Introduction
On 11 May 2022, a three-judge bench of the Supreme Court of India delivered an order in S.G. Vombatkere v. Union of India that, for a brief moment, appeared to mark the beginning of the end of sedition law in India. The court suspended the operation of Section 124A of the Indian Penal Code, directed that no new FIRs be registered under it, and invited the Union government to reconsider a colonial provision that had been used by the British to prosecute Bal Gangadhar Tilak and Mahatma Gandhi. The government’s response, framed as a commitment to review the law, was welcomed by civil libertarians and legal scholars who had long argued that sedition’s vagueness and breadth made it incompatible with the freedom of expression guaranteed by Article 19(1)(a).
Three years later, that cautious optimism appears to have been misplaced. The legal landscape has changed in ways that are both formal and consequential, but not necessarily in the direction that the court may have intended. Section 124A was not repealed; it was replaced. The Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024 replacing the Indian Penal Code, contains in Section 152 a provision that criminalises “acts endangering sovereignty, unity and integrity of India.” The language is broader, the penalties are severe, and the conceptual ambiguity that made Section 124A susceptible to abuse has not merely survived the legislative transition; it has arguably been amplified. Alongside this formal substitution, the enforcement landscape reveals a more complex picture: UAPA, the National Security Act, state security laws, and provisions of the Information Technology Act are being deployed in contexts where sedition would previously have been the charge of choice. Sedition’s afterlife, it turns out, is more diffuse and therefore more difficult to challenge than its original form.
Legal Framework
Section 124A of the Indian Penal Code, as it stood until 2024, penalised the bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection towards, the Government established by law. The provision was inserted by the British in 1870, amended in 1898, and survived constitutional challenge in Kedar Nath Singh v. State of Bihar (1962), where the Supreme Court read it down to apply only to words or acts that had the tendency or intention to create disorder or incite violence. The Kedar Nath limitation was the constitutional lifeline of Section 124A; it allowed the provision to survive while nominally restricting its application to genuinely dangerous speech.
The practical reality was that Kedar Nath’s limitations were systematically disregarded in enforcement. Sedition charges were filed against journalists reporting on farmer protests, academics writing critically about government policy, students raising slogans, activists supporting the rights of tribal communities, and critics of the government’s handling of the COVID pandemic. The statutory text, read without Kedar Nath, permitted all of this; read with Kedar Nath, none of it qualified. The gap between the constitutional minimum and the enforcement reality was the space in which Section 124A inflicted its greatest harm.
Section 152 of the Bharatiya Nyaya Sanhita, 2023 criminalises any act committed with the intention to or tendency to cause secession, armed rebellion, subversive activities, or to encourage the feelings of separatist activities or endanger the sovereignty or unity and integrity of India. The penalty is imprisonment for life or imprisonment for a term which may extend to seven years, along with a fine. The provision additionally covers financial support for the above activities. While the government’s stated position was that “sedition” as a label had been replaced with a more precisely targeted provision, legal analysts have noted that the operative concepts, specifically tendency, encouragement of feelings, and endangering unity, are if anything more expansive than the Kedar Nath-narrowed version of Section 124A.
Judicial Developments
The Vombatkere order of May 2022 was technically limited in its scope. The Supreme Court did not strike down Section 124A; it suspended its operation pending reconsideration by the government and directed that pending trials under the provision be stayed where the accused sought such relief. The court set a return date, and the matter was listed several times subsequently without substantive resolution. When the Bharatiya Nyaya Sanhita was enacted and came into force in 2024, the formal question of Section 124A’s constitutionality was rendered largely academic as a prospective matter, though challenges to the transitional provisions and to Section 152 BNS were expected.
The Supreme Court’s engagement with allied provisions has been less hesitant. Shreya Singhal v. Union of India (2015) struck down Section 66A of the Information Technology Act, which had been used to prosecute persons for online content deemed offensive or menacing. The court held that the provision failed to satisfy the tests of reasonableness under Article 19(2) and was unconstitutional. Despite this decision, the National Crime Records Bureau’s data showed that FIRs under Section 66A continued to be registered in states across India for years after the judgment, with enforcement authorities either unaware of or indifferent to the Supreme Court’s ruling.
Romila Thapar v. Union of India (2018) raised foundational questions about the use of UAPA against intellectuals and academics linked to the Bhima Koregaon investigation. While the Supreme Court in that case declined to order an independent investigation by a majority, the dissenting opinion of Justice D.Y. Chandrachud remains among the most powerful judicial statements about the risks of using anti-terror statutes against political dissent. He observed that the UAPA’s extraordinary provisions, including its bail restrictions and presumptive guilt mechanisms, require scrupulous oversight precisely because their potential for abuse is structural rather than exceptional.
Contemporary Issues and Analysis
The transition from Section 124A IPC to Section 152 BNS represents more than a cosmetic change. The new provision drops the word “sedition” but retains and expands the underlying conceptual framework. The reference to “tendency to cause” feelings of separatism is particularly problematic because it criminalises not speech that causes separatism but speech that might tend to encourage those feelings. This is a vagueness of a constitutional order: the law gives no intelligible principle by which a speaker can know in advance whether their words cross the line, and it gives enforcement authorities wide latitude to make that determination after the fact.
UAPA Sections 13 and 18 have become the primary tools for prosecuting what would earlier have been sedition cases involving alleged Maoist sympathies or connections to banned organisations. Section 13 penalises membership in a terrorist organisation, support for terrorist activities, and association with persons designated as terrorists. Section 18 penalises conspiracy to commit a terrorist act. The bail provisions in UAPA are stringent: under Section 43D(5), bail may not be granted unless the court is satisfied that there are reasonable grounds for believing that the accusations are prima facie false. This reversal of the ordinary bail standard in criminal law means that accused persons often remain in custody for years before trial. The cases of Stan Swamy, Sudha Bharadwaj, and Vernon Gonsalves, all prosecuted under UAPA in connection with the Bhima Koregaon investigation, illustrate this dynamic with painful clarity.
The National Security Act, 1980 and the Public Safety Act, 1978 applicable in Jammu and Kashmir permit preventive detention for periods of up to twelve months without trial. They have been used extensively against journalists, activists, and political figures, particularly in the Kashmir Valley after the abrogation of Article 370 in August 2019. The preventive detention framework is constitutionally permitted under Article 22 subject to the safeguards therein, but those safeguards have been progressively attenuated by broad readings of the grounds for detention and by the reluctance of courts to engage in detailed factual review of detention orders.
The Information Technology (Amendment) Rules, 2023, particularly those establishing the Fact Check Unit with authority to direct removal of content deemed “fake or false” in relation to government business, represented a further extension of regulatory control over political speech online. These rules were challenged before the Bombay High Court, which stayed and eventually struck down the provision. The episode illustrated the pattern of legislative and executive action that creates new instruments of speech regulation even as older ones are judicially invalidated.
Comparative and International Perspective
The United Kingdom abolished sedition and seditious libel as criminal offences through the Coroners and Justice Act 2009, following a Law Commission recommendation that the offences were arcane, vaguely defined, and no longer fit for purpose in a modern democracy. The British experience is instructive because the argument for abolition was not merely liberal; it was pragmatic. The Law Commission found that sedition law was used infrequently but was available for use in ways that had a disproportionate chilling effect on political speech, and that equivalent conduct that genuinely threatened public order could be adequately addressed by other provisions.
The United States developed through Brandenburg v. Ohio (1969) the most speech-protective standard for incitement in any common law jurisdiction. The Brandenburg test holds that speech advocating illegal conduct is protected by the First Amendment unless it is directed to inciting or producing imminent lawless action and is likely to produce such action. The requirement of imminence is the critical element: abstract advocacy of violence or illegal conduct, however extreme, does not satisfy the test. This standard is incompatible with the “tendency” language that appears both in old Section 124A (as originally drafted, before Kedar Nath’s limiting interpretation) and in the new Section 152 BNS.
India’s constitutional jurisprudence under Article 19(2) permits reasonable restrictions on speech in the interests of, among other things, the sovereignty and integrity of India, the security of the State, and public order. These are broad grounds. The challenge has always been to ensure that the reasonableness requirement, which the Supreme Court has acknowledged is a meaningful constraint and not merely a formality, is actually applied with rigour when governments invoke these grounds to suppress criticism and dissent.
Practical and Policy Implications
The practical effect of the current legal landscape is a significant chilling of political speech, investigative journalism, and civil society advocacy. Journalists and activists who cover conflict zones, document human rights violations, or report on state conduct in sensitive areas face the constant possibility that their work will attract not merely sedition, which at least carried a known constitutional history, but UAPA charges, which carry far more severe consequences by way of bail restrictions, investigation timelines, and associational stigma. The formal suspension of Section 124A has not meaningfully reduced this vulnerability; it has simply changed its legal denomination.
The use of multiple overlapping charges in single cases, a practice that has become common in politically sensitive prosecutions, compounds the problem. An accused person may face charges under UAPA Section 13 (membership in terrorist organisation), Section 152 BNS (endangering sovereignty), IT Act provisions, and state security laws simultaneously. Each charge carries its own procedural consequences, each must be independently addressed, and the cumulative effect is a process of prosecution that functions as punishment regardless of ultimate conviction.
Suggestions and Reforms
The minimum reform required by constitutional principle is the judicial scrutiny of Section 152 BNS against the standards of Articles 19(1)(a) and 19(2). A challenge to Section 152 on the ground that its tendency standard, divorced from any requirement of imminence or propensity to cause actual violence, is constitutionally overbroad should be mounted and adjudicated. The court’s engagement with that challenge will define the constitutional framework within which the successor to sedition law operates.
More substantially, India requires a legislative framework that distinguishes with precision between speech that actually endangers state security through its likely effects and speech that merely criticises, embarrasses, or challenges the government and its policies. That distinction, obvious as a matter of liberal principle, has never been satisfactorily codified. The Law Commission of India should be tasked with preparing a draft law on national security speech that incorporates the Brandenburg-type imminence requirement, that defines the scope of anti-terror provisions with the precision required by constitutional due process, and that includes robust judicial oversight mechanisms for preventive detention and trial stays.
The specific problem of UAPA bail provisions requires legislative attention. The reversal of the ordinary presumption of innocence in Section 43D(5) is a structural anomaly that converts the bail stage into a near-certain detention order in practice. Either the provision should be amended to restore the ordinary bail standard, with the court able to consider the nature of the evidence rather than simply its existence, or a judicial oversight mechanism with regular review periods should be established to prevent prolonged pre-trial detention becoming the default outcome.
Conclusion
The Supreme Court’s 2022 suspension of Section 124A was a constitutionally significant gesture that expressed the court’s discomfort with a provision whose abuse had become systematic and well-documented. But the gesture was incomplete, and the legislative response to it has produced a legal landscape that may be more, rather than less, threatening to the freedom of political expression. Section 152 BNS is a formal renaming that preserves and extends the conceptual architecture of sedition. UAPA, NSA, and state security laws provide parallel tracks for prosecution that carry their own constitutional difficulties.
The fundamental constitutional question is one that India has not yet fully answered: how much latitude do governments have to restrict speech in the name of national security, and who determines whether that latitude has been exceeded? The courts, the legislature, and civil society all have roles to play in answering that question. What the experience of the past decade demonstrates is that no single institutional intervention, not a Supreme Court order, not a legislative repeal, not a press freedom report, is sufficient by itself. The protection of political speech requires sustained constitutional commitment expressed through multiple institutional channels simultaneously, and that commitment remains to be fully established in India’s post-sedition legal order.
