IPC 153A in the new BNS 2023

If you have been named in an FIR or notice under this section, the section number alone does not decide the outcome — the facts, the evidence and the procedure do. Many cases turn on procedural lapses, bail strategy and the exact ingredients of the offence.

This is the principal hate-speech provision in Indian criminal law, covering the promotion of enmity between groups on grounds of religion, race, place of birth, residence, language, caste or community. Under the BNS it sits at Section 196, and the recodification brought it expressly into the online world.

What the section requires

For the offence to be made out, these ingredients have to be established:

• the accused used words, spoken or written, or signs, visible representations, electronic communication or otherwise
• the act promoted or attempted to promote disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups, castes or communities, or committed an act prejudicial to the maintenance of harmony
• the act was likely to disturb public tranquillity

What changed from the IPC

The offence is carried over with one significant modernisation: BNS 196 expressly includes electronic communication among the means by which it can be committed, where IPC 153A referred to words, signs and visible representations without naming electronic media. In practice courts had already applied the old section to online material, but the express language removes the argument. The punishment structure is retained: up to three years, or a fine, or both, and up to five years with a fine where the offence is committed in a place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies.

How this section is distinguished from related offences

Several provisions in this area overlap and are frequently charged together, which makes the distinctions worth holding clearly. Section 196 concerns enmity between groups and requires that the act be likely to disturb public tranquillity. Section 299, replacing IPC 295A, concerns deliberate and malicious acts intended to outrage the religious feelings of any class by insulting its religion or religious beliefs, and it does not require any effect on public tranquillity. Section 353, replacing IPC 505, deals with statements and rumours conducing to public mischief, including those promoting enmity. Section 302, replacing IPC 298, covers uttering words with deliberate intent to wound religious feelings. Section 152 is a wholly different order of provision, concerning acts endangering the sovereignty, unity and integrity of India.

How the case proceeds

The offence is cognizable and non-bailable. A prosecution for this offence requires the previous sanction of the appropriate Government, a safeguard carried forward from the old law, and its absence is a complete bar — this is the first thing to check in any case under this section. Investigation focuses on the content, its reach and the context in which it was published, and where the material is online, on establishing who published it.

Evidence that usually decides these cases

The complete material in context is the evidence, and reading it as a whole is central because these prosecutions frequently rest on extracts. Courts assess the effect on reasonable people of ordinary firmness and prudence, not on the most sensitive members of an audience, and the class of persons who actually received the material matters. Where the material is electronic, the account records, posting logs and device forensics establish authorship, and the certification requirements for electronic records apply strictly. Reach and audience are relevant to whether public tranquillity was likely to be disturbed. Evidence of what actually followed, or did not, is material to that question, as is the setting — the place-of-worship aggravation depends on it.

How courts approach sentencing

Imprisonment which may extend to three years, or a fine, or both. Where the offence is committed in a place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies, imprisonment which may extend to five years, together with a fine.

Defences that commonly apply

Absence of the sanction required for prosecution is the first and most complete answer. On the substance, the principal defence is that the material, read as a whole and in its context, does not promote enmity between groups and was not likely to disturb public tranquillity — that it was criticism, satire, historical or academic discussion, or reportage rather than incitement. The constitutional dimension runs alongside, since the section operates as a restriction on the freedom of speech guaranteed by Article 19(1)(a) and must fall within the reasonable restrictions permitted by Article 19(2). On the facts, where the material is online, disputing authorship or establishing that the account was accessed by others is a recognised route, as is showing that the extract relied on misrepresents the whole.

How a case under this section typically progresses

The case begins with an FIR, and where electronic material is involved with the seizure and examination of devices. The sanction requirement often delays matters and is a frequent subject of litigation in itself. A charge sheet follows and trial proceeds. Petitions to quash the FIR on the ground that the material does not disclose the ingredients, or that sanction was not obtained, are common and are the principal early remedy in this area.

Documents worth gathering early

Preserve the complete material as published, with its full context — the whole article, the whole speech, the whole post with the thread around it — rather than the extract in the complaint. Where electronic, preserve the account records, posting history and the original device, and note the certification requirements for electronic evidence. Obtain the sanction order, or establish its absence, at the earliest stage. Where the material was a share or a forward, records showing the original source are directly relevant. Where the place-of-worship aggravation is invoked, evidence about the location and the nature of the gathering matters.

Note on bail and cognizability. Whether an offence is cognizable, and whether it is bailable, is set by the First Schedule to the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, not by the BNS section itself. Because that classification decides whether police can arrest without a warrant and how bail is approached, check it for your specific section with an advocate rather than relying on a general summary.

If you have been named under this section

Two things determine the shape of the case. The first is whether sanction has been obtained, since without it the prosecution cannot proceed. The second is whether the material, read as a whole and in context, promotes enmity between groups and was likely to disturb public tranquillity — a threshold courts have set deliberately high, since the section is not directed at every offensive or intemperate statement. Where the material is a post or a share, the question of what you actually published, as against what others added around it, is central.

Common misunderstandings

"Any offensive statement about a community is an offence."
The section requires promotion of enmity, hatred or ill-will between groups and a likelihood of disturbing public tranquillity. Courts have set the threshold well above mere offensiveness.

"Online posts were not covered by the old law."
They were applied to it, but BNS 196 now names electronic communication expressly, removing the argument.

"The police can prosecute without more."
A prosecution requires the previous sanction of the appropriate Government. Its absence is a complete bar and is the first thing to check.

"Sharing someone else's post is the same as writing it."
It may attract liability, but what was actually published by the accused, and in what form and context, is a question of fact that has to be established rather than assumed.

Related BNS sections

• BNS 196 — Promoting enmity between different groups
• BNS 299 — Deliberate and malicious acts intended to outrage religious feelings (IPC 295A)
• BNS 353 — Statements conducing to public mischief (IPC 505)
• BNS 152 — Act endangering sovereignty, unity and integrity of India

Which code applies to your case

The Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860 with effect from 1 July 2024, and the change is not retrospective. The date the offence is alleged to have been committed decides which code governs it. An offence alleged to have occurred on or after 1 July 2024 proceeds under the BNS. An offence alleged to have occurred before that date continues to be investigated, tried, appealed and punished under the IPC, even where the FIR was registered later. Cases from the transition period frequently cite both numbering systems, which is why the old section number remains worth knowing.

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General information for understanding the IPC→BNS change, not legal advice. The BNS restructured many offences — confirm the exact section, sub-section and punishment with a licensed advocate.