SILENCING DISSENT OR SAFEGUARDING SOVEREIGNTY? WHETHER THE VAGUENESS OF SECTION 152 OF THE BHARATIYA NYAYASANHITA, 2023, CREATES AN UNCONSTITUTIONAL CHILLING EFFECT ON FREE SPEECH

INTRODUCTION

The revocation of the colonial offence of sedition under Section 124A of the Indian Penal Code, 1860, was widely welcomed as an important step toward strengthening democratic freedoms in India. Nonetheless, the enactment of Section 152 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which criminalises acts endangering the sovereignty, unity and integrity of India, has generated a fresh constitutional debate. Even though the legislature has removed the word “sedition” from the statute book, critics argue that the new provision retains many of the same concerns that surrounded its predecessor, while introducing broader and less precisely defined expressions such as “subversive activities” and “encourages feelings of separatist activities.” These concerns have already given rise to several constitutional challenges before the Supreme Court and to judicial caution against the use of such provisions to suppress legitimate criticism of the government.

This constitutional uncertainty stems from the need to reconcile two equally important objectives. On one hand, the state has a legitimate interest in protecting national sovereignty, territorial integrity, and public order. On the other, the Constitution guarantees every citizen’s fundamental right to freedom of speech and expression under Article 19(1)(a), subject only to the reasonable restrictions enumerated in Article 19(2). A criminal provision regulating speech must be drafted with sufficient precision to ensure that only conduct falling within these limitations attracts penal consequences.

This article argues that while Section 152 pursues a constitutionally legitimate objective, its broad and undefined terminology creates legal uncertainty that risks a chilling effect, discouraging lawful political criticism and democratic dissent. Unless the provision is interpreted consistently with the principles established in Kedar Nath Singh v. State of Bihar and Shreya Singhal v. Union of India,¹ its effect on protected speech may extend beyond the restrictions permissible under Article 19(2). This article first examines the statutory framework of Section 152, then analyses its constitutional implications through the doctrines of vagueness and chilling effect, and finally considers whether judicial interpretation or legislative reform is necessary to preserve the balance between national security and constitutional liberty.

I. FROM SEDITION TO SECTION 152: HAS THE LAW REALLY CHANGED?

The enactment of the Bharatiya Nyaya Sanhita, 2023 marked a notable overhaul of India’s criminal law framework. One of its most publicised reforms was the repeal of Section 124A of the Indian Penal Code (IPC), 1860, a provision long criticised as a colonial instrument used to suppress political dissent. The government has described the Bharatiya Nyaya Sanhita as a modern criminal code designed to reflect constitutional values while also strengthening the protection of India’s sovereignty and security.

Parliament introduced Section 152 to replace the offence of sedition; the new provision criminalises acts that intentionally or knowingly endanger the sovereignty, unity, and integrity of India through spoken or written words, signs, electronic communication, financial means, or other forms of expression.²

At first glance, the replacement appears to signal a departure from the colonial legacy of sedition. Unlike Section 124A of the IPC, which focused on bringing the government into “hatred or contempt” or exciting “disaffection,” Section 152 shifts the focus toward protecting the sovereignty and integrity of India. This difference is constitutionally significant, because democratic governments are expected to tolerate criticism, whereas threats directed at the nation’s territorial integrity or constitutional order may lawfully attract criminal sanction under Article 19(2) of the Constitution.³

However, closer examination reveals that the reform may be less meaningful than it initially appears. Section 152 contains broad expressions such as “subversive activities,” “encourages feelings of separatist activities,” and acts that “endanger the sovereignty, unity and integrity of India.” While the objective of safeguarding national security is undoubtedly legitimate, the statute does not define these key expressions or establish clear thresholds for criminal liability. This absence of statutory definition leaves considerable discretion to investigating agencies and courts in determining what conduct falls within the scope of the offence.

The importance of this drafting choice cannot be overstated. Criminal statutes regulating speech must be framed with precision, because individuals should be able to determine with reasonable certainty whether their conduct is lawful. Unclear terminology creates the risk that citizens might refrain from expressing lawful political opinions, criticising public officials, or participating in democratic debate, out of fear that their own words could later be interpreted as “subversive” or “separatist.” The question surrounding Section 152, therefore, is not whether the state may protect national sovereignty, but whether the language employed by Parliament provides sufficient legal certainty to ensure that only unprotected speech is criminalised. This issue forms the central focus of the present analysis.⁴

II. THE CONSTITUTIONAL PROBLEM: VAGUENESS AND THE CHILLING EFFECT

The main constitutional concern surrounding Section 152 of the Bharatiya Nyaya Sanhita, 2023⁵ is not its objective of protecting India’s sovereignty, but the breadth and obscurity of the language used to achieve that objective. In a constitutional democracy, laws restricting freedom of speech must be drafted with sufficient transparency to let individuals understand what conduct is prohibited. Criminal provisions containing undefined and vague expressions create uncertainty, increasing the possibility of arbitrary enforcement and inconsistent judicial interpretation. Such uncertainty becomes particularly problematic where political speech is involved, as individuals may refrain from exercising their constitutional rights for fear of prosecution.

The Supreme Court has consistently recognised that freedom of speech and expression under Article 19(1)(a) forms one of the foundations of India’s constitutional democracy.⁶ While Article 19(2) permits reasonable restrictions in the interest of the sovereignty, integrity, and security of the State and public order, those restrictions must remain narrowly tailored and constitutionally justified. Accordingly, a criminal law regulating speech cannot merely pursue a legitimate objective; it must also define prohibited conduct with sufficient precision to prevent misuse.

This principle was recognised in Shreya Singhal v. Union of India,⁷ where the Supreme Court invalidated Section 66A of the Information Technology Act, 2000, because its indeterminate terminology failed to provide clear legal standards. The Court observed that an uncertain criminal provision may produce a “chilling effect,” discouraging citizens from engaging in lawful expression out of fear of legal consequences. This doctrine assumes particular significance in the context of Section 152, whose vague expressions — including “subversive activities” and “encourages feelings of separatist activities” — provide limited guidance regarding the scope of criminal liability.

A similar constitutional safeguard emerged in Kedar Nath Singh v. State of Bihar, where the Supreme Court upheld the validity of the sedition law only after restricting its application to speech involving incitement to violence or public disorder. The Court made clear that strong criticism of the government, however unpopular or harsh, remains constitutionally protected unless it creates or is intended to create public disorder. Similarly, in Balwant Singh v. State of Punjab,⁸ the Court held that the mere raising of provocative slogans, without any accompanying incitement to violence or disturbance of public order, did not amount to a criminal offence. These decisions demonstrate that constitutional protection extends not only to agreeable speech but also to unpopular and dissenting opinions.⁹

When viewed against these principles, Section 152 raises significant concerns regarding legal certainty. The absence of statutory definitions may allow enforcement authorities to interpret political criticism, peaceful protest, or controversial public discourse as “subversive” or “separatist,” despite the absence of any incitement to violence. Such uncertainty risks extending criminal liability beyond the constitutional limits established by the Supreme Court, thereby discouraging legitimate democratic participation. In sum, the central constitutional issue is not whether the state may protect national sovereignty, but whether Section 152 employs language sufficiently precise to ensure that only speech falling outside the protection of Article 19(1)(a) is subjected to criminal sanction.

III. RECONCILING NATIONAL SECURITY WITH FREEDOM OF SPEECH

The constitutional concerns surrounding Section 152 should not be understood as denying the state’s authority to safeguard India’s sovereignty, unity, and integrity. National security remains a legitimate constitutional objective, and Article 19(2) expressly permits reasonable restrictions on freedom of speech in the interest of the sovereignty and integrity of India.¹⁰ The challenge, however, lies in ensuring that such restrictions are implemented through laws that are precise, proportionate, and compatible with constitutional guarantees.

One possible means of preserving the constitutionality of Section 152 is through judicial interpretation. The Supreme Court adopted this approach in Kedar Nath Singh,¹¹ where it limited the application of the former sedition provision to cases involving incitement to violence or public disorder. A similar interpretive approach could ensure that Section 152 applies only to speech that poses a real and proximate threat to the sovereignty or integrity of India, rather than to speech that criticises government policy or advocates unpopular political views. Such an interpretation would preserve the State’s ability to address genuine threats while also protecting the democratic values embedded in Article 19(1)(a).

However, judicial interpretation alone may not eliminate the uncertainty created by the language of Section 152. The legislature should therefore consider introducing statutory definitions for expressions such as “subversive activities” and “encourages feelings of separatist activities.” Clear legislative guidance would reduce the scope for arbitrary enforcement, enhance legal certainty, and ensure that individuals are able to understand the boundaries of lawful political expression. Such reforms would also reinforce public confidence that the provision is directed against genuine threats to national security rather than legitimate democratic dissent.

Ultimately, the constitutional legitimacy of Section 152 will depend not only on its objectives but also on its application.¹² A democratic society such as India must possess an effective legal mechanism to protect its sovereignty while simultaneously preserving the freedom to question, criticise, and debate governmental action. These objectives are not mutually exclusive; rather, they are complementary principles that together strengthen India’s constitutional democracy.

CONCLUSION

The enactment of Section 152 of the Bharatiya Nyaya Sanhita, 2023¹³ reflects Parliament’s attempt to protect India’s sovereignty while replacing the colonial offence of sedition. However, as this article has argued, the provision’s broad and undefined language raises valid constitutional concerns regarding legal certainty and freedom of speech.

The Supreme Court’s decisions in Kedar Nath Singh, Shreya Singhal, Balwant Singh, and S. Rangarajan¹⁴ show that restrictions on speech must remain narrowly tailored and closely connected to incitement to violence or public disorder. The constitutionality of Section 152 will therefore depend upon its careful interpretation and application. Resolving this ambiguity through legislative amendment or judicial interpretation would reduce the risk of arbitrary enforcement while preserving both national security and the constitutional guarantee of free speech.¹⁵

ENDNOTE(S):

1. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Shreya Singhal v. Union of India, (2015) 5 SCC 1.
2. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955. (Note: this citation may be better replaced with a direct citation to the Bharatiya Nyaya Sanhita, 2023, § 152, since this footnote supports a description of the statutory text itself — please verify against your source.)
3. INDIA CONST. art. 19(2).
4. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
5. The Bharatiya Nyaya Sanhita, No. 45 of 2023, § 152 (India).
6. INDIA CONST. art. 19(1)(a), art. 19(2).
7. Shreya Singhal v. Union of India, (2015) 5 SCC 1.
8. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Balwant Singh v. State of Punjab, (1995) 3 SCC 214.
9. Shreya Singhal v. Union of India, (2015) 5 SCC 1; INDIA CONST. art. 19(1)(a), art. 19(2).
10. INDIA CONST. art. 19(2).
11. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
12. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574; INDIA CONST. art. 19(1)(a), art. 19(2).
13. The Bharatiya Nyaya Sanhita, No. 45 of 2023, § 152 (India).
14. Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955; Shreya Singhal v. Union of India, (2015) 5 SCC 1; Balwant Singh v. State of Punjab, (1995) 3 SCC 214; S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.
15. INDIA CONST. art. 19(1)(a), art. 19(2).

BIBLIOGRAPHY

Primary Sources

Legislation

Bharatiya Nyaya Sanhita, No. 45 of 2023 (India).

Constitution of India.

Indian Penal Code, No. 45 of 1860 (repealed 2023).

Cases

Balwant Singh v. State of Punjab, (1995) 3 SCC 214.

Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.

S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574.

Shreya Singhal v. Union of India, (2015) 5 SCC 1.

Secondary Sources

Law Commission of India, Consultation Paper on Sedition (2018).

Government of India, The Bharatiya Nyaya Sanhita Bill, 2023: Statement of Objects and Reasons (2023).

Gautam Bhatia, Offend, Shock, or Disturb: Free Speech under the Indian Constitution (Oxford University Press, 2016).

H.M. Seervai, Constitutional Law of India: A Critical Commentary (4th ed., Universal Law Publishing 1996).