The Supreme Court of India has raised a critical constitutional question regarding Bharatiya Nyaya Sanhita (BNS) Section 152 — whether the potential for abuse of this provision can itself be grounds to strike it down as unconstitutional. This section, which has been at the centre of debates on press freedom and state power, is often invoked in cases involving journalists, media houses, and other content creators.

During the hearing, the court noted that media professionals are frequently booked under this provision for written or broadcast content that does not necessarily require custodial interrogation. The bench observed that in such situations, arrests or prolonged detentions could disproportionately affect freedom of expression.

The judges emphasised that while the right to free speech is a fundamental right, it is not absolute. The state retains the authority to maintain public order, which is also a constitutional mandate. However, the challenge lies in ensuring that such legal provisions are not misused to intimidate or silence journalists.

In discussing constitutional principles, the court examined previous judgments where laws were struck down not only for actual misuse but for having the potential to be abused. The petitioners argued that BNS Section 152 contains vague wording that can easily be weaponised against dissenting voices. They also highlighted recent cases where journalists were summoned, questioned, and subjected to pressure tactics without strong prima facie evidence.

The Attorney General and the Solicitor General, representing the state, defended the provision, stating that mere possibility of abuse is not sufficient to declare a law unconstitutional. They stressed that the court must presume laws are enacted for legitimate purposes unless proven otherwise. According to them, safeguards already exist in criminal procedure to protect against arbitrary arrests.

However, the petitioners countered that these safeguards often fail in practice, especially when applied in politically sensitive cases. They cited recent high-profile arrests under similar provisions, arguing that the chilling effect on journalism is real and measurable.

The bench, led by Justice [Name], remarked that the issue requires striking a balance between journalistic freedom and the state’s responsibility to prevent disorder. The judges acknowledged that public order is a broad term and its misuse could easily overlap with suppression of legitimate reporting.

The hearing also touched on the history of free speech litigation in India, drawing parallels with the landmark Kedar Nath Singh case and the Shreya Singhal judgment, where provisions were either read down or struck down to prevent misuse.

As the arguments concluded for the day, the bench reserved further hearings for next week, indicating that any decision will have far-reaching consequences for both the media and law enforcement agencies. If the court rules in favour of the petitioners, BNS Section 152 could be read down or even struck down entirely, reshaping how public order offences are handled in India.

For now, journalists and free speech advocates are watching closely, as the outcome could determine whether potential misuse alone is enough to invalidate a law — a precedent that could influence many future constitutional challenges.

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