New Delhi: Emphasising that sedition law should be used as a shield for national security and not as a sword against legitimate dissent, the Rajasthan High Court ruled earlier this month that Section 152 (endangering sovereignty, unity and integrity of India) of the Bharatiya Nyaya Sanhita (BNS) requires a deliberate action with malicious intent.
By way of a 32-page ruling, a bench of Justice Arun Monga said, “I am thus of the mind that a high threshold of intent (mens rea), ensuring that only deliberate actions with malicious intent would fall under its ambit. Thus the provision (section 152 of BNS) has to be read and meant and interpreted in a way that it mandatorily requires that the act must be committed purposely or knowingly i.e. Mens Rea (Intent).”
In doing so, the court also flagged the re-entry of Section 124A (sedition) of the erstwhile Indian Penal Code and said, “Prima facie, it appears to be rather reintroducing section 124-A (sedition) by another name. It is rather debatable as to which of the two provisions, i.e. the one repealed (sedition) or the one reintroduced, is more stringent.”
Union Home Minister Amit Shah had announced in Parliament in August last year that the offence of sedition would be “completely repealed” in the BNS, which was soon to be proposed in Parliament at the time.
“The Britishers had made a rule on sedition to save their administration. This government has taken a historic decision to completely repeal the sedition law. Yaha loktantra hai, sabko bolne ka adhikar hai (this is a democracy where everyone has the right to speak),” Shah had said while introducing the BNS Bill in Lok Sabha.
Moreover, a challenge to the constitutionality of the sedition provision has been pending before a five-judge bench of the Supreme Court since 12 September, 2023. The first plea challenging the provision’s legality, however, dates back to 2021.
Nitin Goklani, one of the petitioner’s lawyers in the case, told ThePrint, “The question of the legality of Section 124A, which corresponds to Section 152 of the BNS, has long been pending before the Supreme Court. Even in Parliament, this provision was brought in without any debate. All the precedents we relied upon in this case related to the offence of sedition under the IPC. However, I believe this is the first-of-its-kind order on Section 152, which emphasises the constitutional values of freedom.”
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BNS & the offence of sedition
Section 152 of the BNS states, “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 mean, 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.”
Simply put, the provision stipulates life imprisonment for up to seven years, along with a fine, for persons attempting to initiate secession, armed rebellion, or separatist activities that endanger India’s unity and integrity.
It is analogous to the offence of sedition under Section 124A of the erstwhile Indian Penal Code, 1860 and retains the explanation of that provision, which specifies that comments expressing disapproval of measures or other government actions, seeking to alter them by “lawful means” without exciting or attempting to excite activities given under this section, won’t amount to sedition.
However, while the previous provision under the IPC had fixed a punishment of up to three years for the offence, the updated provision under the BNS increased the upper limit to a period of seven years.
Assertions prejudicial to national integration
On the other hand, Section 197 of the BNS punishes imputations and assertions prejudicial to national integration with up to three years of imprisonment or a fine, or both.
The provision also pinpoints specific instances, like making such words, signs, or visible or electronic representations of the same punishable. It prohibits assertions, pleas, appeals, or counsel concerning the obligations of individuals based on their membership in a particular religious, racial, linguistic, regional, caste, or community group, if these acts cause, or are likely to cause disharmony, enmity, hatred or ill-will.
Similarly, it also prevents persons of any religious, regional, racial, or other groups from being denied or deprived of their rights as Indian citizens. No assertion can be made that causes disharmony or feelings of enmity, hatred, or ill will between people, it says.
However, under this provision, a greater punishment is accorded for those who commit such offences in “any place of worship” or in assemblies engaged in the performance of religious worship or religious ceremonies, as imprisonment of up to five years is stipulated, along with fine.
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The present case
In Tejinder Pal Singh vs State of Rajasthan, a complaint was filed by an Indian citizen, Lakhvinder Singh, against Sikh preacher Tejinder Pal Singh, saying that he posed a threat to India’s integrity and sovereignty.
The complaint accused him of offences under Sections 152 and 197(1)(c) of BNS.
The complaint was filed In July this year against the preacher for posting an audio-video recording on his Facebook account, where he reportedly expressed sympathy for Amritpal Singh, a Lok Sabha MP from Khadoor Sahib constituency, who is currently lodged in an Assam jail.
According to the complaint, Tejinder’s speech was “anti-national”, advocated for “Khalistan”, and was deeply offensive to Lakhvinder’s religious sentiments.
Lakhvinder’s case was that this could incite public unrest. He also added that the preacher maintained association with “pro-Khalistan” people and was seen displaying “Khalistan” flags at public events.
The petitioner, however, said that he was a Sikh preacher, officially appointed by the Sikh Gurudwara Prabandak Committee, Amritsar, as a coordinator of the Dharam Prachaarak Committee in Rajasthan. He contended that Lakhvinder, the complainant, had been planted by a rival from another gurudwara to “exploit state machinery” to “settle personal scores”, adding that the allegations were baseless and borne out of a vendetta.
His lawyer, senior advocate Vikas Bhalla, told the court that the FIR was false and frivolous and that the two other false FIRs had been filed by him previously due to this animosity.
Adding that a look at the video shows that Tejinder never demanded a separate state or incited violence, the lawyer contended that he only criticised political figures in it.
What the court decided
In its December 16 ruling, the Rajasthan High Court traced the origins of the sedition law, adding that it was a colonial-era “invention”, introduced in 1870, for punishing acts of hatred, contempt, or disaffection towards “Her Majesty or the Crown”.
Pointing out that the offence of sedition under 124A of IPC has “been done away with in the BNS”, the court pointed out that a new “somewhat similarly worded” provision was brought in by lawmakers in Parliament, which criminalises acts or attempts to incite secession, armed rebellion and other such activities.
The court also said that the requirement of mens rea (guilty mind) was mandatory for the commission of this offence. “Given India’s diversity and history of secessionist movements, the legislature aims to curb acts that could fragment the country,” it added.
However, it pointed out that since the explanation to Section 152 specifically exempts “awful criticism of government policies, aimed at reform or alteration through lawful means”, the preacher’s actions will not fall under this provision’s ambit.
Saying that this “explanation” serves as a “safeguard”, the court said it also protects expressions disapproving of government policies as long as their criticism doesn’t incite rebellion or separatism. “This distinction has been carved out for preserving lawful dissent and democratic freedoms, particularly the freedom of speech and expression.”
Underlining that there must be “a direct and imminent connection between the speech and the likelihood of rebellion or secession to invoke such provision”, the court ruled that legitimate dissent or criticism cannot be equated with sedition or anti-national acts.
The court quashed the FIR against preacher Tejinder, while adding that the continuance of the complaint and the resultant proceedings against him amounted to an abuse of the process.
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