Has the govt really ‘repealed the sedition law’? Or just strengthened it?

India’s Home Minister Amit Shah while tabling the amended Criminal Procedure Code (now known as Bharatiya Nagarik Suraksha Sanhita) said that they would be repealing the section dealing with sedition law. The British-era draconian law was instituted by Thomas Macaulay in 1837, during the reign of the East India Company. It was added to the Indian Penal Code as Section 124A in 1860.

This article is an attempt to understand and explain some of the basic changes, after a quick reading of the new law. Follow CNBC-TV18 as we continue our coverage for a deeper understanding of the changes and its potential impact on Indian democracy.

Here is what the old law and the new bill say:

The explanations given under Sec 124A are:

  ‘Disaffection’ as all feelings of enmity & disloyalty.

  Disapprobation of the government’s policies/actions without inciting hatred, contempt, or disaffection not considered an offence.

  Disapprobation of the administrative or other action of the government without inciting hatred, contempt, or disaffection not considered an offence.

The explanation provided in Section 150, BNSS, says:

“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.

Nipun Saxena, advocate at the Supreme Court said that in the new bill, Explanation #2 and parts of Explanation #3 of Section 124A, IPC have been fused together.

Saxena explained, “This new bill removes the word disaffection, and therefore it removes the first explanation. The third explanation in the previous legislation said that ‘Comments expressing disapprobation of the administrative or other action of the government without exciting or attempting to excite hate, contempt, or deception do not constitute an offence.’” Those words have been removed from the explanation under Section 150, BNSS.

Section 150 in the new bill also mentions ‘subversive activities’, without providing an explanation of what it means, thereby meandering into a grey zone.

As per Oxford Dictionary, subversive is defined as ‘trying or likely to destroy or damage a government or political system by attacking it secretly or indirectly’. As per the Thesaurus.com, seditious or treasonous are some of the synonyms for subversive.

Advocate Saxena said, “The expression ‘subversive activities’ is not known as it did not exist in the previous definition. It is yet to be judicially interpreted and is very subjective.”

The new bill expands the definition of the offence by inclusion of the terms ‘electronic communication’ and ‘use of financial means’. This could potentially cover WhatsApp messages, e-mails, social media posts that the government deems to be ‘subversive’ or ‘endangering unity’.

“The ‘financial means’ has to be, of course, when it will be interpreted by courts. I'm sure they will say that it has to be directly linked to the act of sedition,” Saxena said.

Advocate Saxena said, “In the new bill there is no distinction which is sought to be made between only seditious act or seditious act along with violence.”

“If you look at the previous provision, (section) 124A, the manner in which it was incorporated and interpreted by the Supreme Court, it said that it (imprisonment) will be extended to a period of three years. If it results in some violence, then imprisonment for life,” Saxena added.

The government may not have explicitly used the term sedition, but Section 150 looks to have retained all the ingredients of the British-era colonial law. It provides no definition as to what would constitute subversion or secession, unlike Sec 124A which defined what would be construed as ‘disaffection’.

Expanding the definition to include ‘electronic communication’ or ‘use of financial means’ without providing clarity may lead to the clause being misused or misinterpreted.

Further, Section 150 also doesn’t clarify what would NOT be construed as ‘excite or attempt to excite secession or armed rebellion or subversive activities’.

The implications of the term endangering ‘sovereignty or unity and integrity of India’ is very wide. The new bill makes no attempt to list out activities that could be seen as a threat to sovereignty or unity and integrity of the country.

Home Minister Amit Shah has sent the Bill to the Parliamentary Standing Committee for further perusal.