Promoting Enmity Between Groups and Imputations Prejudicial to National Integration under BNS: Sections 196 and 197

A politician makes a speech inciting hatred against a religious community. A social media post spreads communal disharmony by portraying one group as an enemy of another. A pamphlet asserts that members of a particular caste or religion are not loyal to the nation and should be denied their rights as citizens. A viral video promotes disharmony between linguistic groups. Each of these strikes at the foundation of India's pluralistic democracy - the peaceful coexistence of diverse religions, races, languages, castes, and communities. India's Constitution envisions a nation united in its diversity, and the criminal law protects this unity by criminalising speech and acts that promote enmity between groups or prejudice national integration. The Bharatiya Nyaya Sanhita, 2023, addresses these offences through Section 196 (promoting enmity between different groups) and Section 197 (imputations and assertions prejudicial to national integration). These provisions, carried forward from Sections 153A and 153B of the IPC, balance the protection of communal harmony and national integration against the freedom of speech. This module walks through both provisions, their ingredients, the mens rea requirement, the distinction between them, the free speech safeguards, and the leading cases from Balwant Singh through Amish Devgan.

1. Introduction

Protecting communal harmony

India is one of the most diverse nations in the world - home to multiple religions, races, languages, castes, and communities. This diversity is a source of strength, but also of potential conflict. Communal, casteist, and sectarian violence has been a recurring challenge. The criminal law protects communal harmony by criminalising speech and acts that promote enmity between groups or prejudice national integration.

The constitutional vision of unity in diversity

The provisions reflect the constitutional vision:

• The Preamble's commitment to fraternity assuring the dignity of the individual and the unity and integrity of the nation.
• The fundamental duty (Article 51A) to promote harmony and the spirit of common brotherhood.
• The protection of the pluralistic, secular character of the Indian polity.

The two provisions

The BNS addresses these concerns through two provisions:

• Section 196: promoting enmity between different groups.
• Section 197: imputations and assertions prejudicial to national integration.

The two are related but distinct - Section 196 targets the promotion of enmity/disharmony between groups; Section 197 targets specific imputations and assertions that question the loyalty or citizenship rights of groups.

2. Section 196 BNS: Promoting Enmity

Text of Section 196

The scope of the offence

Section 196 covers a broad range of conduct promoting enmity or disharmony between groups.

The three categories

Section 196(1) has three categories:

• Category (a): promoting disharmony or feelings of enmity, hatred, or ill-will between groups.
• Category (b): acts prejudicial to the maintenance of harmony that disturb (or are likely to disturb) public tranquillity.
• Category (c): organising or participating in exercises/movements/drills intending or knowing the participants will use criminal force or violence against a group.

3. Section 196: The Ingredients

For Category (a) - promoting enmity:

• By words (spoken/written), signs, visible representations, electronic communication, or otherwise.
• Promotes or attempts to promote.
• On grounds of religion, race, place of birth, residence, language, caste, community, or any other ground.
• Disharmony or feelings of enmity, hatred, or ill-will.
• Between different religious, racial, language, regional groups, castes, or communities.

For Category (b) - prejudicial acts:

• An act prejudicial to the maintenance of harmony between groups.
• Which disturbs or is likely to disturb public tranquillity.

For Category (c) - training in violence:

• Organising or participating in an exercise/movement/drill.
• Intending or knowing that participants will use/be trained to use criminal force or violence against a group.

4. The Grounds: Religion, Race, Caste, etc.

Section 196 applies to enmity promoted on specific grounds:

• Religion.
• Race.
• Place of birth.
• Residence.
• Language.
• Caste or community.
• Any other ground whatsoever.

The inclusion of 'any other ground whatsoever' broadens the provision beyond the enumerated grounds, capturing enmity promoted on any basis that divides groups. This reflects the provision's purpose of protecting harmony between all groups, however defined.

5. The Mens Rea Requirement

The mens rea requirement is crucial for Section 196:

• The provision requires intention or knowledge - the promotion of enmity must be intentional or done with knowledge.
• Mere careless or unintentional statements that happen to cause offence may not attract the provision.
• The courts have consistently held that mens rea is an essential ingredient.

The Balwant Singh principle is significant:

• Mere raising of slogans, without intention to promote enmity, does not attract the provision.
• The intention to promote enmity or disharmony must be established.
• This protects against the misuse of the provision for casual or spontaneous statements.

6. Section 196: Aggravated Form (Place of Worship)

Section 196(2) provides an aggravated form:

• Where the offence is committed in a place of worship or a religious assembly.
• Punishment is enhanced to up to five years and fine.

The rationale for the aggravated form:

• Places of worship and religious assemblies are particularly sensitive.
• Promoting enmity in such places has a heightened potential to inflame communal passions.
• The enhanced punishment reflects the greater gravity of exploiting religious spaces for communal disharmony.

7. Section 197 BNS: Imputations Prejudicial to National Integration

Text of Section 197

The scope of the offence

Section 197 targets specific imputations and assertions that question the loyalty, citizenship rights, or obligations of groups.

The three limbs

Section 197 has three principal limbs (with the BNS adding a fourth on false/misleading information):

• Limb (a): imputing that a class cannot bear true faith and allegiance to the Constitution or uphold sovereignty/integrity by reason of their group membership.
• Limb (b): asserting that a class should be denied their rights as citizens by reason of their group membership.
• Limb (c): making assertions about the obligations of a class that cause or are likely to cause disharmony.
• Limb (d): a new BNS addition covering false or misleading information jeopardising sovereignty, unity, integrity, or security.

8. Section 197: The Ingredients

For Limb (a) - questioning loyalty:

• Making or publishing an imputation.
• That a class of persons cannot bear true faith and allegiance to the Constitution or uphold sovereignty/integrity.
• By reason of their membership of a religious, racial, language, regional, caste, or community group.

For Limb (b) - denying citizenship rights:

• Asserting, counselling, advising, propagating, or publishing.
• That a class should be denied or deprived of their rights as citizens.
• By reason of their group membership.

For Limb (c) - obligations causing disharmony:

• Making assertions about the obligations of a class by reason of their group membership.
• That cause or are likely to cause disharmony or feelings of enmity, hatred, or ill-will.

The common thread: Section 197 targets statements that attack groups on the basis of their group membership, questioning their loyalty, citizenship, or belonging.

9. Distinction Between Sections 196 and 197

The key distinction:

• Section 196 targets the promotion of ENMITY or DISHARMONY between different groups (inter-group hostility).
• Section 197 targets IMPUTATIONS AND ASSERTIONS that question a group's LOYALTY to the nation, or assert that a group should be denied citizenship rights (attacks on national belonging).

Illustration:

• Section 196: a speech inciting one community to hate another - promoting enmity between groups.
• Section 197: a statement that members of a particular religion cannot be loyal to India and should be denied citizenship rights - imputation prejudicial to national integration.

The two may overlap (a statement may both promote enmity and question loyalty), and charges may be framed under both.

10. The Free Speech Framework

Sections 196 and 197 restrict free speech and must be read consistently with Article 19:

• Article 19(1)(a): freedom of speech and expression.
• Article 19(2): reasonable restrictions in the interests of public order, decency, morality, sovereignty and integrity of India, etc.

The constitutional balance:

• The provisions restrict speech that promotes enmity or prejudices national integration.
• This is a reasonable restriction under Article 19(2) (public order, sovereignty and integrity).
• But the provisions must not be so broad as to chill legitimate speech, criticism, or debate.

The safeguards developed by the courts:

• Mens rea is essential (intention or knowledge to promote enmity).
• Mere strong criticism, historical discussion, or academic analysis is not sufficient.
• The effect must be judged from the standard of a reasonable, strong-minded person, not the most sensitive or paranoid.
• Two or more groups are required (for Section 196).

11. The Requirement of Sanction

Prosecution under Sections 196 and 197 requires prior sanction:

• Under Section 217 BNSS (formerly Section 196 CrPC), no court shall take cognizance of offences under Sections 196 and 197 BNS except with the previous sanction of the Central Government or State Government.
• This is an important procedural safeguard.

The rationale for the sanction requirement:

• These offences involve sensitive questions of communal harmony and free speech.
• The sanction requirement ensures executive oversight before prosecution.
• It prevents frivolous or politically motivated prosecutions.
• It provides a filter against the misuse of these provisions.

The sanction requirement is significant because it introduces a check on the initiation of prosecutions for these speech offences, recognising their sensitivity and potential for misuse.

12. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Balwant Singh v. State of Punjab, (1995) 3 SCC 214. Mens rea essential; casual slogans.
• Manzar Sayeed Khan v. State of Maharashtra, (2007) 5 SCC 1. Two groups; mens rea.
• Amish Devgan v. Union of India, (2021) 1 SCC 1. Comprehensive hate speech framework.
• Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431. Two groups essential.
• Ramesh v. Union of India, (1988) 1 SCC 668. Reasonable-strong-minded-person standard.
• Pravasi Bhalai Sangathan v. Union of India, (2014) 11 SCC 477. Hate speech framework.
• Babu Rao Patel v. State of Delhi, (1980) 2 SCC 402. Attributing disloyalty.
• Gopal Vinayak Godse v. Union of India, AIR 1971 Bom 56. Intention and effect.
• Azizul Haq Kausar Naqvi v. State, (1980) Cri LJ. Section 153B framework.
• Manzar Sayeed Khan framework cases. Context and content assessment.
• Shreya Singhal v. Union of India, (2015) 5 SCC 1. Vagueness and free speech.
• Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955. Criticism vs incitement.
• Javed Ahmad Hajam v. State of Maharashtra, (2024) SC. Modern free speech framework.
• Patricia Mukhim v. State of Meghalaya, (2021) SC. Social media hate speech.
• Mahendra Singh Dhoni v. Yerraguntla Shyamsundar, (2017) 7 SCC 760. Religious feelings framework.

Frequently Asked Questions

What is Section 196 BNS?

Section 196 BNS (formerly Section 153A IPC) criminalises promoting enmity between different groups. It covers three categories: (a) promoting or attempting to promote, on grounds of religion, race, place of birth, residence, language, caste, community, or any other ground, disharmony or feelings of enmity, hatred, or ill-will between different groups; (b) committing acts prejudicial to the maintenance of harmony that disturb or are likely to disturb public tranquillity; (c) organising or participating in exercises/movements/drills intending or knowing that participants will use criminal force or violence against a group. Punishment: up to three years, or fine, or both; up to FIVE years if committed in a place of worship or religious assembly (Section 196(2)). The offence requires mens rea (intention or knowledge to promote enmity), and requires two or more groups - promoting enmity within a single group or against the government is not covered.

What is Section 197 BNS?

Section 197 BNS (formerly Section 153B IPC) criminalises imputations and assertions prejudicial to national integration. It has principal limbs: (a) making or publishing an imputation that a class of persons cannot bear true faith and allegiance to the Constitution or uphold the sovereignty and integrity of India by reason of their membership of a religious, racial, language, regional, caste, or community group; (b) asserting that a class should be denied or deprived of their rights as citizens by reason of their group membership; (c) making assertions about the obligations of a class that cause or are likely to cause disharmony; and (d) a new BNS addition on false or misleading information jeopardising sovereignty, unity, integrity, or security. Punishment: up to three years, or fine, or both; up to five years in a place of worship. Section 197 targets attacks on a group's national belonging - questioning their loyalty or citizenship rights on the basis of group membership.

What is the difference between Sections 196 and 197?

Both protect communal harmony and national integration, but with different focuses. SECTION 196 (formerly 153A) targets the promotion of ENMITY or DISHARMONY BETWEEN different groups - inter-group hostility (e.g., a speech inciting one community to hate another). SECTION 197 (formerly 153B) targets IMPUTATIONS AND ASSERTIONS that question a group's LOYALTY to the nation or assert that a group should be DENIED CITIZENSHIP RIGHTS - attacks on national belonging (e.g., a statement that members of a particular religion cannot be loyal to India and should be denied citizenship). Section 196 is about promoting hostility between groups; Section 197 is about attacking a group's belonging to the nation. Both carry the same punishment (up to 3 years, 5 in a place of worship), both require mens rea, and both require prior government sanction for prosecution. The two may overlap, and charges may be framed under both.

Is mens rea required for Section 196?

Yes, mens rea is an essential ingredient. The courts have consistently held that the promotion of enmity must be INTENTIONAL or done with KNOWLEDGE. In Balwant Singh v State of Punjab, (1995) 3 SCC 214, the Supreme Court held that the casual raising of pro-Khalistan slogans a couple of times by two individuals, without any intention to incite people or promote enmity, did NOT attract Section 153A. The Court emphasised that mens rea (intention to promote enmity) is essential. Mere careless or unintentional statements that happen to cause offence do not attract the provision. In Manzar Sayeed Khan v State of Maharashtra (2007), the Court reiterated the mens rea requirement and held that the intention must be judged from the words and context. The mens rea requirement is a crucial safeguard against misuse - it protects casual, spontaneous, or unintentional statements, and requires proof of a genuine intention to promote enmity between groups.

What standard is used to judge whether speech promotes enmity?

In Ramesh v Union of India, (1988) 1 SCC 668, the Supreme Court laid down the standard: the effect of the words must be judged from the standard of REASONABLE, STRONG-MINDED, FIRM AND COURAGEOUS persons, NOT from the standard of weak and vacillating minds, nor from the standard of those who scent danger in every hostile point of view. This 'reasonable strong-minded person' standard is significant: (i) it means speech is not judged by the most sensitive or easily offended; (ii) it protects robust debate and strong expression; (iii) it prevents the provisions from being triggered by the mere hurt feelings of the most sensitive listener. The standard, combined with the mens rea requirement (Balwant Singh) and the two-groups requirement (Bilal Ahmed Kaloo), forms a framework that balances the protection of communal harmony against the freedom of speech, ensuring that the provisions target genuine hate speech rather than legitimate, if strong, expression.

Is sanction required to prosecute under Sections 196 and 197?

Yes. Under Section 217 BNSS (formerly Section 196 CrPC), no court shall take cognizance of offences under Sections 196 and 197 BNS except with the previous sanction of the Central Government or State Government. This is an important procedural safeguard. The rationale: (i) these offences involve sensitive questions of communal harmony and free speech; (ii) the sanction requirement ensures executive oversight before prosecution; (iii) it prevents frivolous or politically motivated prosecutions; (iv) it provides a filter against the misuse of these provisions. The sanction requirement is significant because it introduces a check on the initiation of prosecutions for these speech offences, recognising their sensitivity and potential for misuse. A prosecution without the required sanction is invalid. This procedural safeguard complements the substantive safeguards (mens rea requirement, two-groups requirement, reasonable-strong-minded-person standard) in preventing the misuse of the hate speech provisions.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Offences Relating to Religion under BNS: Sections 298 to 302 that address deliberate acts wounding religious feelings.
• Endangering Sovereignty under BNS: Section 152 that addresses threats to national integrity, related to Section 197.
• Article 19 Framework: freedom of speech (19(1)(a)) and reasonable restrictions (19(2)) governing hate speech provisions.
• Public Tranquillity under BNS: Chapter XI (Sections 189-197) of which the enmity provisions are part.