The Editors Guild of India on Monday sought a thorough review of the new criminal laws to ensure they are not misused to “threaten and harass” journalists for their work.

On July 1, three new criminal laws – the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Sakshya Adhiniyam, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023 – came into effect.

They replaced the Indian Penal Code, 1860, the Indian Evidence Act, 1872 and the Code of Criminal Procedure, 1973.

In a letter to Union Home Minister Amit Shah, the guild pointed out that provisions of the criminal law dealing with offensive and defamatory words have been used against journalists under successive governments.

“Journalists, as part of their professional duty, are meant to report on sensitive issues, throw a light on uncomfortable facts and speak truth to power,” the letter read. “They literally have to play with fire as part of their professional work.”

The guild listed the provisions under the Bharatiya Nyaya Sanhita and Bharatiya Nagarik Suraksha Sanhita that are particular points of concern for journalists.

It noted that the offence of sedition under the Indian Penal Code section 124-A has been reintroduced under the Bharatiya Nyaya Sanhita as section 152 that punishes “acts endangering sovereignty, unity and integrity of India”.

The guild said that the scope of physical conduct that is punishable under the new law is “clearly broader” than Indian Penal Code section 124A as it also covers the use of financial means to achieve certain alleged objectives.

It further said that the section under the new law dealing with imputations prejudicial to national integration (197) corresponds with Indian Penal Code section 153B but with important additions.

The new law criminalises any person who “makes or publishes false or misleading information, jeopardising the sovereignty, unity and integrity or security of India”, the guild noted. However, this is a very broad category of punishable conduct, it said.

“While there may be some means to determine ‘false’ information, there is no arbiter of what may be ‘misleading’, and absolutely no objective means to determine when any purportedly false or misleading information ‘jeopardises’ the unity and integrity or security of India,” said the guild. “What makes the provision even more problematic is that it is classified as a cognisable or non-bailable offence.”

Regarding the introduction of offences related to organised crime and terrorism, the Editors Guild said that the potential of these provisions being misused to target journalists has become clear in the past decade.

“The terrorism offence is modelled on existing UAPA [Unlawful Activities Prevention Act] offences, which have been used with alarming alacrity against journalists,” said the guild.

On the matters of custody and bail under the Bharatiya Nagarik Suraksha Sanhita, the guild said there is a “marked change” in the length of possible pre-trial incarceration. It noted that the language regarding the maximum period of police custody allowed under the law is also unclear.

It also stated that provisions regarding default bail in cases where persons have spent more than half the maximum jail sentence as an undertrial have been changed to make the “beneficial rule practically redundant”.

In view of these concerns, the guild said that any criminal complaint against a journalist for their work must be reviewed by a high-ranking police officer and brought to the notice of the Press Council of India before a first information report is registered.

It said this would provide clarity on whether “further investigation of the complaint/information would be an unreasonable burden on the freedom of profession and freedom of expression of the alleged offender as a member of press”.

The Editors Guild of India also sought time from the Union home ministry for a constructive conversation about these concerns as they can “pose grave danger” to press freedom.

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