ABSTRACT
Sedition
laws date back to colonial times. The Indian legislature passed the Bharatiya
Nyaya Sanhita, 2023, in order to decolonize several similar legislation. The
previous sedition statute was repealed under section 152[2] of
the act. In order to determine whether or not the reform has been implemented,
this study objectively examines the historical development of section 124A[3] of
the IPC and compares the two sections. The study argues by examining the
transition from the "government established by law" to the abstract
notion of "India" that when the terms of the legislation are unclear
and open to multiple interpretations, changing the provision's title does not
result in meaningful reform. The ambiguous terms not only retain the repressive
nature of its predecessor but expand its scope by posing a serious threat to
the fundamental right to “free speech and expression”[4]. This
paper argues that a substantial "chilling effect" on free speech is
sustained by BNS section 152.
Keywords: Sedition - section 152 BNS - vague terms - chilling effect - freedom of speech and expression
INTRODUCTION
Restrictions on the right to free speech are among the worst types of tyranny.
THE
END OF THE COLONIAL ERA?
As
a major move towards decolonization, the government's adoption of the Bharatiya
Nyaya Sanhita, 2023,[5]
marked a turning point in Indian legislation. To put an end to the colonial era
and all indications of slavery, new laws were passed on July 1, 2024. The union
home minister stated that "Modi government is going to repeal sedition law
completely" and emphasized that "India is a democracy and everyone
has the right to speak" when announcing this reform.[6]
Although
the new law passage and the previous law repeal were praised, a closer
examination of the new provisions shows a different picture. A closer look
reveals the inclusion of Section 152[7],
which is labeled "Acts endangering sovereignty, unity and integrity of
India”. This sparked discussion and raised an important question: Is the new
legislative reform a true attempt to expand the scope of the fundamental right
to “free speech and expression”[8], or is
it just a rebranding of the previous sedition statute with a stronger and more
expansive mandate?
This
paper demonstrates that the change from section 124A IPC to section 152 BNS is
a legislative maneuver rather than a significant improvement. The government
stated that a necessary shift has been made from safeguarding the
"government" to protecting the "nation," but it did not
provide an explanation for the unclear terminology. This paper contends that
the modification is only a "reincarnation" of the previous
legislation. This paper's critical analysis reveals that it is a rebranding, or
"old law in a new guise," rather than a reform. The sedition law's
colonial development and the restricted threat it poses to lawful dissent, are
explained in this paper.
Furthermore, it has been explained how a person's ability to speak and express themselves is threatened by new, ambiguous, and imprecise terminology. Lastly, the research comes to the conclusion that section 152 is far from achieving the goal of liberalizing speech through a comparative analysis of global trends.
COLONIAL
LEGACY: HISTORICAL EVOLUTION OF SEDITION
To
ascertain whether the offense of sedition under section 124A IPC has been
eliminated or if the new section 152 of BNS has merely reframed the term
"sedition," it is crucial to comprehend the colonial legacy of the
introduction and evolution of the term.
The law's controversial past
stretches back to the colonial era.
The pre-1898 definition of sedition was provided by Lord Thomas Babington Macaulay.
In 1870, James Fitzjames Stephen passed a Special Act (XXVII of 1870) through
an amendment to the penal code, adding the section on sedition as provided by
Lord Macaulay verbatim to the Indian Penal Code. The common law of
seditious libel and the Treason Felony Act[9]
are two of the sources from which the structure of this provision was derived.[10]
The
Britishers have employed this potent weapon in a number of instances to defend
their control against the burgeoning freedom movement. In the case of Queen-Empress[11] W.
Comer Petheram, Kt., C.J. explained that a person will be guilty of the crime of inciting disaffection
under section 124A IPC if they use written or spoken comments with the intent
to incite disobedience to the government's legitimate authority. This depicts the clear intention of
the makers to nip the criticism in the bud.
Emperor
v. Bal Gangadhar Tilak[12] was
the next case in the line. In this case, the term "disaffection" was
expanded to include disloyalty and all hostile sentiments, and it was decided
that press freedom should not be used to incite hatred toward the government or
to try to incite such sentiments. Both the cases made it clear that the actual
occurrence of the event is immaterial, and this made the provision of the act a
potent tool for suppressing any kind of dissent.
Gandhi
criticized the legislation against sedition and stated, “Section 124-A, under
which I am happily charged, is perhaps the prince among the political sections
of the Indian Penal Code designed to suppress the liberty of the citizen.”[13]
Gandhi's
trial, along with other colonial-era trials, illustrates the oppressive
dominance that prevailed in British India.
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