CONSTITUTIONAL CHALLENGES TO SECTION 152 OF THE BHARATIYA NYAYA SANHITA, 2023: SEDITION, DEMOCRATIC DISSENT AND THE FUTURE OF FREE SPEECH IN INDIA

Abstract

Section 152 BNS, 2023, or the purported colonization of the sedition law, has brought about a recent surge of constitutional cases pushing the boundaries of freedom of expression in the digital, polarized and populist Indian democracy. The “repackaged” nature and the increased breadth of its powers are reflected in Supreme Court notices issued in August 2025, across various petitions – including those filed by journalists and retired military officers. This paper builds upon current scholarship by incorporating data from the enforcement of the post-2024 regime, the shifting landscape of proportionality jurisprudence under Article 19, the chilling effects research, and international cases on “imminent harm.” It has stated that the section is vague and broad and does not meet the constitutional requirement of showing "manifest arbitrariness" provided by Article 14 or "substantive due process guaranteed" under Article 21 of the Constitution, thereby potentially infringing upon the basic structure of the Constitution. The framework along with legislations argue that there is a need to go beyond the ‘clear and present danger' framework by creating a new ‘clear and present danger plus' one, which can be contextualised for India. This analysis includes an approximate count of 10,000 words, and is original and will be submitted to conferences such as the Indian Law Review or International Journal of Constitutional Law.