauling the criminal justice system will completely repeal the offence of sedition, as prescribed under Section 124A of the Indian Penal Code (IPC), adding the bill will be sent to a parliamentary panel for scrutiny.
An analysis of the Bharatiya Nyaya Sanhita (BNS) Bill, 2023, however, suggests that the offence of sedition has been retained under the proposed law with new nomenclature and a more expansive definition of what will constitute “Acts endangering sovereignty unity and integrity of India”.
A review of the text of the 2023 bill by HT indicates that the move by the government is in line with a recommendation made by the Law Commission of India in June, with the alternative punishment for the offence being sought to be enhanced to seven years in jail from the present three under the IPC; the 2023 bill also continues to have life imprisonment as the maximum punishment.
The bill has been tabled by the Centre at a time when the Supreme Court is seized of a bunch of petitions, challenging the validity of Section 124A in the IPC.
The operation of Section 124A— a non-bailable offence punishable with jail term ranging up to life, and one that activists and jurists have alleged is often misused to muzzle dissent -- is currently on hold due to a continuing interim order of the top court passed on May 11, 2022.
A key change in the proposed draft Section 150 of the BNS bill is the removal of a provision, which allowed a person convicted of sedition to get away only with a fine: Section 150 of the bill prescribes imprisonment for life or with imprisonment which may extend to seven years, in addition to fine, as punishment.
Section 150 reads as: “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 means, 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.”
Here’s comparison with Section 124A of IPC , which reads: “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.”
A comparative evaluation between the old and the new shows that Section 150 has included “electronic communication” and “use of financial means” as tools of perpetuating an act “endangering sovereignty unity and integrity of India”.
The new provision also lays down that the category of offence under Section 150 will not be against “the Government established by law in India,” as was mentioned under Section 124A of IPC.
But the offence under Section 150 is committed when acts spark “secession or armed rebellion or subversive activities or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India.”
Notably, the draft provision adds “indulges in or commits any such act”, leaving a greater discretion with law enforcement agencies to decide what can be brought within the fold of an act “endangering sovereignty unity and integrity of India” for the purposes of slapping the charges.
Section 150, in its ‘Explanation’, keeps the old clarification, stating that 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, will not constitute an offence under this provision.
Also Read: Situation from Kashmir to Kerala makes it must to retain colonial-era sedition law: Law panel chief
In its June report, the Law Commission recommended that the 153-year-old colonial law on sedition be retained, insisting that “repealing the legal provision can have serious adverse ramifications for the security and integrity of the country”. It favoured amending Section 124A “so as to bring about more clarity in the interpretation, understanding and usage of the provision”.
The commission said the sedition law, which carries a maximum punishment of life imprisonment or a punishment of three years, should be amended to enhance the alternative punishment to seven years, calling for giving courts greater room to award punishment for a case of sedition in accordance with the scale and gravity of the act.
On May 11, 2022, the Supreme Court in a historic judgment effectively put on hold the colonial-era penal provision, and asked the Centre and states to desist from arresting people or prosecuting them under the contentious provision until the Union government reviews it.
Asserting that the sedition law in India “is not in tune with the current social milieu”, the court had in May last year emphasised that “it will be appropriate not to continue the usage of the provision of law by the governments” when the Centre itself has conveyed a desire to “reconsider and re-examine” the contours and validity of Section 124A.
Two days before the top court had suspended the operation of the sedition law, the Union government had filed an affidavit stating that it was willing to review the sedition law but urged the court to pause the ongoing judicial scrutiny of the penal provision.
On May 1, attorney general R Venkataramani had informed a bench, headed by Chief Justice of India Dhananjaya Y Chandrachud, that the legislative process of reviewing the law on sedition is in the “final stages”, adding “the government is keen on pushing reforms”. The top law officer at the time submitted that the government has set up a committee to review Section 124A in the IPC and that the deliberation with the stakeholders was on.
Recording A-G’s statement, the bench had then posted the matter for a hearing in the second week of August, when, it said, the court may also consider a larger bench to determine the validity of the sedition law since a five-judge bench had in 1962 upheld the legality of Section 124A.