The Supreme Court on Friday directed the Union government to respond to a petition challenging the constitutional validity of Section 152 of the Bharatiya Nyaya Sanhita, Live Law reported.

Section 152 of the criminal law pertains to acts that endanger India’s sovereignty, unity and integrity. It criminalises a wide spectrum of expressive conduct, including those who “purposely or knowingly” use words to “excite or attempt to excite” secession, rebellion or subversive activities.

The petition claimed that the provision effectively reintroduces the colonial-era sedition law.

A bench of Chief Justice BR Gavai and Justices K Vinod Chandran and NV Anjaria issued notice on the petition filed by SG Vombatkere, a retired major general in the Indian Army, and tagged it with another pending matter challenging the same provision.

In his petition, Vombatkere said that the court had in May 2022 ordered proceedings and criminal prosecutions for sedition under Section 124A of the erstwhile Indian Penal Code to be kept in abeyance, The Hindu reported.

However, Section 124A was slipped in again into the law in the guise of Section 152 when the Bharatiya Nyaya Sanhita replaced the Indian Penal Code in July 2024, the petitioner argued.

“The provision, in effect, reintroduces the colonial sedition law previously codified as Section 124A of the IPC, 1860, under a new nomenclature,” the newspaper quoted the petition as having said.

“Though the language is altered, its substantive content – criminalising vague and broad categories of speech and expression such as ‘subversive activity’, ‘encouragement of separatist feelings’, and acts ‘endangering unity or integrity of India’ – remains the same or is even more expansive,” it added.

The petition also said that Section 152 was violative of fundamental rights under Article 14, Article 19(1)(a) and Article 21 of the Constitution. While Article 14 pertains to equality, Article 19(1)(a) talks about free speech and Article 21 about right to life and personal liberty.

The “sweeping” language used in Section 152, “including phrases like encouraging feelings of separatist activities, failed the test of constitutional validity due to vagueness, overbreadth, chilling effect, disproportionate punishment, and absence of proximate nexus to public disorder”, it added.

New criminal laws

Three new criminal laws – the Bharatiya Nyaya Sanhita, 2023, the Bharatiya Sakshya Adhiniyam, 2023 and the Bharatiya Nagarik Suraksha Sanhita, 2023 – came into effect on July 1, 2024.

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

When introducing the Bharatiya Nyaya Sanhita, Union Home Minister Amit Shah had claimed that the new law “completely repealed” the sedition law under Section 124A of the Indian Penal Code.

“Everyone has the right to speak,” the home minister had said at the time. “We are completely repealing sedition.”

However, critics have argued that Section 152 of the BNS is a “new version” of a colonial-era sedition law, which had been misused to harass, intimidate and persecute human rights defenders, activists, journalists, among others, for exercising their right to freedom of expression.