INTRODUCTION: THE ILLUSION OF DECOLONIZATION AND THE ENDURANCE OF STATE SURVEILLANCE
The Union legislature has characterised the legislative shift from the Indian Penal Code, 1860(IPC) to the Bharatiya Nyaya Sanhita, 2023 (BNS) as a significant step towards decolonising India’s criminal justice environment.[1] At the heart of this de-colonial narrative was the explicit abrogation of Section 124A of the IPC which criminalized “Sedition” – a notorious statutory weapon employed by the British Raj to stifle political opposition.[2] However, scholarly analysis suggests that the joyful language accompanying this deletion conceals a more nuanced and potentially regressive reality. But the subject matter of the offence has not been extinguished; it has been structurally re-engineered, expanded and re-located under Chapter VII of the BNS as Section 152, which criminalizes “acts endangering sovereignty, unity and integrity of India.”[3] It is within this volatile paradigm of statutory transition that Sarkar’s Commentary on the Bharatiya Nyaya Sanhita emerges as an indispensable work of doctrinal and structural analysis. This review provides a scholarly and careful analysis of the treatment of the profound alteration of political speech crimes in India in Sarkar’s Commentary. The central thesis of this review is that while Sarkar provides an unprecedented, meticulous textual roadmap of the transition, he suffers from an academic tension: he vacillates between a traditional, literal reading of state authority and the urgent, contemporary demands of constitutional civil liberties. This analysis will then discuss whether the language manages to uncover the systematic legislative ‘loopholes’ and ambiguities purposely built into Section 152, or whether it unwittingly lends support to the extension of the state’s punitive net.
THE HISTORICAL TRAIL: FROM COLONIAL SEDITION TO CONTEMPORARY SOVEREIGNTY OFFENCES
To appreciate the analytical depth that Sarkar’s Commentary demands, one must trace the historical evolution of the laws of state protection in India. Macaulay’s initial draft of 1860 did not have section 124A of the IPC. It was added in 1870 to repress the Wahabi movement, and later the swelling tide of the Indian national movement.[4] Its basic wording condemned any speech or conduct that produced or sought to bring “hatred or contempt” or stirred “disaffection” toward the Government established by law.[5]The statutory transformation enacted by Section 152 of the BNS alters the language and the original target of protection. The new section omits the words “Sedition” and “Government established by law” entirely. Instead, it criminalizes activities that harm the “sovereignty, unity and integrity of India”.[6]Sarkar traces this process with meticulous care, pointing out the modifications in successive draft laws. Yet, a closer reading of this section of the comments indicates a potential for deeper academic examination overlooked. The editors see the movement from preserving the government to protecting the state (or the integrity of the nation) as a progressive, nationalist development. But in constitutional theory, this move broadens the net of punishment. A well-established democratic right is criticism of a government. An accusation of “endangering the sovereignty or integrity of the nation” pushes the discussion into the area of existential threat, where constitutional courts have typically been more receptive to the executive.[7]
[1] Ministry of Home Affairs, Government of India, Report of the Parliamentary Standing Committee on Home Affairs on the Bharatiya Nyaya Sanhita, 2023, 2.1.
[2]AbhinavChandrachud, Sedition, Censorship, and the Constitution, 14 Nat’l L. Sch. India Rev. 112, 115 (2002).
[3] The Bharatiya Nyaya Sanhita, 2023, s. 152, No. 45, Acts of Parliament, 2023 (India).
[4] K.M. Munshi, The Indian Penal Code: A Historical and Critical Introduction 84 (1942).
[5] Indian Penal Code, 1860, s. 124A (repealed).
[6] The Bharatiya Nyaya Sanhita, 2023, s. 152.
[7]UpendraBaxi, The Crisis of the Indian Legal System 145 (1982).