ABSTRACT:
India’s criminal code had been augmented with the Bharatiya Nyaya Sanhita, 2023, hereinafter referred to as BNS 2023[1], which repealed the century old Indian Penal code, 1860, hereinafter referred to as the IPC 1860[2].This Paper critically examines Section 152 of BNS 2023, which is alleged to retain the essence of Section 124A of the IPC 1860. This is significant because of Section 124 A’snotorious track record regarding constitutional validity and history of being misused.
The constitutional validity of the Section 124A of IPC 1860 has been questioned and tested in numerous cases since its inception. The resemblance of the said section which appears in the newly added Section 152 of BNS 2023 – Acts endangering sovereignty, unity and integrity of India, is a topic of debate. This is because the Section 124A of IPC 1860 was put under judicial review just before the act was repealed and replaced with BNS 2023.
Although there are distinctions between the two provisions it is of debate that they are one and the same, with the government alleged to have had done this to escape the judicial review powers of the Supreme court, India’s Apex court. Understanding whether the new provision under the new criminal law needs to undergo the process of judicial review immediately or is it distinct and not connected with the legislative intent of the old criminal laws only if we understand the history and legislative intent behind both the provisions.
INTRODUCTION:
The impact of the colonial rule is still embedded within India’s political and administrative systems. Even after nearing eight decades of independence the Legal framework of India still comprises of laws which exists from the colonial era such as the The Indian Contract Act 1872[3], further in certain cases it is of debate that the structure of the laws that are newly enacted by the parliament also retain similar skeletal structures and essence of the legislative intent of the colonial laws.
The newly enforced criminal law of the nation, BNS 2023 has replaced the outdated IPC 1860, which was drafted by the first law commission headed by Thomas Babington Macaulay. The bill was introduced proposing to retire the century-old colonial law and to pivot and shift the focus of the criminal code from mere punitive measures to true sense of justice or Nyayam. It is a reformative step to ensure that our judicial system entails morality and justice over punishments.
Despite being passed by both the houses of the parliament and coming into effect as on 01.07.2024, the BNS 2023 Act has been facing a lot of chorus criticisms. It is of the opinion for many that the new act retains much essence of the old act IPC 1860, and that even-though the façade has been altered the core value of the Act remains unchanged from what was already present.
One among the provisions in BNS 2023 which has gained a lot of criticisms and being debated upon is the Section 152. This new addition has incited significant attention to itself and reads as follows:
“152. Act endangering sovereignty, unity and integrity of India.—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.
Explanation.—Comments expressing disapprobation of the measures, or administrative or other action of the Government with a view to obtain their alteration by lawful means without exciting or attempting to excite the activities referred to in this section do not constitute an offence under this section.”[4]
Although this section has been touted as a newly added provision which deals with the acts endangering the sovereignty, unity and integrity of India, it still encompasses the spirit and has its roots trace back to the infamous sedition clauses of section 124A of the original IPC 1860. It reads as follows:
“`124A. Sedition.—
Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.
Explanation 1.— The expression “disaffection” includes disloyalty and all feelings of enmity
.Explanation 2.— Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.
Explanation 3.— Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section.”[5]
The long-debated validity of the Section 124A of IPC 1860 has once again been brought into the light due to the introduction of the new Section 152 of BNS 2023 and their striking similarities. This also follows with the debate on the constitutional validity of the new provision due to its notable parallels with the Section 124A of IPC 1860.
To understand the legislative intent and motive of any provision or act it is imperative to investigate the travaux preparators and the legislative history of the provision. This would help us understand the vast distinctions which exist between the newly added provision dealing with the national security and the century-old colonial sedition laws.
[1]Bharatiya Nyaya Sanhita, 2023
[2]Indian Penal Code, 1860
[3]Indian Contract Act 1872
[4] Section 152, Bharatiya Nyaya Sanhita, 2023
[5]Section 124A, Indian Penal Code, 1860.