Retired Army Officer Moves SC Challenging Section 152 BNS as 'Repackaged Sedition'

The provision, the petitioner argues, is nothing short of a “repackaged sedition law”, bearing the same constitutional infirmities as the colonial-era Section 124A of the Indian Penal Code.

The petition came up for hearing before the Bench of Chief Justice BR Gavai, Justice K. Vinod Chandran and Justice NV Anjaria.

The Court issued notice and tagged the matter with WC 682 of 2021.

The writ petition, filed under Article 32 of the Constitution by Major General (Retd.) S.G. Vombatkere, through AoR Prasanna S. contends that Section 152 is violative of Articles 14, 19(1)(a), and 21 of the Constitution. Vombatkere was also the lead petitioner in the earlier challenge to Section 124A IPC, where the Supreme Court in 2022 had effectively suspended the application of the sedition law and directed the Centre to reconsider its validity.

According to the petitioner, Section 152 reintroduces vague, sweeping, and overly broad language criminalising various forms of expression, including speech, signs, and even financial transactions. Terms like “subversive activities”, “secession”, and “encouraging feelings of separatist activities”, the petition states, are legally indeterminate and provide a toolkit for arbitrary State action.

“This new provision, though cosmetically distinct, retains all the vice of Section 124A, and worse, expands its scope by penalising even symbolic or financial expression,” the plea contends.

Section 152 prescribes punishment up to life imprisonment for anyone who “purposely or knowingly” uses any form of expression, spoken, written, electronic or financial, to excite or attempt to excite secession, armed rebellion or subversive activities. An explanation to the section exempts lawful criticism of government action intended to bring about change, but the petitioner argues that this exception is narrow and illusory.

The petition submits that the provision is vague and overbroad, fails the test of legality, lacks a proximate connection with public disorder, and creates a chilling effect on constitutionally protected speech. Referring to the landmark judgment in Shreya Singhal v. Union of India, the plea asserts that the absence of precise standards renders the law unconstitutional.

The petitioner also challenges the mental element (mens rea) required under the law, “purposely or knowingly”, arguing that the undefined scope of these terms could criminalise unintentional or innocent acts, such as forwarding a message or making a donation without knowledge of political affiliations.

Further, the plea contends that the punishment prescribed life imprisonment or up to 7 years, is grossly disproportionate and violates the right to life and liberty under Article 21. The provision does not contain any graded punishment scheme or safeguards to ensure proportionality.

On the ground of arbitrariness under Article 14, the petitioner submits that the provision leaves too much discretion in the hands of enforcement authorities, lacks objective criteria, and opens the door to discriminatory application, particularly against dissenters, journalists, minorities, and civil society actors.

Importantly, the petition urges the Court to reconsider the validity of Kedar Nath Singh v. State of Bihar, the 1962 verdict that had upheld sedition on a narrow construction. Given the evolution of Indian constitutional jurisprudence, particularly post-Maneka Gandhi, I.R. Coelho, and Puttaswamy, the petitioner contends that a multi-dimensional fundamental rights analysis must be applied today.

“Measured against the evolved standards of legality, necessity, proportionality, and due process, Section 152 collapses on every count,” the plea submits.

The petition reiterates that criminalising dissent in a democratic society is impermissible, especially in the absence of a clear and present danger or imminent incitement to violence. Without a narrowly tailored law and sufficient procedural safeguards, it argues, the provision cannot pass constitutional muster.

The petition raises fundamental questions on free speech, dissent, and the role of the State in a constitutional democracy, at a time when India’s new criminal law codes are set to come into force from July 1, 2025.