Is a ‘potentiality of abuse' of BNS Section 152 a ground to declare the law unconstitutional, asks the Supreme Court

The Hindu

2 days ago

The Supreme Court on Tuesday (August 12, 2025) asked if 'potentiality of abuse' by the state of Section 152 of the Bharatiya Nyaya Sanhita (BNS), which punishes 'acts endangering sovereignty, unity and integrity of India', could be a ground to declare the law itself unconstitutional.
A Bench of Justices Surya Kant and Joymalya Bagchi raised the question to senior advocate Nitya Ramakrishnan, appearing for the Foundation of Independent Journalism and Siddharth Varadarajan, one of the founding editors of the online news portal The Wire, who is facing a First Information Report (FIR) under Section 152 and other offences under the BNS at Morigaon Police Station, Assam, for the publication of a news article.
The petition submitted that the arrest of Mr. Varadarajan and/or others was 'imminent'.
The Bench protected Mr. Varadarajan and the members of the Foundation from any coercive action by the police.
It issued notice to the Union government and the State of Assam, represented by Solicitor General Tushar Mehta, while noting that a Bench headed by the Chief Justice of India had issued notice on a separate petition, filed by S.G. Vombatkere, identically challenging Section 152 a few days ago, on August 8.
Ms. Ramakrishnan argued that Section 152 of the BNS, though worded differently and avoiding the term 'sedition', was 'in essence' the colonial sedition provision of Section 124A of the Indian Penal Code (IPC). BNS had replaced the IPC at a time when the legality of Section 124A was considered suspect by the apex court, and had been referred to a Constitution Bench for judicial scrutiny and an authoritative pronouncement.
The senior counsel submitted that Section 152 was vaguely worded, its ambiguity cloaking an immense capacity to chill free speech, especially of journalists.
At this point, Justice Bagchi agreed with Ms. Ramakrishnan that vagueness in a penal provision was a valid ground to challenge it. He referred to how the apex court had struck down Section 66A of the Information Technology Act for its vague terminology, which indirectly worked to aid authorities to use arrest as a tool to crush dissent.
Justice Bagchi said the apex court's judgment in the Kedar Nath Singh case had clearly defined that sedition could not be invoked under Section 124A until there was clear proof that words or action had incited violence.
'The acts which come within Section 124A and Section 152, by way of comparative interpretation, would be covered by the ratio of the Kedar Nath Singh verdict that unless there is a clear threat to unity and sovereignty, the offence [of sedition] need not be attracted,' Justice Bagchi observed.
Justice Kant said a general list of acts endangering sovereignty could not be prepared by the court; it would depend on a case by case basis
'For example, mere political dissent cannot endanger sovereignty,' Justice Kant said.
Again, on the issue of the vagueness of Section 152, Justice Kant indicated that being too specific would also be an invitation for trouble.
'Inviting the Legislature to define 'sovereignty' would be a big danger,' Justice Kant remarked.
Mr. Mehta asked whether a challenge to a provision could be used as a ground to gain anticipatory bail or seek the quashing of an FIR under Section 438 of the Code of Criminal Procedure.
Justice Kant responded by asking Mr. Mehta whether custodial interrogation was necessary in the case of journalists.
'When media persons get entangled, it is usually something they wrote or a programme aired, etc… These are matters which do not require custodial interrogation,' Justice Kant addressed the law officer.
Mr. Mehta replied that journalists could not be considered a 'separate class' while applying the provisions of the criminal law.
'No, but we are on the balancing of their [journalists'] fundamental right to speech against your [the state's] right to investigate and maintain public order,' Justice Bagchi clarified to Mr. Mehta.