The Bharatiya Nyaya Sanhita, 2023 ("BNS"), the legislation that replaced the existing Indian Penal Code, 1860 ("IPC") was brought into effect on July 1, 2024. BNS while introducing various new offences also reformulates certain older provisions and introduces new nomenclature for some offences. The BNS was brought into effect along with two other acts; the Bharatiya Nagarik Suraksha Sanhita, 2023 ("BNSS"); and the Bharatiya Sakshya Adhiniyam, 2023 ("BSA"). The BNSS And BSA replace the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 respectively.
This article explores the relevant changes brought about by the BNS that impact the publishing industry, namely the changes brought about bythe BNS to certain colonial era provisions such as offences of sedition, defamation and inciting religious and communal disharmony. These offences have been analysed below:
Sedition
Section 124A of the erstwhile IPC detailed the offence of sedition. While Section 152 of the BNS provides for a similar offence, the BNS refrains from naming this as Sedition and recharacterizes the offence of Sedition under the as acts endangering the sovereignty, unity and integrity of India. Section 152 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 BNS 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 Section 152 of the BNS suggests that any act that, "excites or attempts to excite, secession or armed rebellion or subversive activities" is a criminal act. In contrast, the BNS also widens the room for interpretation by the authorities to decide what acts could fall under the purview of this Section, thereby leading to ambiguity.
Another change implemented is the inclusion of the terms "electronic communication" and "financial means", both of which are tools that can be used to excite secession, armed rebellion or separatism and penalised under Section 152 of the BNS.
"Electronic Communication" has been defined under the Section 2(d) (i) of the BNSS as "communication of any written, verbal, pictorial information or video content transmitted or transferred (whether from one person to another or from one device to another or from a person to a device or from a device to a person) by means of an electronic device including a telephone, mobile phone, or other wireless telecommunication device, or a computer, or audio-video player or camera or any other electronic device or electronic form as may be specified by notification, by the Central Government". Electronic Communication could potentially cover emails, WhatsApp messages, text messages and Instagram/Facebook/Twitter content.
The words "financial means" remains undefined under the BNS and has been left to the courts to interpret.
The explanation to Section 152 of the BNS, 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."
Additionally, the term of punishment under Section 152 of BNS has been increased from 3 (three) years to 7 (seven) years. While the government asserted that the BNS no longer penalised acts of Sedition, the BNS essentially not only provides us with a more expansive scope of the erstwhile 'Sedition' law but also an enhanced punishment.
Defamation
The BNS and IPC both define defamation as the act of harming someone's reputation by making a statement. The BNC retains defamation as a penal offence and sets forth the ingredients of defamation, exceptions to defamation and penalties for the offence under Section 356. An essential change brough about by the BNS is that it allows for community service as an alternative sentence for acts of defamation.
Inciting Communal Violence and Hate Speeches
The BNS introduces changes to the provisions relating to inciting religious and communal disharmony. The table below illustrates the changes that have been made to the provisions.
| Provision in the IPC | Change by BNS |
| Section 153A: Promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony | Section 196: Insertion of "Electronic communication" |
| Section 153B: Imputations, assertions prejudicial to national integration | Section 197: Insertion of "Electronic communication" |
| Section 299: Deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs | Section 295-B: Insertion of "Electronic means" |
| Section 505(2): Statements conducing to public mischief | Section 353(2): Insertion of "Electronic means" |
The insertion of the term "electronic means" and "electronic communication" has a far reaching implication and could potentially cover content in emails, WhatsApp messages, text messages and Instagram/Facebook/Twitter or other social media content. The BNS ensures that henceforth, any digital content could also be categorised as content that can incite religious and communal disharmony and/or be outrage the religious beliefs of any class.
While the BNS attempts to distinguish itself from the IPC, several of the new provisions incorporate and retain ingredients of the British colonial-era laws and may also provide for harsher punishments (as in the case of sedition). Our understanding of offences under the IPC was underscored with decades of constitutional jurisprudence, with courts evolving the thresholds for determining what constitutes 'defamation', sedition' etc. over time. Presently, we find ourselves in a grey area and require Courts to step in and clarify the purview of the revised provisions, especially with respect to new 'Sedition' laws.
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.