In 1962, the Supreme Court of India in Kedar Nath Singh v. State of Bihar upheld the constitutional validity of Section 124A of the Indian Penal Code, the sedition provision, but attempted to cabin its reach by holding that only speech accompanied by incitement to violence or public disorder could constitute sedition. Mere criticism of the government, even vigorous or disaffectionate criticism, the Court said, was constitutionally protected. That narrow interpretation was meant to serve as a safeguard. Six decades later, it has largely failed in practice. Section 124A has been used routinely against journalists, activists, students, farmers, and elected representatives, not because the law has changed, but because its enforcement has never been disciplined by its own stated limits.
The provision itself is of colonial vintage. Drafted by Thomas Macaulay and enacted by British administrators to suppress political dissent, Section 124A IPC makes it a cognizable, non-bailable offence to bring or attempt to bring into hatred or contempt the Government established by law in India through words, signs, or visible representation. The maximum punishment is life imprisonment. The British deployed it against Bal Gangadhar Tilak and Mahatma Gandhi. Independent India retained it largely unchanged, a peculiarity of constitutional inheritance that successive law commissions and parliamentary committees have flagged for reform.
The Kedar Nath test, which turns on incitement to imminent violence, was a constitutionally necessary restriction, but it created a structural problem: the arrest happens first, and the test is applied later, if at all. The mere registration of a sedition FIR is enough to cause prolonged detention, career destruction, and a chilling effect on speech. The National Crime Records Bureau data has consistently shown that the rate of sedition charges leading to conviction is negligible, around 3 percent, while the rate of arrests and charge-sheets remains substantial. The weapon is not conviction; it is the process itself.
In May 2022, the Supreme Court in S.G. Vombatkere v. Union of India directed all pending trials, appeals, and proceedings under Section 124A to be kept in abeyance while the Central Government reconsidered the provision. This amounted to a judicial moratorium, extraordinary and welcome, but it was not a constitutional interment. It suspended the use of the provision without adjudicating its validity. The government subsequently enacted the Bharatiya Nyaya Sanhita, 2023 (BNS), which replaced the IPC. Section 124A was removed from the BNS in its original form but reappeared as Section 152, which criminalises acts "endangering sovereignty, unity and integrity of India." Critics have noted that Section 152 BNS is in many respects broader than its predecessor; it covers electronic communication and does not confine punishment to incitement to violence.
The constitutional case for complete abolition rests on proportionality. Under the framework established in Modern Dental College v. State of Madhya Pradesh (2016) and reaffirmed in Anuradha Bhasin v. Union of India (2020), restrictions on fundamental rights must satisfy a three-part test: legality, legitimate aim, and proportionality. Section 124A and its successor fail at all three levels when scrutinised honestly. The provision is overbroad, imprecisely defined, and carries a punishment entirely disproportionate to the harm of non-violent dissent. No democratic constitutional order that takes seriously the right to free expression under Article 19(1)(a) can sustain a provision that criminalises disaffection toward the state as an autonomous offence.
Comparative constitutional experience is instructive. The United Kingdom, which gave India its sedition law, repealed the Sedition Act in 2009. The Law Commission of UK found the provision redundant in light of existing laws against incitement to violence and public disorder. Australia and New Zealand similarly repealed or substantially reformed their sedition statutes. The argument that India needs sedition law to protect state security collapses when one recognises that the Unlawful Activities (Prevention) Act, the National Security Act, and provisions of the BNS itself provide ample tools to address genuine threats to state security.
What Kedar Nath offered in 1962 was a judicially-imposed narrowing that substituted for legislative courage. The Court read down a law rather than striking it down, perhaps out of deference to a newly independent state still consolidating authority. That deference has long outlived its justification. The question before Indian constitutional law today is not whether Section 124A or its BNS successor can be read to conform to constitutional standards, it probably can be, with sufficient judicial creativity, but whether such a reading is honest, and whether it serves the values that a constitutional democracy is obligated to uphold. The answer, on both counts, is no. What is needed is not a suspended law, not a rebranded statute, but a clean constitutional reckoning with the idea that democratic governments may punish citizens for the content of their political speech.