Law & Policy
A New Offence Has Also Been Added: What Section 152 Protects That Section 124A Did Not, and Where the Sanhita Puts the Check
1 November 2026 · 15 min read
Every offence against the State has to name the thing it protects, and the name decides almost everything else about the section. If what is protected is the Government, then the offence is capable of being committed by a person who says the Government is bad. If what is protected is the existence of the State within its borders, then saying the Government is bad cannot amount to the offence however loudly it is said, because the proposition and the protected interest do not touch.
The Indian Penal Code, 1860 made the first choice. Its Chapter VI was the chapter of offences against the State, and the section inside it that governed speech protected the Government by name. The Bharatiya Nyaya Sanhita, 2023 makes the second. Its Chapter VII carries the same heading, and the section inside it that governs speech protects sovereignty, unity and integrity instead.
That is a change of object, not a change of wording, and it is the reason the familiar description of section 152 as "the new sedition" is misleading in both directions. On the protected interest the new section is dramatically narrower. On almost everything else — the means, the conduct limbs, the punishment — it is wider.
The Sanhita's own Statement of Objects and Reasons does not call it a replacement at all. Paragraph 4 of that Statement lists the Bill's innovations and then says: "A new offence on acts of secession, armed rebellion, subversive activities, separatist activities or endangering sovereignty or unity and integrity of India has also been added."
A new offence has been added. The word "sedition" does not appear anywhere in the Sanhita, and neither does the word "disaffection".
What the repealed section punished
Section 124A was not part of the Code as enacted. It was inserted by section 5 of Act 27 of 1870 and substituted in its final form by section 4 of Act 4 of 1898. Its punishment clause reached its present words only in 1956, when section 117 and the Schedule of Act 26 of 1955 substituted "imprisonment for life" for "transportation for life or any shorter term" with effect from 1 January 1956.
As it stood when the Code was repealed, and omitting at two points words that the Adaptation of Laws Orders removed, it read:
"Whoever by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine."
The omitted words were "Her Majesty or" before the reference to the Government, removed by the Adaptation of Laws Order, 1950, and "or British Burma" after it, inserted in 1937 and removed in 1948. The section that survived into 2024, in other words, was a colonial provision with the Crown edited out of it and the structure left standing.
Three features of that structure matter for the comparison.
First, there is no adverb of intention in it. The section did not require that the accused act purposely or knowingly. It required an act — words, signs, visible representation — and a result or an attempt at a result. Whatever mental element the offence carried had to be derived from the verbs "excites" and "attempts to excite", and from a century and a half of construction built on top of them.
Second, the operative emotions were named, and one of them was defined. Explanation 1 provided: "The expression 'disaffection' includes disloyalty and all feelings of enmity." Hatred, contempt and disaffection were the three states of mind the section was concerned with, and the widest of the three had a statutory gloss.
Third, the exemption was stated twice, in two Explanations, each tied to the same three named emotions. Explanation 2: "Comments expressing disapprobation of the measures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section." Explanation 3: "Comments expressing disapprobation of the administrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section."
The division of labour between the two was deliberate. Explanation 2 covered criticism of what the Government had decided and required, in addition, that the criticism be aimed at lawful alteration. Explanation 3 covered criticism of what the Government had done administratively and attached no such requirement. A person whose comment was directed at an executive act did not have to show that he was pressing for its alteration by lawful means. A person whose comment was directed at a policy did.
What section 152 punishes
Section 152 of the Sanhita, under the marginal heading "Act endangering sovereignty, unity and integrity of India", 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 mean, 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 singular "financial mean" is how the provision is printed in the official compilation. The semicolon before "or indulges in" is also as printed.
The Explanation, now the only one, reads:
"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 do not constitute an offence under this section."
Set the two sections side by side and five differences appear, and they do not all run in the same direction.
The mental element was added. The words "purposely or knowingly" have no counterpart in section 124A. It is the most significant narrowing the section makes, and the least discussed. Its effect is to require the prosecution to prove a state of mind as part of the definition rather than to argue it out of the verbs.
The protected interest was changed. The Government established by law has disappeared from the section. Nothing in section 152 is committed by bringing a Government into hatred or contempt. The expression "hatred or contempt" does not appear anywhere in the Sanhita. The nearest surviving provisions are addressed to something else: section 353(1)(b) reaches a false statement, rumour or report made with intent to cause, or likely to cause, fear or alarm to the public "whereby any person may be induced to commit an offence against the State or against the public tranquillity", and section 353(2) reaches false information promoting "feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities". Neither is concerned with the standing of a Government. What the section protects is secession, armed rebellion, subversive activities, separatist feeling, and sovereignty or unity and integrity.
The triad in the marginal heading is split in the section. The heading reads "sovereignty, unity and integrity of India". The operative words read "endangers sovereignty or unity and integrity of India". In the section, sovereignty stands as one protected interest and unity-and-integrity as another, joined by "or". A marginal heading does not control the text, so the operative division is the one that governs, and it means a single act need only endanger one of the two.
The means were extended. The references to "electronic communication" and to "use of financial mean" are new. The first merely states what "or otherwise" already covered. The second is of a different character: it extends an offence whose core verbs are about exciting and encouraging to a person who provides money, without routing the liability through abetment or conspiracy. The ordinary route to the funder of a secessionist movement is through the abetment provisions in sections 45 to 49 of the Sanhita, or the conspiracy provision in section 61; section 152 reaches him as a principal.
The punishment was raised. Section 124A offered imprisonment for life, or imprisonment up to three years, or fine alone. Section 152 offers imprisonment for life, or imprisonment up to seven years, and liability to fine in either case. The lower limb more than doubled and the fine-only option disappeared. A sentencing court choosing under section 152 has a range running from a nominal term of imprisonment to life, with no statutory minimum and nothing in the section to indicate where in that range a given case belongs.
The exemption and the undefined word
The Explanation to section 152 is the two Explanations of section 124A merged. It covers "the measures, or administrative or other action of the Government", which is Explanation 2's subject plus Explanation 3's, and it carries the qualification "with a view to obtain their alteration by lawful means", which was Explanation 2's alone.
So the merger did not simply preserve the old protection. A person who criticises an administrative action of Government was protected by Explanation 3 of section 124A without having to establish any purpose of lawful alteration. Under section 152 he is protected by an Explanation that attaches that purpose to measures and administrative action alike. On the text, the safe harbour has become conditional in a case where it previously was not.
The more important change is at the other end of the Explanation. Section 124A's exemption was bounded by three named emotions: the comment was protected so long as it did not excite hatred, contempt or disaffection, and the widest of those words was defined in the section itself. Section 152's exemption is bounded by "the activities referred to in this section". Those activities include "subversive activities", which the Sanhita does not define anywhere, and "feelings of separatist activities", which is not a defined expression either and is not an ordinary one.
The consequence is structural. The boundary of the protection now depends on a term whose content the statute does not supply, where before it depended on terms the statute did supply, one of them expressly. Whatever answer the courts give to "subversive activities" will be the answer to the scope of the exemption as well, because the two are the same question asked from opposite sides.
The final limb compounds this. The words "or indulges in or commits any such act" form a residual clause whose antecedent is not identified. The expression "any such act" might refer to the acts of exciting and encouraging already enumerated, in which case the limb adds nothing; or to the activities — secession, armed rebellion, subversion, separatism — in which case the limb creates a substantive offence of participation that the earlier words did not. Whether "purposely or knowingly" governs this limb is a further question of construction that the placement of the adverbs at the head of the section leaves open.
Where the Sanhita puts the check
The narrowing in section 152 is real, and it is in the definition. The question for anyone who has to advise at the stage at which these cases actually arise is a different one: at what point in the process does any of it operate?
The First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023 classifies the offence under section 152 as cognizable and non-bailable, and triable by the Court of Session. Its punishment column gives imprisonment for life, or imprisonment for seven years and fine — attaching the fine to the seven-year limb only, where the section attaches liability to fine to both.
Cognizable and non-bailable means that the registration of a first information report, the investigation and the arrest require no permission from anybody outside the police station, subject to the ordinary provisions on arrest.
The Sanhita's new filter for cases that may not deserve investigation does not reach section 152. Section 173(3) provides that on receipt of information relating to the commission of a cognizable offence "which is made punishable for three years or more but less than seven years", the officer in charge may, with prior permission of an officer not below the rank of Deputy Superintendent of Police and "considering the nature and gravity of the offence", either conduct a preliminary enquiry within fourteen days to ascertain whether a prima facie case exists, or proceed with investigation where one does. The window is three years or more but less than seven. Section 152 is punishable with imprisonment for life, so the provision does not apply to it, and there is no discretion to enquire before registering.
What the Sanhita does provide is a sanction, and it is placed at cognizance. Section 217(1) provides that no Court shall take cognizance of "any offence punishable under Chapter VII or under section 196, section 299 or sub-section (1) of section 353 of the Bharatiya Nyaya Sanhita, 2023", or a criminal conspiracy to commit such offence, or an abetment of the kind described in section 47 of the Sanhita, "except with the previous sanction of the Central Government or of the State Government". Section 152 is in Chapter VII, so the sanction is required.
Section 217(4) then permits the sanctioning authority to inform itself before deciding: the Central or State Government may, before according sanction under sub-section (1), "order a preliminary investigation by a police officer not being below the rank of Inspector", who then has the powers referred to in section 174(3).
That is a genuine check, and it is the only one the procedural code supplies specifically for this offence. But its position in the sequence should be stated plainly. A sanction that bars the taking of cognizance does not bar the registration of the report, the investigation, the search, or the arrest. Every coercive step available in a non-bailable Chapter VII case is available before the Government has been asked anything, and the sanction becomes relevant only when the investigating agency has finished and wants a Court to proceed.
The same is true of the mental element and of the Explanation. Acting "purposely or knowingly" is a matter for proof at trial, and the Explanation is a defence to be established on the material. Both are addressed to the court that convicts. Neither is addressed to the officer who arrests, and neither is capable of being adjudicated at the hour at which the consequences of the section are first felt. A definition narrowed at the trial end leaves the custodial end where it was.
Where the three-year offence went
One further provision is worth placing beside section 152, because it carries forward the maximum sentence that section 124A used to carry.
Section 197 of the Sanhita is headed "Imputations, assertions prejudicial to national integration", and its first three clauses reproduce clauses (a) to (c) of section 153B of the Penal Code almost exactly — a section inserted by section 2 of Act 31 of 1972 with effect from 14 June 1972 — with "through electronic communication" added to the list of means. Clause (d) has no counterpart there. It makes it an offence to make or publish "false or misleading information, jeopardising the sovereignty, unity and integrity or security of India". The punishment under section 197(1) is imprisonment up to three years, or fine, or both. The First Schedule classifies it as cognizable and non-bailable, triable by a Magistrate of the first class.
So the protected interest named in the marginal heading of section 152 reappears in section 197(1)(d) with a three-year maximum, a falsity requirement, a lower threshold of harm — "jeopardising" rather than "endangers" — and no requirement that the accused act purposely or knowingly. Its sanction regime is different too: under section 217(2) of the procedural Sanhita, cognizance of an offence under section 197 requires the previous sanction of the Central Government, the State Government "or of the District Magistrate". The graver offence may be unlocked only by a Government. The lesser one may be unlocked by a District Magistrate.
The section that is still being tried
Finally, the Penal Code's repeal does not retire section 124A from the courts.
Section 358(1) of the Sanhita repeals the Indian Penal Code. Section 358(2) provides that the repeal shall not affect, among other things, "any penalty, or punishment incurred in respect of any offences committed against the Code so repealed", or "any proceeding, investigation or remedy in respect of any such penalty or punishment as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Code had not been repealed."
The Sanhita came into force on 1 July 2024, except sub-section (2) of section 106, by notification S.O. 850(E) dated 23 February 2024. Conduct before that date is governed by the Code, and prosecutions for it may be instituted and continued as though the Code stood. Section 124A, with its three Explanations and its defined "disaffection" and its protected Government, therefore remains the law applicable to a body of cases that will take years to work through the trial and appellate courts, alongside a section 152 that protects something else.
That overlap is unavoidable in any recodification. What is worth noticing is that the two sections ask different questions of the same kind of record. A prosecution under section 124A has to show what the accused's words did to the standing of a Government. A prosecution under section 152 has to show what he purposely or knowingly did to the integrity of a State. For some years the same courts will be doing both, and the authorities accumulated under the first will be of limited use in the second — not because they were wrongly decided, but because the thing they were protecting is no longer the thing the section protects.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.