An FIR has been lodged against Rahul Gandhi in Guwahati by a private person under section 152 and 197 of Bhartiya Nyaya Sanhita (BNS) for a part of his speech “The BJP and the RSS have captured very single institution of our country. We are now fighting the BJP, RSS and the Indian state itself”. BJP was prompt to call his words coming from George Soros playbook. Section 152 pertains to Acts endangering sovereignty, unity and integrity of India and section 197 Imputations, assertions prejudicial to national integrity. Both the sections are cognizable and non-bailable – meaning the accused can be arrested without a warrant and can’t be given bail by police as matter of right – it’s the discretion of the court.
Section 152 BNS is corresponding section of section 124A (popularly law of sedition) IPC which has been repealed by BNS now. This is perhaps the first high-profile FIR under section 152 which is a whittled and more defined version of its predecessor section 124A IPC, after the BNS coming into effect. Undoubtedly the speech doesn’t attract the section when heard in its entirety, but the part “against the Indian State itself” is enough to procedurally harass Rahul Gandhi. First let’s see the law and then the politics around it.
Sedition IPC and Section 152 BNS: In 2022 the Supreme Court of India had suspended the trial of cases under Section 124A IPC taking cognizance of its misuse given its broad ambit and directed the government to reconsider this law. The context to it is important – there had been rise in registration of sedition cases during 2010 and 2021. Further conviction rate is as low as 33 percent – indicating the falsity of cases.
History: Interestingly section 124A was not a part of the original draft IPC 1860 which came into effect in 1862; and was incorporated in 1870 – triggered by the seeds sown by “the first battle of Independence 1857”. Bal Gangadhar Tilak was infamously convicted for his speeches under this law. Till 1973, sedition was non-cognizable and was made cognizable by Indira Gandhi govt just before the Emergency; meaning thereby that during British era, while a person could not be arrested without a warrant, he could be arrested without warrant in Independent India and it remains so till date.
The speech and the politics: While Gandhi’s speech in its entirety doesn’t fall foul in the section he is charged of, he has certainly made a self goal by not being politically correct in using the phrase “against the Indian state”. He being a legislator is assumed to be careful with words. One can defend him LEGALLY by contextualizing his speech with instances of Allahabad High Court Justice Shekhar Yadav’s speech, Madhya Pradesh High Court Justice Rohit Arya’s open allegiance while holding office and Additional Solicitor General SV Raju’s oral submission in the Supreme Court that there’s something fishy about the ED’s affidavit as it was submitted without his vetting; but yet the use of that particular phrase is indefensible POLITICALLY. He made his speech in haste perhaps. By this time, he must have learned the language and politics of masses.
Further, it is not correct to paint every institution and every institutional functionary with the same brush. It gives his fight the impression of being against the “Indian state” ALSO besides against the BJP. When he casts aspersions on addition of one crore voters in Maharashtra between Lok Sabha elections and assembly elections, there should be something verifiable to it, without which it sends impression of pessimism and self denial. Politics is a lot about perception. Today he is being seen as against the “Indian state”, against unity in relation to his caste census plank and regressive politics in relation to reservation.
The Writer is Delhi-based lawyer. On X @SeemaSindhu
