BNSS Section 98 – Power to Declare Certain Publications Forfeited and to Issue Search Warrants

Introduction

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 has superseded the age-old Code of Criminal Procedure, 1973, and brought various changes to India's criminal procedure regime. Among its numerous provisions, Section 98 is of crucial importance in the balance between state power and freedom of expression. It gives the power to the State Government to pronounce specified publications as forfeited and authorizes the grant of warrants for search for seizure of such publication.

This section deals with the regulation of materials that can pose threats to public order, morality, or social harmony. In the process, it also generates very significant controversies regarding press freedom, censorship, and judicial review.

Text of BNSS Section 98

The bare text of Section 98 reads:

Where any newspaper, book, or document seems to the State Government to contain contents liable to be punished under Sections 152, 196, 197, 294, 295, or 299 of the Bharatiya Nyaya Sanhita, 2023, the State Government is empowered, by notification specifying the reasons for its opinion, to declare every copy of such publication forfeited to the Government. Police officers are empowered to seize the same and Magistrates to issue warrants of search for places suspected to contain such material.

For the definitions under this section:

"Newspaper" and "book" have the meanings assigned to them under the Press and Registration of Books Act, 1867.
"Document" means paintings, drawings, photographs, or any other visible representation.

No order made under this section may be challenged before any court, save as provided under Section 99 BNSS.

Legislative Background

The seizure of objectionable publications is not something new. The Criminal Procedure Code (CrPC), 1973 had Section 95, which gave the power to the State to seize publications that had seditious, obscene, or otherwise criminally punishable material. BNSS Section 98 continues the doctrine but brings it in line with the Bharatiya Nyaya Sanhita, 2023's new penal provisions.

Accordingly, the purpose is the same: to prohibit the dissemination of objectionable, seditious, or obscene material and confer procedural power upon the government to confiscate the same. It also inherits the criticisms of the previous law, particularly regarding the risk of censorship and abuse.

Offences Triggering Forfeiture under BNSS

The section makes reference to various provisions of the Bharatiya Nyaya Sanhita (BNS), 2023. These are:

BNS Section	Offence Description	Relevance to Section 98
Section 152	Encouraging enmity between groups	Publications that instigate hatred or communal disharmony can be forfeited
Section 196	Sedition or seditious material	Forfeiture of seditious writing or speeches in print
Section 197	Prejudicial statements against national integrity	Prevents dissemination of material that threatens sovereignty
Section 294	Obscene publications	Books, drawings, or photographs with obscene material
Section 295	Insults to religion or religious beliefs	Forfeiture of publications that instigate religious tension
Section 299	Defamatory publications	Prevents individuals and communities from defamatory printed or visual matter

This table points out the extent to which Section 98 is bound to substantive criminal law. Forfeiture is not arbitrary; it is only for the content that is punishable under these determined provisions.

Key Features of BNSS Section 98

1. State Government's Power

The power rests with the State Government and not with the police. A formal notice declaring the grounds of opinion has to be given. This provides a sense of accountability.

2. Scope of Materials Covered

The section extends not merely to newspapers and books, but to documents in a broad sense to cover paintings, drawings, photographs, or other visible representations. This extends the coverage beyond the normal print medium to cover visuals.

3. Effect of Notification

On issue of notification, all copies of the notified publication stand forfeited to the Government. This makes seizure possible and circulation impossible.

4. Search and Seizure

Any police officer can seize forfeited material anywhere in India. Also, a Magistrate is empowered to issue a warrant authorising a police officer (not lower in rank than a sub-inspector) to search premises suspected of harbouring such publications.

5. Prohibition of Judicial Review

Orders made under Section 98 cannot be challenged in civil courts. They can be challenged only by the process under Section 99, which envisions an application to the High Court.

Procedure under Section 98

Procedure of Section 98 can be explained step by step:

Assessment by State Government – A publication seems to carry material punishable under certain BNS sections.
Issuance of Notification – The State Government sends a notification specifying clearly the reasons of its opinion.
Effect of Forfeiture – All copies of the publication are forfeited.
Seizure by Police – Police authorities are authorized to seize such material anywhere in India.
Search Warrant – A Magistrate can authorize police (at least sub-inspector grade) to conduct searches of suspected material within premises.
Challenge – Any challenge shall be preferred to the High Court under Section 99 BNSS.

Remedies under Section 99

Whereas judicial review is restricted under Section 98, Section 99 is the procedural safeguard. Under this section:

The publisher, author, or interested party can approach the High Court challenging the notification of the government.
The High Court will consider whether the material actually carries content that is punishable under the indicated BNS sections.
Where dissatisfied, the High Court can invalidate the forfeiture order.

This ensures that although the State Government has the initial initiative, judicial scrutiny remains accessible through an orderly process.

Constitutional Dimensions

1. Article 19(1)(a): Right to Freedom of Speech and Expression

Section 98 has a direct effect on press freedom. By allowing forfeiture of publications, it curtails dissemination of ideas, writings, and images. Yet, Article 19(2) of the Constitution allows reasonable restrictions on the basis of:

Public order
Decency or morality
Sovereignty and integrity of India
Security of the State

The provision is therefore constitutionally justifiable, though its application should be proportionate.

2. Judicial Review and Safeguards

The restriction on direct challenges other than through Section 99 has been criticized for restricting judicial remedies. Courts, however, have upheld analogous provisions under the CrPC, subject to the availability of an opportunity to challenge through higher judiciary.

3. Risk of Misuse

Critics contend that such provisions can be abused to quell dissent, stifle journalistic freedom, or smother artistic freedom. Therefore, open reasoning in the government notification and vigilant judicial review by High Courts are necessary.

Judicial Precedents

Indian courts have addressed similar provisions in the earlier CrPC. Some principles of guidance are:

Harnam Das v. State of Uttar Pradesh (1961) – The Supreme Court ruled that a notification issued by the government should expressly specify reasons of opinion for forfeiture. Generalised or vague reasons will not do.
Virendra v. State of Punjab (1957) – The Court reiterated that free press can be curtailed, but the power has to be used strictly and in good faith.
Kartar Singh v. State of Punjab (1994) – Restated that legislation limiting publications has to meet the test of reasonableness under Article 19(2).

These decisions continue to inform interpretation of Section 98 BNSS.

Comparative Perspective

Several jurisdictions permit forfeiture of objectionable publications. For instance:

UK Obscene Publications Act, 1959 gives courts power to confiscate obscene literature.
US law limits obscene material but enjoys greater First Amendment protection.
Singapore maintains strict censorship legislation allowing forfeiture of objectionable books or movies.

India's stance falls short of these extremes: it acknowledges free speech but allows limits through statutory forfeiture.

Practical Implications

For Publishers and Authors

Must be in compliance with BNS provisions prior to publication.
Risk of forfeiture implies editorial teams require more robust legal scrutiny.

For Journalists and Media Houses

Political or sensitive reporting needs to be sensitively weighed against sedition and public order legislation.
Knowledge of Section 98 protection can assist in preparing for legal reactions.

For Law Enforcement

Are required to stick to procedural protections.
Arbitrary detentions without legal warning or warrant may be overturned.

Criticism and Concerns

Possible Censorship – Section 98 can be exploited by governments to silence critics.
Vague Definitions – "Document" encompasses works of art and photography, possibly discouraging artistic expression.
Delayed Remedies – High Court challenges under Section 99 may take long, depriving publishers of speedy relief.
Chilling Effect – Threat of forfeiture could deter aggressive journalism or creative innovation.

Conclusion

BNSS Section 98 is a continuation of India's long-standing legal tradition regarding forfeiture of objectionable publications. It allows the State Government to act speedily against materials that pose a risk to public order, decency, or national integrity. Equally, it maintains a path for judicial review under Section 99.

The actual challenge comes from just and wise use of this power. Abuse can destroy press freedom and artistic freedom, while prudent enforcement guarantees security of society and constitution values. As the BNSS model matures, courts will have a determining role in upholding the sensitive balance between state power and basic rights.

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