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The Indian Penal Code, 1860 deals with offences according to Chapter VI against the Administration (Section 121 to Section 130). These codes are meant to guarantee patient security of the state as a whole. In the case of crimes against the State, such as life imprisonment or the death penalty, the survival of the State may be shielded by the awarding of substantial penalties. Offenses against both the state and the government in order to disrupt public peace and tranquility, public order and national integration.
Waging war means an effort to try to accomplish any objective of public nature by some force and violence. Such a war happens when many individuals rise and gather against the State in order to use violence and intimidation to procure an object of public nature. In addition to establishing an offence against State, the objective and inclination are taken into account and not the murder or even the force.
The phrase ‘waging war’ should be comprehended in the broad sense and can only imply waging war in the manner usual in war. Overt activities such as the selection of persons, guns and ammunition are not included. In the international context, this form of war often does not involve an inter-country war involving military operations between two or more countries.
In accordance with Section 121, it has been made clear that ‘war’ is not conventional warfare between countries, but it is a form of war to join or organize an uprising against the Government of India. Waging war is a form of extreme violence to achieve some public objective.
Waging War against Government of India
Section 121 of Section 123 of the Code concerns the conduct of wars against the Government of India. Here, the phrase ‘Government of India’ is used in a much broader sense, that is, to conclude the Indian State which originates the authority and responsibility of authority from the will and consent of its people. In other words, this term means that while the State receives the power of authority from Foreign Public Laws, the authority is, however, vested and exercised by the representative government by the citizens of the territory.
The following are deemed to be necessary offences under Section 121, as they need to be proven in addition to establishing an offence for war against the Government of India:
The Accused must have;
- Waged war; or
- Attempted to wage war; or
- Abetted the waging of war.
Such a war must be against the state;
The sentence requires either life imprisonment or the death penalty under this clause. It is also possible to levy a fine in such situations.
In a wider context, the term ‘whoever’ is used and is not only limited to those who owe allegiance to the existing government. Even the Supreme Court of India cannot justify whether or not foreign nationals entering the territory of India should be held guilty in order to impede the functioning of the government and to destabilize society.
For example, the first and primary offence committed by the appellant and other conspirators in the case of the Mumbai Terror Attack (Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra) was the offence of waging war against the Government of India. The attack, targeted at Indians and India, was by foreign nationals. This attack was aimed at accelerating communal tensions, affecting the country’s financial situation and, most importantly, demanding that India surrender to Kashmir. Accordingly, the appellant was rightly found guilty, under Sections 121, 121A and 122 of the Code, of declaring war against the Government of India.
Conspiracy to Wage War
In 1870, Section 121A was introduced to IPC. It notes that in order to establish a conspiracy, it is not mandatory that any act or criminal omission should take place explicitly.
Two types of conspiracies are discussed in this section:
- Conspiring, inside or without India, to commit an offence punishable by Section 121 of the Code.
- Conspiring to overawe, that is to say, bullying the government by means of criminal force or a simple display of criminal force.
The penalty under this provision includes, along with a fine, imprisonment for ten years or life imprisonment. Such punishment may be provided both by the central government and the government of the state.
- Preparation to Wage War
The plans for war are governed by Section 122 of the IPC. There is a distinction between the attempt to commit the offence and the planning. The core elements of this section are:
- Compendium of men, weapons and ammunition.
- There must be a purpose to wage war or make preparations to wage war for such compendium.
- The accused must partake in such compendium.
- The war should be perpetrated against the Government of India.
The penalty under this provision is either life imprisonment or, along with a fine, imprisonment for ten years.
For example, if printing material is found in the accused’s room along with other items, then they are neither considered objectionable nor infuriating. Therefore, under this clause, the accused cannot be prosecuted.
- Concealment to Facilitate Design to Wage War
The concealment of design to wage war is dealt with in section 123 of the IPC. The essential principles of this section are:
- There has to be a presence of a layout which is prepared to wage war against the Government of India.
- The deception should be developed with the purpose of promoting the war against the Government of India.
- The person should be identifying about the concealment of the design.
Under this clause, the penalty is imprisonment of up to 10 years along with a fine.
In the Parliament attack case, for example, the defendant had plot data along with a terrorism scheme. Accordingly, his unlawful omission made him liable under IPC Section 123.
- Assault on President or Governor of State
Whoever, in order to induce or compel the President of India or the Governor of any State to exercise or refrain from exercising, in any manner whatsoever, any of the lawful powers of that President or Governor, assaults or wrongfully restrains, or attempts, by criminal force or the demonstration of criminal force, to unlawfully restrict or overrule, or attempts to override, such President or Governor, shall be punishable with imprisonment of either depiction for an imprisonment which may extend to seven years, and shall be liable to penalty.
This offense is Cognizable and Non-Bailable and it may shall be tried by Court of Session.
Sedition is dealt with here in section 124A. Under this Section, any individual who by:
- Words, spoken or written; or
- Signs; or
- Representations visible; or
It is punishable by taking or even threatening to bring hate or excite disaffection to the Government of India (including the feeling of antagonism and treachery) with:
- Life imprisonment in certain cases together with a fine; or
- Imprisonment in certain cases for up to three years along with a fine; or
Essential Ingredients of Section 124A
- Words, Sign, Visible Representation or Otherwise
Sedition may be achieved by words, written or spoken, by signs, or by visual representation in different ways. Music, publications, presentations (films and puppets), sculptures, photos, cartoons, drawings, and all other techniques are seditious deeds.
Under sedition, whether or not the seditious publications are being used by the real authors is immaterial. In such a circumstance, the editor, publisher or printer is equally liable as the author. Thus, whoever wrote or used it is guilty of sedition for the intent of thrilling disaffection. In the event of the accused pleading that he did not approve the article, the accused is responsible for the burden of evidence. In addition, if the accused is unaware of the substance of the article or paper written, he is not guilty under this clause because the intention is absent.
Sedition does not simply consist of words spoken or written, but may also be of other kinds, such as signs and visual representation. For example, a woodcut or engraving of any sort may illustrate this.
- Conveys or Endeavors to Carry into Abhorrence or Contempt
The phrase ‘brings or threatens to carry hate or contempt’ tries to disagree less with or interfere less with the freedom of speech.
Writers in the national press, for example, are not permitted to write or indulge in unethical or dishonest motives. A writer is not considered seditious when he publishes an article with a cool, unsentimental and dispassionate outlook and addresses his small emotions that may or may not cause a man to think. If, however, the article goes beyond and has unjust, immoral and deceptive motives, then it is known that such an article is seditious.
- Excite Disaffection
Disloyalty and all other feelings of enmity are part of the word’ disaffection.’ An act of disaffection must be aroused among individuals in order to amount to sedition. In other words, among the citizens of the state, the feeling of disaffection must be stirred up.
The disaffection can be aroused in several ways as per this section, such as:
- Discussion, historical or metaphysical,
- Drama, etc.
In order to settle for sedition, publication is required. The publication, including articles, may be of any form and manner.
- Undertaking depredation with the Government of India on territories of Force at ease – Section 126
Whoever commits depredation in the territories of any Power in alliance or in peace with the Government of India, or makes arrangements for depredation in the territories of any Power, shall be punished by imprisonment of any description for a period of up to seven years, and shall also be liable for the fine and forfeiture of any property used or intended for use in the depredation or for acquisition of such property.
Punishment for the offense – 7 Years + Fine + Land forfeiture
Cognizable Knowable Not-Bailable, tried by The Session Court
- Receipt of war or predatory property referred to in sections 125 and 126
Whoever possesses any property which is known to have been taken into account in the commission of any of the offences referred to in sections 125 and 126 shall be punished by imprisonment of either description for a period of up to seven years, and shall be liable for the fine and forfeiture of the assets so obtained.
This offense is cognizable, non-bailable and shall be tried by Court of Session.
- Nasir khan v. State of Delhi, Appeal (crl.) 734 of 2003
“The Supreme Court observed that it is a fundamental right of every citizen to have its own political theories and concepts and to work through their constitution.” Arun Jaitley narrowly avoided conviction for sedition in 2015. In a Facebook post, he had denounced the Supreme Court for shooting down the government’s proposed National Judicial Appointments Commission.
In response, under Section 124A, a judicial magistrate had ordered that he be booked. The High Court of Allahabad came to his rescue, stating that they should have a ‘pernicious propensity’ to cause public disorder for any words to become seditious. The sedition law continues to be invoked, despite such stringent interpretations of the section, in circumstances where even the prerequisites of such a charge are not met.
In governing and maintaining public order, crimes against the state play a key role. The citizens of the state have a right to criticize the government’s policies, but they should not abuse their freedom to hurt the people or the government around them. It is a punishable offence to wage war against India and against authority. In the case of attack against them, the law also covers high officials, such as the President, the Governor of every State, etc. Most notably, one of the most serious cognizable crimes against the State is deemed to be sedition. It can therefore be assumed that, for the betterment of the State, the State must limit the liberty of the citizens of the country.
Author: Avnip Sharma
Editor: Kanishka Vaish, Editor, LexLife India.