Sedition by another name equally shady

Much has been discussed about the Bharatiya Nyaya Sanhita (BNS) Bill 2023 – which seeks to replace the Indian Penal Code 1860 – not mentioning ‘sedition’. GoI has stated that India is a democracy and everyone has a right to speak freely, and that it wanted to repeal the colonial-era sedition law. That is excellent reasoning for a liberal democracy. Yet, the ghost of Section 124A of IPC 1860 – sedition – lingers in Section 150 of the BNS Bill. The intent of the two provisions is very different. Section 124A of IPC intends to suppress free speech. Section 150, on the other hand, of the BNS Bill is focused on national security, and attempts to balance individual liberty and national security. Part 7, ‘Of Offences Against the State’, in this section criminalises acts perceived to be endangering the sovereignty, unity and integrity of India. The onus should be on GoI now to provide greater clarity and steadier equilibrium.

Section 150 expands the list of activities perceived as endangering national security. The explicit mention of ‘electronic communications’ could bring WhatsApp messages, emails, social media posts and private forwards under its scope. The ‘use of financial mean’ could enable charging persons with alleged violations linked to financial transactions. At the same time, it specifies the offences would attract this provision: engaging in secession, participating in armed rebellion, undertaking subversive activities and encouraging feelings of separatist activities. The explicit incorporation of criminal intent (mens rea) – ‘purposely or knowingly’ – is a positive. But for a country that has been found to be overcautious to the point of being overbearing regardless of administrations, specificity in law must be paramount.

Guard rails to balance individual liberty and national security should be strengthened – for instance, a tighter definition of ‘subversive’ activities. GoI must explain the need for Section 150, when terrorism and organised crime have been dealt with already in the proposed law.