New Delhi: The Supreme Court on Tuesday (August 12) passed an order protecting  members of the Foundation for Independent Journalism, the trust that owns The Wire, as well as the news organisation's founding editor, Siddharth Varadarajan, against any coercive action in connection with an FIR registered by the Assam Police under Section 152 of the Bharatiya Nyaya Sanhita (BNS).

The FIR was registered by the Morigaon police in Assam on July 11 based on a complaint by a local BJP leader with respect to an article on the website, 'IAF Lost Fighter Jets to Pak Because of Political Leadership's Constraints': Indian Defence Attache', published on June 28, 2025. The article dealt with a statement made by India’s defence attache to Indonesia, Captain (Indian Navy) Shiv Kumar, who acknowledged at a seminar in Indonesia that the Indian Air Force lost fighter jets to Pakistan on the night of May 7, 2025, during Operation Sindoor, because of the “constraint given by the political leadership to not attack the military establishment or their air defences”.

The story was widely reported by the media in India and led the Indian embassy in Jakarta to issue a 'clarification' the same evening stating that Captain Kumar's comments were being taken out of context. The Wire's report was promptly updated to include the embassy's statement.

A bench comprising Justice Surya Kant and Justice Joymalya Bagchi passed an interim order in a writ petition filed by the Foundation and Varadarajan, who challenged the constitutionality of Section 152 BNS, contending that it is a repackaged version of the colonial-era sedition law whose use in the erstwhile Indian Penal Code had been stayed by the apex court in 2023:

"Meanwhile, the members of the petitioner – Foundation as well as petitioner No.2 against whom FIR No.181/2025, has been registered on 11.07.2025, at PS Morigaon, Assam, under Sections 152, 197(1)(d) and 353(1)(b) of the Bharatiya Nyaya Sanhita, 2023, may join the investigation as and when required, however, no coercive action shall be taken against them."

The bench also issued notice to the Union government and the Assam government, represented in court by solicitor general Tushar Mehta, while tagging it with another petition, currently before a bench headed by the Chief Justice of India, that has questioned  the constitutional validity of Section 152.

Senior advocate Nitya Ramakrishnan, representing the petitioners, argued that the impugned BNS, though worded differently and avoiding the term ‘sedition’, was “in essence” the colonial sedition provision of IPC Section 124A.

The bench then asked if potential for abuse alone 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, as quoted by LiveLaw.

Ramakrishnan then submitted that the provisions under Section 152 were vague, broadly-worded and created a "chilling effect" on freedom of expression, particularly affecting the right of the media to report and raise questions of the government.

Justice Bagchi agreed that the vagueness of the law was a valid ground to challenge it. Meanwhile, the bench also brushed aside SG Mehta's argument that the media should not be treated as a separate class.

"That's not what is being sought. It's about balancing fundamental right to free speech with protection of public order," Justice Bagchi said.

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 article in question, as the counsel submitted in court, was a factual report of a seminar in Indonesia and carried the statements made by India's defence personnel. It also carried the Indian Embassy's response to the comments.

On May 9, The Wire's website was temporarily blocked for nearly 12-15 hours in India on government orders following the publication of an article regarding Rafale jets in Operation Sindoor. The website was restored later. Several other news organisations had also faced similar blockades of their social media handles or websites.

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