In July 2024, a Sikh preacher named Tejender Pal Singh posted a Facebook video sympathising with a jailed separatist leader and, in response, was jailed under Section 152 of the Bharatiya Nyaya Sanhita. Later, the Rajasthan High Court quashed the case and noted that Section 152 was described as the end of colonial-era sedition, yet its ambiguous nature raised questions about whether it reintroduced Section 124A of the old Indian Penal Code, just with “a different name”. Within 5 months of its taking effect, the very provision of the BNS, which presented itself as a new era, was compared to the regressive provision.
The article explores whether a law buried by Parliament keeps resurfacing under a new name. Sec 124A produced 47 cases between 2014 and 2021, with a conviction rate under four per cent, indicating that the old law worked mainly through arrests rather than trials. There are striking similarities between the old IPC section and BNS, raising an alarming question about ambiguity and misuse. The question is not whether India removed sedition from its statute book; it is whether removing the word was ever going to be enough.
THE COLONIAL PROVISION AND ITS CONSTITUTIONAL LIMIT
Section 124A was inserted into the IPC in 1870, eight years after the code came into effect. The provision was specifically targeted at criminalising political dissent against the colonial government. This the same provision that convicted revolutionary dissidents such as Bal Gangadhar Tilak in 1897 and 1908, and Mahatma Gandhi, who stood trial in 1922 for his writing in Young India. For most of the colonial period, the provision worked to punish criticism of British rule as a crime against the state.
The provision was retained by India after independence, but the question of its constitutionality reached the Supreme Court in Kedarnath Singh v. State of Bihar. The court upheld Sec 124A, but with a narrow remark: Disaffection with the government, however sharply expressed, was not by itself sedition. The provision could only be applied to instances where speech incited violence or public disorder. This became the baseline for any sedition-like provisions under Article 19(1) (a), where criticism is protected, but incitement to violence is not.
However, statistics show that this baseline existed only in theory. NCRB data record 475 sedition cases registered nationwide between 2014 and 2021. A separate NCRB count for the period of 2015 to 2020 puts the number of convictions at twelve, out of 356 cases and 548 arrests, a conviction rate under four per cent. Senior counsel told the Supreme Court in 2022 that roughly 13,000 people remained jailed under the provision at the time. Statistics like these emphasise that law is clearly not working as intended and is rather being misused to arrest and detain, with the courtroom almost beside the point.
On 11 May 2022, the Supreme Court responded by staying all proceedings under Section 124A. In S.G. Vombatkere v. Union of India, a bench led by then Chief Justice N.V. Ramana directed that no fresh FIRs be registered and that pending trials be kept in suspension while the government reconsidered the law. Rather than defending the provision, the government repealed it through the BNS.
SECTION 152: A NEW LABEL
Section 152 of the Bharatiya Nyaya Sanhita states that whoever, “purposely or knowingly,” by words spoken or written, by signs, by visible representation, by electronic communication, or by use of financial means, “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,” commits an offence punishable with life imprisonment or up to seven years.
Analysing the provision in comparison to Section 124A, three changes stand out, but none of them narrow down the provision or solve the problem of ambiguity.
The body of the offence has shifted from “the government established by law” to the “sovereignty or unity and integrity of India.” A government is a specific, identifiable institutional body. Sovereignty and integrity are constructs, and constructs are harder to bound. Vombatkere’s petition challenging the section argues that the words “sovereignty,” “unity,” and “integrity” carry no fixed legal meaning elsewhere in Indian legislation, which leaves them open to deliberations and misuse by designated authorities.
The provision adds “subversive activities” as a new category, undefined anywhere in the BNS. An undefined term carrying a sentence of up to life imprisonment is precisely the kind of vagueness and uncertainty the Supreme Court struck down in Shreya Singhal v. Union of India, when it removed Section 66A of the Information Technology Act from the books.
Most importantly, the statute drops the precedent drawn from the Kedarnath case. Kedarnath laid down a concept of incitement-to-violence requirement into Section 124A through judicial interpretation, but there is nothing of that sort explicitly mentioned in the Article. 152. The Rajasthan High Court in Tejender Pal Singh v. State of Rajasthan tried to supply it, holding that the words “purposely or knowingly” demand proof of malicious intent, and went on to quash the FIR against a Sikh preacher booked under Section 152 for a Facebook post sympathising with a jailed separatist leader, since the State could show no such intent. The outcome was right. But it took a High Court adding the requirement on a case-by-case basis, rather than Parliament writing it into the statute.
On 8 August 2025, a three-judge bench led by Chief Justice B.R. Gavai issued notice on a petition by Major General S.G. Vombatkere arguing that Section 152 is sedition repackaged, and tagged it with the still-pending challenge to Section 124A. Four days later, a separate bench heard a petition by the Foundation of Independent Journalism and Siddharth Varadarajan of The Wire, who faced an FIR under Section 152 in Assam over a published article. Senior advocate Nitya Ramakrishnan, appearing for the petitioners, told the Court that the BNS had reintroduced the provision while a challenge to Section 124A’s constitutionality was already pending before a larger bench. Justice Joymalya Bagchi asked whether the “potentiality of abuse” of a vaguely worded penal provision could itself be grounds to strike it down, and the Court granted the petitioners protection from arrest while the matter is heard.
WHERE SECTION 152 FAILS THE KEDARNATH CASE STANDARD
The Kedarnath case laid down the principle of a close link between speech and actual incitement to violence or public disorder before it could be restricted under Article 19(2). Comparing these requirements, there is a necessity of radical changes in Article 152 that don’t get resolved by quashing an FIR; there needs to be fundamental changes in the statute.
There is no clear distinction of intent; Section 152 requires that the act be done “purposely or knowingly.” Knowingly publishing an interview with a separatist leader, or knowingly writing in support of greater autonomy for a region, satisfies that wording without any intent to provoke violence. The Rajasthan High Court fixed this problem for one specific case by reading a “malicious intent” requirement into the law, but the statute says no such thing, which can result in another court reading things differently.
Section 152 extends liability to acts done “by use of financial means.” Section 124A, which it replaced, had no similar provision. This means someone who funds an organisation that later gets labelled separatist could be prosecuted under this section, even if they had no idea the money would be used to support anything violent. Kedarnath only allows restrictions on speech that connects to violence
Until the Supreme Court rules on the pending challenges, each High Court will interpret Section 152 differently ,with no guarantee the next one reads in the same protections the Rajasthan court did.
THREE AMENDMENTS
Even if the Supreme Court narrows Section 152 through judicial interpretation, it doesn’t solve the underlying problem. Despite there being efforts to narrow down, making the law less ambiguious but, it still led to several cases being filed between 2014 and 2021, leading to minimal conviction rates. The problem of wrongful arrests cannot be solved by judicial interpretations because it only helps defendants fight after they’ve already been arrested. There is a fundamental requirement for a change in the statute, which would help cut down on misuse and arbitrary arrests.
There is a need for a mens rea requirement to be written into section 152, and not be left to any court to infer. The provision must require the prosecution to prove that the accused intended to incite violence or armed rebellion, and not merely that they intended to make the speech. This will lead to uniform application across all courts, rather than leaving the next court up to deliberation while deciding a matter.
A requirement for a statutory definition of “subversive activities”, tied to specific conduct such as funding or materially supporting an organisation engaged in violence, on the model of how the Unlawful Activities (Prevention) Act, 1967 defines “unlawful activity.” An undefined term carrying a life sentence has no place in a legal system that claims to have moved past colonial-era sedition law.
The third is a requirement of prior judicial approval before arrest under Section 152, similar to the sanction requirement under Section 45 of the UAPA. A magistrate would need to find, on the material already collected, a prima facie case that meets the mens rea standard before police could make an arrest.
None of these changes would weaken the State’s ability to prosecute genuine incitement to secession or armed rebellion; they would simplify the process and prevent arbitrary arrests. The changes would require the State to prove it, before arrest as well as at trial, rather than relying on broad language to do the work that evidence should.
CONCLUSION
The word “sedition” was removed from the statute, but everything that made it up remained. Section 152 of the Bharatiya Nyaya Sanhita carries the same undefined terms, the same absence of a statutory intent requirement that made Section 124A constitutionally fragile. Whatever the outcome of that challenge, judicial narrowing alone has not historically been sufficient to prevent the misuse of sedition-like provisions. India’s legislature enacted the BNS as a reform. The test of reform is not whether the word sedition appears in the statute but whether the law, as it operates in practice, protects the freedom of speech it was always supposed to leave untouched.
Author: Anjika Raj
Juris Centre 