India: Sovereignty, Secession And Subversion: A Wolf In Sheep's Clothing?

The Bharatiya Nyaya Sanhita Bill, 2023 ("New IPC Bill"), the proposed successor to the existing Indian Penal Code, 1860 ("IPC") was introduced in the Lok Sabha on August 11, 2023. The Bill was tabled along with two other bills: (1) Bharatiya Nagarik Suraksha Sanhita Bill, 2023; and (2) Bharatiya Sakshya Bill, 2023 intended to replace the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively. The bills had been referred to a Parliamentary Standing Committee on August 11, 2023.

When Home Minister Amit Shah introduced the three bills aimed at overhauling criminal laws in India, he stated:

"Everyone has the right to speak. We are completely repealing sedition."

The text of the New IPC Bill, however, suggests that sedition has been retained with a new nomenclature. While the term 'sedition' is no longer used in the New IPC Bill, the currently suspended provisions on 'sedition' have been recharacterized as acts endangering the sovereignty, unity and integrity of India. IPC's Section 124A, which was commonly referred to as the sedition law has been replaced by Section 150 in the New IPC Bill. Section 150 of the New IPC Bill reads as follows:

"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 means, 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 net cast by the insertion of the phrase endangering 'sovereignty or unity and integrity of India' could be wide and misused as the New IPC Bill doesn't set out a list of activities that could be seen as a threat to sovereignty or unity and integrity of the country or even provide an illustration to demonstrate what could be construed as such a threat. The language of the proposed Section 150 of the New IPC Bill suggests that any act that, "excites or attempts to excite, secession or armed rebellion or subversive activities" is a criminal act. It widens the room for interpretation by the authorities to decide what acts could fall under the purview of this Section.

Another difference is that while Section 124A of the IPC used the words such as "disaffection towards the Government established by law in India", "contempt" and "hatred", the proposed Section 150 replaces these with the use of words such as "secessionism", "separatism" and "armed rebellion". The scope of proposed Section 150 has also been broadened by the inclusion of the words "electronic communication" and "use of financial means" both of which are tools by which one can excite secession, armed rebellion or separatism. 'Electronic communication' could potentially cover emails, WhatsApp messages, text messages and Instagram/Facebook/Twitter content. 'Financial means' has not been defined either and its meaning will depend on the interpretation given to it by courts and the authorities.

The explanation to Section 150 of the New IPC Bill, though ambiguous, provides some respite and states:

"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, will not constitute an offence under this provision."

The New IPC Bill also proposes a more severe penalty under Section 150. The below table illustrates the comparison in the penalties prescribed.

Importantly, the Supreme Court had suspended the operation of the sedition provisions under the IPC on May 11, 2022. Albeit renamed, the new provision has incorporated and retains several ingredients of the British colonial-era-sedition law and also provides for harsher punishments. Our understanding of sedition under the IPC was underscored with decades of constitutional jurisprudence, with courts evolving the thresholds for determining 'sedition' over time. By reinstating the pith and substance of the provision, with uncertain language, we find ourselves in a grey area and would, if the New IPC Bill is passed as is by Parliament, require Courts to step in and clarify the purview of the Section.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.