The Supreme Court on Tuesday, August 12, 2025, posed a significant constitutional question — can the “potentiality of abuse” by the state of Section 152 of the Bharatiya Nyaya Sanhita (BNS) be grounds to strike down the provision itself?
A Bench of Justices Surya Kant and Joymalya Bagchi raised the issue during a hearing on a petition filed by the Foundation of Independent Journalism and Siddharth Varadarajan, founding editor of another news channel. The petition challenges Section 152, which penalises “acts endangering the sovereignty, unity and integrity of India.”
Mr. Varadarajan faces an FIR under Section 152 and other BNS provisions at Morigaon Police Station, Assam for publishing a news article. His counsel argued that his arrest was “imminent.” The Bench granted him and members of the Foundation protection from coercive action, and issued notices to the Union government and the State of Assam, represented by Solicitor General Tushar Mehta.
Petition Links Section 152 to Colonial-Era Sedition
Senior advocate Nitya Ramakrishnan, appearing for the petitioners, argued that Section 152 is essentially a rebranded version of Section 124A of the Indian Penal Code (IPC) — the colonial sedition law — despite omitting the term “sedition.” She noted that the BNS replaced the IPC at a time when the Supreme Court had already cast doubt on the legality of Section 124A, referring it to a Constitution Bench for scrutiny. She called Section 152 “vaguely worded”, warning that its ambiguity could have a chilling effect on free speech, particularly against journalists.
Justice Bagchi agreed that vagueness in a penal statute is a valid ground for challenge, citing the Court’s earlier decision to strike down Section 66A of the Information Technology Act for similar reasons. He noted that such imprecise provisions could be misused as a tool to silence dissent.
Comparing with Kedar Nath Singh Sedition Ruling
Justice Bagchi observed that the Kedar Nath Singh judgment had made it clear that sedition could only be invoked if there was concrete evidence of inciting violence. He remarked that acts covered under Sections 124A and 152 should be interpreted in light of that precedent — meaning no offence should be attracted without a “clear threat to unity and sovereignty.”
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Justice Kant added that political dissent alone cannot be construed as endangering sovereignty. However, he cautioned that attempting to create an exhaustive list of such acts was impractical, as each case would require individual examination. He also warned that asking the legislature to define “sovereignty” too specifically could be dangerous.
Debate on Arrest and Journalists’ Rights
Solicitor General Mehta questioned whether challenging a legal provision could be used to seek anticipatory bail or quash an FIR under Section 438 of the Code of Criminal Procedure.
Justice Kant responded by questioning the necessity of custodial interrogation in cases involving journalists, where the alleged offence often relates to something written or aired. “These are matters which do not require custodial interrogation,” he said.
While Mehta maintained that journalists should not be treated as a “separate class” under criminal law, Justice Bagchi clarified that the Court’s focus was on balancing the fundamental right to free speech with the state’s responsibility to investigate and maintain public order.
The case will now be heard alongside a similar petition filed by S.G. Vombatkere, which also challenges Section 152, and is pending before a Bench headed by the Chief Justice of India.
