Institute of Legal and Management Studies

The Supreme Court on Tuesday (August 12) granted interim relief to the members of the Foundation running the online news outlet 'The Wire' and its Founding Editor Siddharth Varadarajan by protecting them from coercive action in an FIR registered by the Assam Police under Section 152 of the Bharatiya Nyaya Sanhita (BNS).

The FIR was registered by the Morigaon Police on July 11 with respect to the article “IAF Lost Fighter Jets to Pak Because of Political Leadership's Constraints': Indian Defence Attache" published by The Wire in relation to the Operation Sindoor.

A bench comprising Justice Surya Kant and Justice Joymalya Bagchi passed the interim order in a writ petition filed by the Foundation for Independent Journalism (the trust owning The Wire) and Varadarajan, challenging the constitutionality of Section 152 BNS, which the petitioners contended was a repackaged version of the colonial sedition law. The bench issued notice to the Union Government on the writ petition and tagged it with another petition which also questioned the validity of the provision.

Senior Advocate Nitya Ramakrishnan, appearing for the petitioners, submitted that the provision was vague and broadly-worded, and created a "chilling effect" on expression, particularly affecting the right of the media to report and raise questions at the government.

However the bench asked if the potential for abuse can be a ground to strike down a provision.

"Is the potentiality of abuse a ground to declare a law unconstitutional? Show us an authority on that. There's difference between implementation and power to legislate," Justice Bagchi observed. Justice Kant also expressed a similar view, saying "any provision in penal law can be misused..."

Ramakrishnan submitted that the provision, which penalises "acts endangering the sovereignty of the nation", is inherently vague and pointed out that vagueness has been recognised as a ground to strike down a provision.

At this juncture, Justice Kant asked the Solicitor General how "acts endangering the sovereignty of the nation" are defined. "How can it be statically defined that what will be an act of endangering sovereignty? For instance, one can argue that political dissent can't endanger sovereignty...Inviting legislature to define 'endangering sovereignty' is a big danger," Justice Kant asked.

SG invited the bench's attention to the Explanation of the provision. Ramakrishnan argued that the provision has great potential for misuse and can be used to target the media.

SG Tushar Mehta asked if the media should be treated as a separate class. Justice Bagchi then said, "That's not what is being sought. it's about balancing fundamental right to free speech with protection of public order."

Justice Kant observed that when the offence is with respect to articles published by a news outlet, custodial interrogation may not be necessary. "Basically these are matters where you don't require custodial interrogation," he said.

The petitioners stated in the petition that the news article was a factual report of a seminar organised by a university in Indonesia and statements made by India's defence personnel, including India's military attache to Indonesia, on the military tactics employed during Operation Sindoor. They also pointed out that the article carried the Indian Embassy's response to the Defence Attache's comments. It was also pointed out that comments of the Attache were reported by several other media houses as well.

They contended that the registration of the FIR was "an abuse of the process of law" and an attempt to muzzle press freedom.

They also challenged Section 152 BNS as violative of Articles 14, 19(1) & 21 of the Constitution for being vague and an unreasonable restriction on the right to freedom of speech and expression..

Case Title: FOUNDATION FOR INDEPENDENT JOURNALISM AND ANR. Versus UNION OF INDIA AND ORS., W.P.(Crl.) No. 316/2025