Section 152 BNS is sedition by another name, must not be used to stifle dissent: Rajasthan High Court

The Rajasthan High Court recently observed that Section 152 of the Bharatiya Nyaya Sanhita (BNS) that criminalizes acts endangering unity and integrity of India must not be used as a sword against legitimate dissent [Tejender Pal Singh vs State Of Rajasthan]..Justice Arun Monga said that the BNS provision has its genesis in Section 124A of the Indian Penal Code (IPC) which criminalises sedition and is even somewhat similarly worded to the offence originally introduced by the British.“It criminalizes acts or attempts that incite secession, armed rebellion, or subversive activities, or encourage separatist sentiments that threaten the country’s stability. Prima facie, it appears to be rather reintroducing section 124-A (sedition) by another name. It is rather debatable as to which of two provisions i.e. the one repealed (sedition) or the one reintroduced is more stringent,” the Court said..The single-judge made the observations while dealing with a Sikh preacher’s plea seeking quashing of a First Information Report invoking Section 152 and Section 197(1)(c) (imputations, assertions prejudicial to national integration) of BNS against him. The petitioner Tejender Pal Singh was booked in July this year after he posted a video on Facebook expressing sympathy with pro-Khalistan leader and Member of Parliament (MP) Amritpal Singh..On Section 152 BNS, the Court emphasized that only deliberate actions with malicious intent would fall under its ambit. It also observed that explanation to Section 152 BNS provides requisite safeguard by exempting that lawful criticism of government policies."Explanatory provision thus provides the balancing Act. It balances national security with individual rights, ensuring that lawful political dissent is not stifled under the pretext of maintaining sovereignty," the Court stated. .Nevertheless, the Court stressed that laws restricting speech must be narrowly tailored.There must be a direct and imminent connection between the speech and the likelihood of rebellion or secession to invoke such provisions, it said.“Legitimate dissent or criticism cannot be equated with sedition or anti-national acts," the Court added. It called for a careful application of Section 152 BNS in consonance with right to freedom of speech and expression."In cases involving Section 124A (sedition) of the repealed IPC, casual or rhetorical statements did not amount to sedition, unless, of course, they incite violence or public disorder. To my mind, a similar approach would apply to Section 152. Its broad phrasing necessitates careful application to prevent misuse or overreach."One must stay mindful that the provision is used as a shield for national security and not a sword against legitimate dissent, the Court underscored..On Section 197 BNS, which corresponds to Section 153B of IPC, the Court explained that the provision is aimed at preserving the harmony and cohesion of India's diverse society by criminalizing acts that foster enmity, hatred or disharmony among different groupsHowever, the judge clarified that if the offending act does not result in actual disharmony, the mere likelihood of such an outcome may not be sufficient to establish the intent in the absence of any other material.“For instance, in cases under Section 153A of the IPC (similar in nature), mere expression of unpopular or controversial views does not constitute an offense unless there is a clear intent or likelihood of inciting communal hatred,” it added..Speech that is critical but does not incite violence or hatred should not fall under the ambit of this section, the Court said..The Court also underscored that law enforcement authorities must exercise restraint and discretion to avoid stifling constructive dialogue or political dissent."Proper judicial oversight and clear guidelines on interpreting terms like "disharmony" and "ill-will" are essential to ensure the law achieves its intended purpose without becoming a tool for oppression or suppression of dissent,” the Court underscored..Enforcement authorities must exercise restraint and discretion to avoid stifling constructive dialogue or political dissent.Rajasthan High Court.Having analyzed the legal provisions, the Court then proceeded to examine the video uploaded by the accused. Considering that the comments were made in Punjabi, the Court said that the language which is rich and expressive can sometimes come across as offensive even if there is no malice on the part of the speaker.“Colloquial Punjabi, with its rich and expressive nature, can invariably come across as offensive, even when no malice or intent to offend is present. This characteristic stems from the inherent directness and vigor of the language, which may sometimes be misunderstood. However, for such expressions to be deemed criminal, there must be demonstrable public repercussions or substantive evidence indicating deliberate malicious intent (mens rea) to commit any public unrest or incite violence. Merely perceiving a statement as offensive is insufficient without a broader context or tangible harm to substantiate the claim.".It made this observation particularly in context of a comment made by the petitioner that, “tuhanu pehlan kehasiga ke desh kise de piyo da niga, har bande nu jawab dena aunda hai (I had told you earlier that the country does not belong to anyone's father, every person knows how to answer).”It only conveys that the country belongs to all its citizens and that there is equality of all citizens, the single-judge opined..After examining other comments made by the accused, the Court said they do not even attempt to excite secession or armed rebellion or subversive activities, or encourage feelings of separatist activities or endanger sovereignty or unity and integrity of India..Similarly, the Court found that the offence under Section 197(1) of BNS was not made out in the case. Thus, it quashed the FIR and all consequential proceedings against the accused..Senior Advocate Vikas Balia with advocate Nitin Goklani represented the petitionerPublic Prosecutor Vikram Singh Rajpurohit represented the State. .[Read Judgment]