Under the Explanation to Section 152 of the Bharatiya Nyaya Sanhita, 2023 (Act endangering sovereignty,…

In Niharendu Dutt Majumdar v. King Emperor (1942), Chief Justice Sir Maurice Gwyer of the Federal Court held that public disorder, or the reasonable anticipation or likelihood of public disorder, is the gist of the offence (then under Section 124A IPC), and that mere criticism of Government without inciting disorder is not criminal. Although the Privy Council took a broader view in Sadashiv Narayan Bhalerao (and the Bombay High Court earlier in Tilak), the Supreme Court of India in Kedar Nath Singh v. State of Bihar (1962) approved the Federal Court's narrower test to harmonise the law with Articles 19(1)(a) and 19(2) of the Constitution. Section 152 of the Bharatiya Nyaya Sanhita, 2023 now penalises acts endangering the sovereignty, unity, and integrity of India (exciting or attempting to excite secession, armed rebellion, or subversive activities, or encouraging feelings of separatist activities, or endangering the sovereignty or unity and integrity of India), while its Explanation expressly provides that 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 that section do not constitute an offence under that section.