The Section That Replaced Sedition

Facts. S.G. Vombatkere v. Union of India came before the Supreme Court on a challenge to section 124A, while the Government informed the Court that it proposed to reconsider the provision.

Held. On 11 May 2022 the Court directed that all proceedings under section 124A be kept in abeyance while that reconsideration took place. A statute in force was, in effect, suspended, and the order is without real precedent.

The provision itself

Section 152. "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."

The 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."

Broken down: how section 152 differs from section 124A

The change of target is the most important line in the comparison. Section 124A protected the Government; section 152 protects the State. Criticism of a Government, however fierce, is not on its face within section 152 at all, because a Government is not the sovereignty, unity or integrity of India.

The mental element is now on the face of the statute. "Purposely or knowingly" does what Kedar Nath Singh had to read in, so the limit is no longer a gloss that a police station may not know about.

Two of the means are new. Electronic communication is added, and so is "use of financial mean", which reaches funding rather than speech.

But the maximum has more than doubled, from three years to seven, alongside imprisonment for life which both sections carried.

The Explanation is narrower than it looks

It protects comments expressing disapprobation of Government measures or action. It requires the comment to be made with a view to obtaining their alteration by lawful means, and it falls away where the comment excites or attempts to excite the activities the section names.

Note what it does not say. Section 124A had three Explanations, one of which made clear that disaffection includes disloyalty and all feelings of enmity, and two of which protected criticism. Section 152 has one.

"Subversive activities" is not defined. Neither is "separatist activities". These are the two expressions on which the section will be litigated, because they are broad, undefined, and not obviously confined by the requirement of exciting or encouraging.

A worked example

A columnist writes that a State's forest policy is destroying tribal livelihoods, that the Union Government is complicit, and that the people of the region should refuse to cooperate with the administration until the policy is withdrawn.

Would this have been sedition under section 124A? On the section's bare words, arguably yes, because it invites contempt for the Government. On Kedar Nath Singh it is not, because there is no intention or tendency to create disorder or incitement to violence.

Is it within section 152? Almost certainly not, and for a better reason. The target of the section is the sovereignty, unity and integrity of India, not the Government. A call to withdraw cooperation from an administration until a policy changes is not exciting secession, armed rebellion or subversive activities.

Add one fact. Suppose the same columnist writes that the region should separate from India and form its own State, and urges readers to support an armed group pursuing that aim. Now the section is engaged: this is exciting secession and encouraging feelings of separatist activities, done knowingly, and the maximum is imprisonment for life.

Add another. Suppose the columnist does not write at all, but transfers money to that armed group. "Use of financial mean" is one of the means named in section 152, so the section reaches the funder without any speech at all.

Take the facts of Balwant Singh. Two men raise separatist slogans twice in a street; nobody responds and nothing happens. Under section 152 the question would be whether they excited or attempted to excite secession, or encouraged feelings of separatist activities. The reasoning of Balwant Singh transfers: slogans that evoke no response and cause no disturbance did not excite anything, though the wording of the new section makes the "attempts to excite" limb a harder answer than it was.

What beginners get wrong

Saying sedition has been retained under a new number. It has not. Section 152 is a different offence with a different target, a stated mental element and a heavier maximum.

Saying sedition has simply been abolished. That is also wrong. The conduct at the serious end of section 124A, as limited by Kedar Nath Singh, is within section 152, and the punishment for it has increased.

Thinking Kedar Nath Singh is now irrelevant. Its reasoning about the difference between disaffection towards a Government and incitement to disorder is what shaped section 152's target, and it remains the leading case on how far criticism of the State may go.

Forgetting that section 124A still governs old conduct. An act done before 1 July 2024 is charged under the Penal Code, so a prosecution under section 124A can still be launched, subject to whatever the Vombatkere order requires.

Limits and criticism

The undefined expressions are the main objection. "Subversive activities" and "separatist activities" have no statutory content, and a section carrying imprisonment for life ought not to depend on words nobody has defined.

The maximum rose while the offence was being narrowed. Seven years against three is a substantial increase, and it sits oddly with the reform's stated purpose.

"Endangers sovereignty or unity and integrity of India" is a limb of its own. Read separately from the exciting and encouraging limbs, it punishes an act that endangers those interests without requiring any incitement at all, which is wider than anything in section 124A.

The Explanation may be too narrow. It protects disapprobation aimed at obtaining alteration "by lawful means". A commentator who says a policy should be resisted by civil disobedience is, on the words, outside the protection.

Quick revision

Section 124A is gone. The concordance run across both statutes reports it as matching no Sanhita heading.

Section 152. Purposely or knowingly, by words spoken or written, signs, visible representation, electronic communication, use of financial means, or otherwise, exciting or attempting to excite secession, armed rebellion or subversive activities; or encouraging feelings of separatist activities; or endangering sovereignty or unity and integrity of India; or indulging in or committing any such act. Life, or seven years, and fine.

The Explanation. Comments expressing disapprobation of Government measures or action, with a view to obtaining their alteration by lawful means, without exciting the activities named, are not an offence.

The history. Tara Singh Gopi Chand, Punjab High Court, 28 November 1950, and Ram Nandan, AIR 1959 All 101, held section 124A unconstitutional. Kedar Nath Singh, AIR 1962 SC 955, upheld it by reading in a requirement of incitement to violence or disorder. Balwant Singh, (1995) 3 SCC 214, Bilal Ahmed Kaloo, 6 August 1997, and Vinod Dua applied the limit. S.G. Vombatkere, 11 May 2022, put all proceedings in abeyance.

The four differences to state. The target moved from the Government to the State; the mental element is now express; electronic communication and financial means were added; and the maximum rose from three years to seven.

Test yourself

1. Is sedition still an offence in India? Not under that name. Section 124A of the Penal Code has no counterpart in the Sanhita. Section 152 occupies part of the same ground, but its target is the sovereignty, unity and integrity of India rather than the Government established by law.

2. What did Kedar Nath Singh v. State of Bihar decide? That section 124A was constitutional only if confined to acts involving an intention or tendency to create disorder or disturbance of law and order, or incitement to violence, so that strongly worded disapprobation of Government action without such a tendency was outside it.

3. Give three differences between section 124A and section 152. Any three of: the target moved from the Government established by law to the sovereignty, unity and integrity of India; the mental element "purposely or knowingly" is now on the face of the section; electronic communication and use of financial means were added to the list of means; the maximum term rose from three years to seven; and three Explanations were reduced to one.

4. What was unusual about the order in S.G. Vombatkere v. Union of India? On 11 May 2022 the Supreme Court directed that all proceedings under section 124A be kept in abeyance while the Government reconsidered the provision, which in effect suspended a statute that was in force.

5. Which expressions in section 152 are undefined, and why does it matter? "Subversive activities" and "separatist activities". It matters because the section carries imprisonment for life and its reach therefore depends on expressions to which Parliament has given no content.