Authored By: D.Kavin
NLSIU, Bengaluru
I. INTRODUCTION
The Union Home Minister of India, Amit Shah told the Lok Sabha in Parliament that the offence of sedition “has been repealed” on 11 August 2023, when he introduced Bharatiya Nyaya Sanhita Bill in the House.[1] Two years after the enactment of Sanhita, a Bench of the Supreme Court on 12 August 2025 was still asking whether the “potentiality of abuse” of Section 152 of the Act, itself, is a reason to invalidate the provision.[2] The immediate cause was that two FIRs had been filed, one at Morigaon, Assam under Sections 152, 197(1)(d) and 353(1)(b) against the founding editor of one digital news outlet, for a report on a defence attaché’s comments on a military operation,[3] and a second FIR, which had been filed in May but only activated with summons the day the Court protected the editor, over a separate set of articles, under Sections 152, 196, 197(1)(d) and 353.[4] Between the two, all the provisions in this article studied were used against one newsroom in less than three months, setting the frame for the inquiry which follows.
The colonial offence of sedition, Section 124A of the Indian Penal Code, 1860, was not reflected in the Bharatiya Nyaya Sanhita, 2023 (“BNS”), which was enacted on 1st July 2024. In its stead, Sections 152 and 353(1) (b) of the new Code criminalize actions that endanger the sovereignty, unity and integrity of India and retain the power of policing speech deemed to endanger public order or communal harmony (in the new incarnation of Section 196 and 353(1)(b) of the old Code). This article argues that the BNS does not restrict the offence as the Supreme Court understood it in Kedar Nath Singh v State of Bihar, but expands the scope of the offence in three distinct ways through text and procedure. Part II explores the doctrinal legacy; Part III looks at the current text; Part IV sees an overview of judicial reception in the early period; Part V assesses whether reform has taken place in doctrine or only in nomenclature.
II. FROM MACAULAY TO THE CONSTITUENT ASSEMBLY: THE DOCTRINAL INHERITANCE
The “disaffection” towards the government has been given criminal status not only after independence. Thomas Macaulay’s 1837 draft Penal Code contained a sedition clause absent, for reasons historians still debate, from the Code as finally enacted in 1860.[5] This omission was corrected in 1870, when Sir James Fitzjames Stephen’s amendment was added to the act, covering what came to be known as Section 124A, which was supposed to solve the problems of unrest associated with the Wahabi movement.[6] The provision was to be the main instrument for prosecution of the nationalist press: Bal Gangadhar Tilak was convicted in 1897 and in 1908 under the provision on articles in Kesari, and Mahatma Gandhi was convicted in 1922 under the same section on essays in Young India, telling the trial court that “affection cannot be manufactured or regulated by law.[7]
The Constituent Assembly did not include sedition in the exceptions to Article 19(1) (a) to Article 31, several of its members pointing out that they were deliberately excluding the colonial provision.[8] But Section 124A, strangely, remained in the Penal Code, and came up for determination of its constitutionality in Kedar Nath Singh v State of Bihar before the Supreme Court. A Constitution Bench upheld the section, albeit by a process of reading it down: criticism of government, even if it was ‘highly offensive’, could only be punished if it included incitement to violence or a tendency to cause public disturbance.[9] In the same judgment, the companion offence to Section 505(b) of the Code (the direct predecessor to Section 353(1)(b) of the BNS) was upheld on the same incitement-based grounds.[10]
The interpretation of this rescue constituted a jurisprudence of sedition for 60 years, but it did not result in the end of the discussion on the future of the provision. The Supreme Court in its order in S.G. Vombatkere v Union of India, placed Section 124A in abeyance in May 2022 which meant that in the meanwhile, no fresh prosecution was to be registered against the accused until the Union government reconsidered the law.[11] In the following year, the 279th Law Commission report had recommended against repeal and suggested that the Kedar Nath Singh incitement standard be enshrined in the section, the term of years limitation be increased from three years to seven years, and that prior sanction should be obtained before an FIR could be registered.[12] Some months later, Parliament took the first two of these three recommendations on board by passing the BNS. It didn’t take the third.
III. THE ENACTED TEXT: RELOCATION, NOT REPEAL
Section 152 of the BNS punishes 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, armed rebellion or subversive activities, encourages separatist feelings, or endangers the sovereignty or unity and integrity of India.[13] The offence carries a life sentence and a term of up to seven years, and is non-bailable and cognisable, just like sedition under the unamended Section 124A.[14] Section 196 is an almost verbatim copy of Section 153A of the old Code, which criminalizes acts of promoting enmity and disharmony between religious, racial, linguistic, caste and community groups, the only major substantive change here being an explicit reference to “electronic communication” as a method of commission.[15] Section 353(1)(b) expands on Section 505(b) in substance, that makes the same threat of punishment to anyone who utters words which are likely to cause fear or alarm to the public in an attempt to provoke a person to commit an offence against the State or public tranquillity.[16]
There is also an Explanation to Section 152, which is in structurally similar form to the old law: “Comments that express disapprobation of the measures, or administrative or other action of the Government with a view to obtaining their alteration by lawful means without exciting or attempting to excite the activities referred to in this section, do not constitute an offence”.[17] A supporter of the Sanhita may point to this clause as proof that Parliament did actually establish a standard of protection for speech. Its genealogy says otherwise! Substantially the same disapprobation provisos were in Section 124A when it was amended in 1898 – 60 years before Kedar Nath Singh was decided.[18] Thus, the Explanation proves continuity with the pre-1962 statute, rather than an encoding of the incitement gloss that was then to follow. It offers no justification for any comment that calls on the government to change its lawful policies; it is silent on the larger category of speech that may call for a change in some lawful policy, but is not “comment” nor directed to a “measure” of government. The reason for this gap, as Part IV demonstrates, was why the Rajasthan High Court had to resort to an interpretation of the 1962 standard in Section 152, rather than having the standard 1962 standard in its text.
Two other aspects stand out as a change rather than a continuity. First, the maximum period for a term of years alternative to life imprisonment has been increased from three years to seven years – now in “parity” with other Chapter VI offences as the Law Commission puts it – without anything having changed with regard to the cognisable, non-bailable nature of the sentencing structure.[19] Secondly, the listed means of commission have been expanded to incorporate “electronic communication” and “financial means” as these new means of communication were never included in Section 124A. A third change is structural: the BNS spreads out what was effectively one offence – sedition (and, when applicable, Section 505 IPC) over three sections, all of which an act of speech can now be committed at once.
The government’s own statement of objects and reasons for the exercise of power in the Bill, attached to it, was that the Sanhita would “remove colonial imprints” from the criminal law.[20] The fact that the word “sedition” has been erased from the statute does not do much to substantiate the claim: the elastic, undefined threshold for the crime -“subversive activities” and “separatist feelings” – still has about the same meaning as the “disaffection” that it replaced. Opposition members of the Standing Committee on Home Affairs, including Manish Tewari and Shashi Tharoor, made precisely this objection during the Bill’s scrutiny;[21] the government’s response was to reiterate that the provision reflected a “forward-looking” concern for sovereignty consistent with Article 19(2), without engaging the vagueness objection on its merits.[22]
IV. FROM KEDAR NATH SINGH TO THE WIRE: EARLY JUDICIAL RECEPTION
The most obvious sign of the changes the BNS has made is how they have been applied, and how the courts have reacted. In Tejender Pal Singh v State of Rajasthan, a Sikh preacher wanted the FIR filed against him under Sections 152 and 197 of the BNS to be quashed as he had posted a video on Facebook expressing sympathy with a separatist leader.[23] The Rajasthan High Court did not accept the new law as an blanket amnesty from the old law, it was, in terms, “sedition by another name” and could be invoked only when the speech itself “created a real and imminent threat to the unity and sovereignty” not just when it offended.[24] It was the High Court, in effect, that was replacing the 1962 incitement gloss with a 2023 statute, doing the jobs that Part III demonstrates the statutory Explanation doesn’t do.
The pattern in Section196 is parallel. In Javed Ahmad Hajam v State of Maharashtra (March 2024), it argued in the light of the old Section 153A that “if every criticism or protest of the action of the State is considered as an offence under Section 153-A, democracy will not survive”.[25] The rationale extends to its textual successor in section 196, and in both instances provides an example of a restriction not provided by the statute but by judges.
The clearest example of continuity, however, comes out of the case that began this article. By the time the Morigaon FIR came to light, the petitioner, the Foundation for Independent Journalism, and founding editor of The Wire, Sidharth Varadarajan had already filed a petition to the Supreme Court challenging the constitutionality of Section 152; on 12 August 2025, the Supreme Court granted interim protection in the Petition and issued notice to the Union, asking counsel directly whether the “potentiality of abuse” of a penal provision could be a basis for unconstitutionality.[26] The same day, the Guwahati Crime Branch summoned Varadarajan and another journalist under a second FIR – registered on 9 May 2025 but dormant till then – under Sections 152, 196, 197(1)(d), 353, 45 and 61 because of a different set of articles.[27] The petitioners submitted that in substance Section 152 was a rewording of Section 124A.[28] In this argument, that petitioner, S.G. Vombatkere, has also altered his prayer in the petition that led to the 2022 abeyance order, the original petitioner having changed his prayer to submit that the offence is revived under the new number under Section 152.[29] In another, connected, instance, the Court granted similar protection to another journalist and against whom a second YouTuber was taken to task under Section 152 for criticisms made of a State government’s land-allotment activities.[30]
V. CRITICAL EVALUATION: RELOCATION, NOT REFORM
The conclusion that Parliament shifted the location and not the narrowing of the offence that Kedar Nath Singh understood is supported by five features of BNS scheme. First, the successor provision also has an undefined, elastic vocabulary: “subversive activities,” “separatist feelings,” and “endangers sovereignty” are none the more precise than the “disaffection” it replaced; its Explanation excuses only lawful comment aimed at policy change, a narrower, older carve-out than the incitement standard Tejender Pal Singh had to supply by interpretation. Second, the ceiling on the penalty has not been lowered, it has been raised, and the offence is still cognisable and non-bailable, so the coercive machinery that rendered sedition prosecutions offensive no matter the outcome of the trial is in place. Thirdly, Parliament has failed to act on the one Law Commission recommendation which would have provided a substantive safeguard prior to the initiation of an FIR, namely the one pre-registration requirement, which stood as it did in Section 124A. Fourth, the words “electronic communication” and “financial means” explicitly broaden the offense to areas not covered by the colonial era drafters. Fifth, and most importantly, the same charge of sedition and public mischief, was spread across three sections: 152, 196 and 353, between the two FIRs that were filed against The Wire’s editor within three months, and each of the sections had its own custodial exposure.
The counter-case should also be entered with the registration of a fair account. The exclusion of the word ‘sedition’ is not just cosmetic; it precludes any possible interpretation of Section 124A’s colonial pedigree and its judicial and public history of connection to the prosecution of the freedom movement, and it has led to courts, like the Rajasthan High Court, to formal a new Kedar Nath Singh standard, rather than simply repeating a parting of a discredited provision. It is not a foregone conclusion that the Law Commission’s position is correct. Some offence to protect territorial integrity is essential to any polity and it is too much to expect that a defence of colonial origin alone would suffice even for the repeal of much of Indian statute law.[31] It is not clearly unhealthy that a State like India, where a number of hostile secessionist movements are active in different parts of the State, has a legitimate interest in an offence of this general nature.
Neither of these considerations, however, responds to the vagueness and disproportionality objections which give rise to the challenge to Section 152 which is pending. Simply removing the most objectionable label from a provision is not enough to “reform” it, since the structure and penalty continue to be the same, and the harsh treatment in the procedures remains. Relocation is the renaming of a category of prosecutable speech that does not change what is included in the category.
VI. CONCLUSION
The title of this article allows for one right answer. The offence of sedition as defined in Bharatiya Nyaya Sanhita does not seem to be restrictive of the offence of sedition as held in Kedar Nath Singh v State of Bihar. It has changed the name of that offence, spread it out across three different sections of the Act (152, 196 and 353(1)(b)) and increased the limit on the punishment for the offence, and maintained the previous-sentence safeguard despite the Law Commission’s recommendation that it be removed. It has its own Explanation that restricts the lawful criticism of a policy, rather than the incitement standard that courts subsequently have to provide on a case-by-case basis which the Rajasthan High Court has recently done in Tejender Pal Singh and the Supreme Court has the potential to do in the case brought by Foundation for Independent Journalism.
There are two courses of action that would end the rift between rhetoric and text. The Law Commission had proposed to Parliament to have the incitement standard codified explicitly in Section 152 instead of through litigation piecewise in one FIR at a time. If the Supreme Court does not correct the legislation, then it will give the same protection in Section 152 that it offered in Section 124A in 2022 until the constitutional challenge before the Supreme Court is finalized. Now, until either of these happens, the true story of the fate of India’s law of sedition is not repeal, but relocation in new numbers.
Reference(S):
[1] Press Information Bureau, ‘Union Home Minister and Minister of Cooperation, Shri Amit Shah Introduces the Bhartiya Nyaya Sanhita Bill 2023, the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and the Bharatiya Sakshya Bill, 2023 in the Lok Sabha’ (PIB Delhi, 11 August 2023)
[2] Journalists’ Arrests Questioned as SC Balances Free-Speech Rights and State Power in BNS Section 152 Challenge’ (The420.in, 14 August 2025) <https://the420.in/supreme-court-bns-section-152-sedition-free-speech/> accessed 4 September 2026.
[3] SC Shields The Wire Editor, Issues Notice on Challenge to “New Sedition” Law Section 152 BNS’ (LawBeat, 12 August 2025) <https://lawbeat.in/news-updates/sc-shields-the-wire-editor-issues-notice-on-challenge-to-new-sedition-law-section-152-bns-1515220> accessed 4 September 2026.
[4] Assam Police FIR: The Wire’ (The Wire, 20 August 2025) <https://thewire.in/law/assam-police-fir-the-wire> accessed 4 September 2026.
[5] Kavya Dubey, ‘A Colonial Legacy, Tilak, Mahatma Gandhi Were Charged Under Section 124A’ (Morung Express)<https://morungexpress.com/a-colonial-legacy-tilak-mahatma-gandhi-were-charged-under-section-124a> accessed 4 September 2026.
[6] ibid.
[7] Supreme Court Observer, ‘Sedition in India: A Timeline’ <https://www.scobserver.in/journal/sedition-in-india-a-timeline/> accessed 4 September 2026.
[8] Constituent Assembly Debates, Vol VII (1 December 1948) (K.M. Munshi); Romesh Thappar v State of Madras AIR 1950 SC 124.
[9] Kedar Nath Singh v State of Bihar AIR 1962 SC 955, paras 24, 26–28.
[10] ibid.
[11] S.G. Vombatkere v Union of India (2022) 7 SCC 433.
[12] Law Commission of India, Usage of the Law of Sedition (Report No 279, 2023).
[13] Bharatiya Nyaya Sanhita 2023, s 152.
[14] Civilsdaily, ‘Section 152 of the Bharatiya Nyaya Sanhita (BNS)’ <https://www.civilsdaily.com/news/section-152-of-the-bharatiya-nyaya-sanhita-bns/> accessed 4 September 2026.
[15] Bharatiya Nyaya Sanhita 2023, s 196; cf Indian Penal Code 1860, s 153A.
[16] Bharatiya Nyaya Sanhita 2023, s 353(1)(b); cf Indian Penal Code 1860, s 505(b).
[17] Bharatiya Nyaya Sanhita 2023, s 152, Explanation; see Drishti Judiciary, ‘Section 152 of BNS’ <https://law.drishtiias.com/current-affairs/section-152-of-bns> accessed 4 September 2026.
[18] Indian Penal Code (Amendment) Act 1898 (Act IV of 1898), inserting Explanations 2 and 3 to s 124A; ‘Sedition: (Chequered History & Present Status)’ (LiveLaw) <https://www.livelaw.in/amp/columns/sedition-chequered-history-present-status-158921> accessed 4 September 2026.
[19] Law Commission of India (n 12).
[20] Sedition Recast: Analysing Section 150 of the BNS in Light of the Right to Free Speech’ (2025) ScienceDirect <https://www.sciencedirect.com/science/article/pii/S2590291125010071> accessed 4 September 2026.
[21]ibid.
[22]ibid.
[23] Section 152 BNS is Sedition by Another Name, Must Not be Used to Stifle Dissent: Rajasthan High Court’ (Bar and Bench, 2024) <https://www.barandbench.com/news/section-152-bns-sedition-another-name-must-not-used-stifle-dissent-rajasthan-high-court> accessed 4 September 2026, discussing Tejender Pal Singh v State of Rajasthan (Rajasthan High Court, 2024).
[24] ibid.
[25] Javed Ahmad Hajam v State of Maharashtra [2024] 3 SCR 317, 2024 INSC 187.
[26] SC Shields The Wire Editor’ (n 3).
[27] Assam Police FIR: The Wire’ (n 4).
[28] Sedition’ Case: Supreme Court Protects The Wire, Its Founding Editor from ‘Coercive Action’ By Assam Police’ (The Wire, 12 August 2025) <https://m.thewire.in/article/law/sedition-case-supreme-court-protects-the-wire-its-founding-editor-from-coercive-action-by-assam-police> accessed 4 September 2026.
[29] Repackaged Sedition: Supreme Court to Examine Section 152 of BNS’ (The Wire, 10 August 2025) <https://m.thewire.in/article/law/repackaged-sedition-supreme-court-to-examine-section-152-of-bns/amp> accessed 4 September 2026.
[30] Drishti Judiciary, ‘Section 152 of BNS’ <https://drishtijudiciary.com/current-affairs/section-152-of-bns> accessed 4 September 2026 (discussing Abhisar Sharma v Union of India).
[31] Law Commission of India (n 12).
