In what was billed as an exercise in revamping colonial-era laws, criminal law has been shuffled and re-packaged. The Bharatiya Nyaya Sanhita (BNS), will replace The Indian Penal Code, 1860; the Bharatiya Sakshya Adhiniyam (BSA), will replace The Indian Evidence Act, 1872; and the Bharatiya Nagarik Suraksha Sanhita (BNSS), will replace The Code of Criminal Procedure, 1898. These three new laws received Presidential assent on Dec 25, 2023. They are expected to come into effect on July 1, 2024.

A Free Speech Collective report.

What concerns for free speech do these new laws raise? Sedition, albeit in another guise, refuses to go away. This provision which Mahatma Gandhi termed the “prince among political sections of The Indian Penal Code, designed to suppress the liberty of the citizens,” not only remains intact but is further strengthened.

Other provisions introduced in the BNS include special offences, such as terrorism, otherwise dealt with by special laws like The Unlawful Activities ( Prevention ) Act (UAPA), 1967 or organised crime, otherwise dealt with by state laws like The Maharashtra Control of Organised Crime Act (MCOCA), 1999. The IPC provisions of criminal defamation and obscenity remains in the BNS, as well as sections dealing with ‘disturbing public tranquility’, that extend the scope of Section 153A of The Indian Penal Code (on spreading disharmony or causing enmity between groups, an IPC provision has been used extensively against journalists, writers and academics), to include electronic communication.

(Scroll down for a list of provisions in all three laws that will be problematic for free speech)

For several years now, independent media and critical voices have faced the brunt of ‘lawfare’. Apart from these three criminal laws, a plethora of regulatory laws has already been unrolled with provisions that further restrict citizens’ freedom of expression. These include The Digital Personal Data Protection Act, 2023, The Telecommunications Act, 2023, The Press and Registration of Periodicals Bill, 2023, The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, and The Broadcasting Services (Regulation) Bill, 2023 which is on the anvil.

As it is, an “undeclared Emergency” has become the new normal for vast sections of society, while hate-speech mongers enjoy considerable impunity. The decision of the Lt Governor of Delhi to sanction prosecution of writer Arundhati Roy and former Central University of Kashmir professor Sheikh Showkat Hussain under the UAPA after more than 13 years is a signal that the newly-elected NDA government will continue to pick on independent voices of dissent, even if its largest party falls short of a majority on its own in Parliament.

The new criminal laws will also necessitate a complete overhaul of the law enforcement mechanisms, for which the police and lower judiciary are ill-equipped.

In fact, civil liberties and free speech will be further jeopardised by the replacement of the old laws with more repressive legislation, coupled with provisions of other laws that also seek to curb, censor and regulate the freedoms of our already beleaguered citizenry.

Sedition by another name

Despite irrefutable evidence of its rank misuse; a Supreme Court order to keep it in abeyance; and the sly deletion of the term ‘sedition’, the concept of sedition still looms large as part of the “acts endangering the sovereignty, unity and integrity of India” in Chapter VII of the Bharatiya Nyaya Sanhita (BNS), 2023, dealing with offences against the State.

In 1962, a five-judge bench of the Supreme Court read down Section 124 A of the Indian Penal Code, dealing with sedition. In the now-famous Kedar Nath judgement, the Supreme Court clearly laid down that sedition would apply only if spoken or written words have the intention or tendency to create disorder or disturb peace by the use of actual violence or incitement to violence.

The new law doesn’t even attempt to address this reading down of Section 124A. Worse, it strengthens it. It is worth noting that the hasty enactment of the BNS was done even as the Supreme Court of India was deliberating on the current sedition law. Indeed, on September 12, 2023, a three-judge bench of the Supreme Court referred the Writ Petitions impugning the constitutionality of sedition law to a bench of at least five judges, a verdict that is still awaited. 

In 2019, during the campaign for elections to the 17th Lok Sabha, then Home Minister Rajnath Singh, pledged that the BJP would make the sedition law so stringent that it would send “shivers down the spine.”
Clearly, the BJP intends to fulfil that promise. Section 150 of the Bharatiya Nyaya Sanhita (BNS), 2023 reads:
“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.”

Thus, the mere utterance of words or any other representation is enough. The expression of “feelings” of separatist activities are enough. The attempt to excite, never mind if it succeeds or not, is enough. The punishment is up to life imprisonment.

Besides, the BNS adds several new terms to the original Section 124 A. For instance, it adds the terms “purposely or knowingly”, “electronic communication or by use of financial means”, “secession or armed rebellion or subversive activities, or encourages feelings of separatist activities or endangers sovereignty or unity and integrity of India.”

These offences may involve exchange of words or signs, electronic communication, or use of financial means. Therefore, read with The Telecommunications Act, 2023, which came into effect on June 26, 2024, legal interception of electronic communications, despite privacy being recognised as a Fundamental Right, will be permitted during investigations.

Punishment under Section 150 mandates imprisonment under all circumstances, Under Section 124 A, the penalty could range from a fine to imprisonment.

Other Provisions of the new Criminal laws that impact free speech

The Bharatiya Nyaya Sanhita (BNS)

The new criminal laws include special offences, such as organised crime under Sections 111 and terrorism under Section 113. Terrorism is defined as an act that intends to threaten the unity, integrity, security or economic security of the country, or strike terror in the people. The definition of terrorism also includes ambiguous terms like the ‘unity, integrity … of India … by using any other means of whatever nature’ and ‘damage to the monetary stability of India by way of production … circulation of … any other material’. It also includes any act that threatens the “economic security of India” as terrorism.

Terrorism is presently part of The Unlawful Activities ( Prevention ) Act (UAPA), 1967, which has been used indiscriminately against journalists, academics, students, writers, human rights defenders and other voices of dissent. While it does have a technical safeguard of prior sanction by the government, Now, even this safeguard does not exist under the new criminal laws. Police officers will be at liberty to lodge cases of terrorism without any prior executive check. Besides, history has shown that obtaining bail is extremely difficult under the UAPA.

Unlike cases under the UAPA which are tried in a special NIA court, offences of terrorism will be tried in a Sessions court.

Under the UAPA, the declaration of an organisation as a terrorist organization can be challenged but the BNS has no such provision.

Under Section 152 of the BNS, a new sub-section has been added on acts of secession, armed rebellion, subversive activities, separatist activities or endangering sovereignty or unity and integrity of India. Punishment for this is from seven years or to imprisonment for life.

In the chapter on ‘Offences against public tranquillity’, Section 196 (1) (a) punishes anyone who by words, either spoken or written, or by signs or by visible representations or through electronic communication or otherwise, promotes or attempts to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or (b) commits any act prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity.

Section 197 (1) (c) envisages punishing anyone who “by words either spoken or written or by signs or by visible representations or through electronic communication or otherwise (c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons, by reason of their being members of any religious, racial, language or regional group or caste or community, and such assertion, counsel, plea or appeal causes or is likely to cause disharmony or feelings of enmity or hatred or ill-will between such members and other persons;

Section 197(1)(d) of the BNS criminalises the act of making or publishing false or misleading information which jeopardises the sovereignty, unity and integrity or security of India. However, the Section does not specify what would constitute “false or misleading” information. It would be pertinent to recall that the attempts of the previous BJP-led government to notify the Press Information Bureau as the official fact-check unit to identify false or misleading information (under Rule 3(1)(b)(v) of The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021) has been stayed by the Supreme Court of India.

Provisions of obscenity are in Sec 294 of the BNS and include electronic forms of representation. Drawn from the wordings of Sec 292 of the IPC, a colonial legacy of the representation of sexuality through a moral lens, obscenity has been used against writers, film-makers, artists and playwrights to curb freedom of expression. The section in the BNS reads:

  1. (1) For the purposes of sub-section (2), a book, pamphlet, paper,writing, drawing,
    painting, representation, figure or any other object, including display of any content in
    electronic form shall be deemed to be obscene if it is lascivious or appeals to the prurient
    interest or if its effect, or (where it comprises two or more distinct items) the effect of any one
    of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are
    likely, having regard to all relevant circumstances, to read, see or hear the matter contained or
    embodied in it.

In the chapter on criminal force and assault against woman, Section 79 is broadly worded to penalise insults to a woman’s ‘modesty’ (whoever “intending to insult the modesty of any woman, utters any words, makes any sound or gesture, or exhibits any object in any form, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon
the privacy of such woman…”), with no definition or explanation.

Criminal Defamation 356. (1) Whoever, by words either spoken or intended to be read, or by signs or byvisible representations, makes or publishes in any manner, any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
And (2) punishments, which introduces community service for defamation

 Bharatiya Sakshya Adhiniyam (BSA)

Section 57 of the BSA, which deals with primary evidence, can also have implications for journalists, academics, researchers, writers or others who extensively use electronic devices for their work. In this section, Section 57, new explanations state that if electronic or digital records that are created or stored, either simultaneously or sequentially in multiple files, then each such file is an original. Similarly, stored video recordings, electronic or digital records stored in multiple storage spaces in a computer resource, including temporary files, are considered as original files. It is unclear if unedited or unfinished files, creative work or prior versions of works in progress, will also be taken as primary evidence.

Arming the executive with more powers of search and seizure, Section 185 of the BSA empowers police officers to search for any material or document (including digital devices) without a written order if they have “reasonable grounds” to believe that such material or document cannot be otherwise obtained without undue delay.

The BSA expands the definition of ‘documents’ to include electronic or digital records, including online communications on various personal devices. The definition is expansive and covers any electronic communication such as messages, call recordings, and emails as well as electronic communication devices such as mobile phones, laptops, cameras, and any other electronic device that “may be specified by the government at a later time”.

Bharatiya Nagarik Suraksha Sanhita (BNSS)

Section 94 of the BNSS further allows the Court to summon any document or material necessary for an investigation as ‘evidence’, and this includes digital evidence. Courts of law can also order search and seizure of such evidence for various reasons including if the person in possession of the evidence is “not expected to produce the same” or is not directly involved in the trial. Mobiles or laptops may contain a lot of information that may be irrelevant to the proceedings, but still be collected as evidence. In addition, every step of a criminal investigation is required to be recorded digitally.

The duration of police custody under the BNSS has been increased from the 15-day limit under the CrPC to either 60 or 90 days, depending on the gravity of the offence.

(Note: This list is by no means exhaustive. It will be updated as and when more clarity emerges on the new provisions and their deployment to curb free speech).

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