OFFENCE AGAINST THE STATE: WAGING WAR

Authors:

Maitreyee Bhardwaj (Symbiosis Law School, Pune)

Rishabh Sharma (Jims School of Law, GGSIPU, New Delhi)

Editor:

Yash Raj Gupta (Department of Law, CU)

INTRODUCTION

The Indian Penal Code, 1860 deals with “Offences against the State” under Chapter VI (Section 121 to Section 130). The purpose of these provisions is to ensure the safety of the State as a whole. The existence of the State can be safeguarded by giving severe punishments in case of offences against the State such as life imprisonment or the death penalty. Offences against the State as well as the government to disturb the public tranquillity, public order and national integration. Waging war means an attempt to fulfil any purpose of public nature by the means of violence. Such a war occurs when several people rise and assemble against the State to attain any object of public nature by force and violence. To constitute an offence against the State, the purpose and intention are taken into consideration and not the murder or the force. The phrase ‘waging war’ must be understood in the general sense and can only mean waging war in the manner usual to war. It does not include overt acts like a collection of men, arms and ammunition. Also, in the international sense, the inter-country war involving military operations between two or more countries is not included under this type of war. Under, Section 121 it has been made clear that ‘war’ is not conventional warfare between countries, however, joining or organising an insurrection against the Government of India is a form of war. Waging war is a way to accomplish any purpose of public nature by violence.

WAGING WAR AGAINST THE GOVERNMENT OF INDIA

 of the Code deals with waging war against the Government of India. Here, the phrase ‘Government of India’ is used in a much wider sense, that is, to imply the Indian State which derives the right and power of authority from the will and consent of its people. In other words, this expression signifies that although the State derives the power of authority from Public International Laws, however, such authority is vested by the people of the territory and is exercised by the representative government. Under Section 121, the following are considered as essentials of the offences as they need to be proved to constitute an offence for waging 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 punishment under this Section includes either life imprisonment or the death penalty. A fine can also be imposed in certain cases. Section 121A was added to IPC in 1870. It states that no act or illegal omission needs to take place explicitly to constitute a conspiracy. This section deals with two types of conspiracies firstly Conspiring to commit an offence punishable under Section 121 of the Code, within or without India. Secondly Conspiring to overawe, that is, intimidated through criminal force or a mere show of criminal force against the Government. The punishment under this Section includes imprisonment for ten years or life imprisonment along with a fine. Such punishment can be given by the Central Government as well as the State Government. Section 122 of the IPC deals with the preparation of war.

There is a difference between an attempt and preparation for committing the offence. The essentials of this Section are collection of men, arms and ammunition. There must be an intention to wage war or make preparations to wage war for such collection. The accused must participate in such collection. The war must be waged against the Government of India. The punishment under this Section is either life imprisonment or imprisonment for ten years along with a fine. For instance, if print material along with other things is found in the room of the accused, then they are neither considered objectionable nor infuriating. Thus the accused cannot be convicted under this Section. Section 123 of the IPC deals with the concealment of design to wage war. The essentials of this Section are There must be an existence of a design which is prepared to wage war against the Government of India. The concealment should be done to facilitate the war against the Government of India. The person should be knowing about the concealment of the design. The punishment under this Section is imprisonment of up to ten years along with a fine. For instance, in the Parliament attack case, the accused had information of conspiracy along with a plan of terrorists. Thus his illegal omission made him liable under Section 123 of the IPC.

WAGING WAR AND RIOTING

The offence of waging war is sometimes confused with rioting. In waging war the object is to challenge the authority of the government; there has to be an uprising or insurrection for some general-purpose against the established authority of the government. In rioting, on the other hand, force or violence must be used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly. An unlawful assembly has a minimum of five members and their common object must fall under any of the five clauses of section 141 of the Code. There is no such requirement under section 121 of the Code. As seen above, in addition to the waging war, attempt and abetment of waging war are also punishable within this section. Attempt to wage war is the stage when the person attempting has done all that he could do or at least has taken all the more important steps that he could take towards waging war, but the main crime of waging war does not result. Abetment of waging war can be done by any of the three ways given under section 107 of the Code, that is to say, by instigation, by conspiracy, or by intentional aiding.

The Madras High Court has held that since the waging war is a continuous offence under section 121 of the Code, a charge that the accused had waged war more than three times during a year is not violative of section 234 of the Code of Criminal Procedure, 1898 (corresponding to section 219, Code of Criminal Procedure, 1973) and is, therefore, legal.

Where the accused published a book of poems wherein the government and the white rulers were shown to be blood-thirsty and eager to commit murder, and in which suggestions were given to take up arms, form secret societies and adopt gorilla warfare against them, it was held that the book abetted waging war against the government and the accused was, therefore, punishable under this section. Where the object of a mob was not mere resistance against a district magistrate, or to any isolated action, or a particular purpose, but the subversion of the whole British government and establishment of a khilafat movement, all those who had taken part in it were held guilty under this section. On the other hand, where there was only a pledge of a society undertaking to propagate the political faith that capitalism and private ownership were bad and, therefore, community’s interest in the form of socialism should be protected wherein the will of the working class would prevail, it was held that propounders of this belief could not be held to have committed an offence under this section even though they desired genuinely a change in the system of governance itself and had used an expression like ‘fight’ and ‘war’ in their pledge. A deliberate and organised attack on government forces by armed persons to prevent the government from collecting capitation tax would make the attackers guilty under this section. The accused, ever since his release from prison, had planned and plotted against the government, and had been executing his plans precisely and ruthlessly even at the cost of human life. The Calcutta High Court held him guilty under this section. The Calcutta High Court has also held that the expression ‘wages war’ in section 121 must be interpreted in its ordinary sense, and so interpreted it does not include conspiracy to wage war, or the collection of people, arms and ammunition with the object of waging war. Conspiracy to wage war was subsequently made an offence under section 121-A of the Code. Since it is explicitly mentioned in section 94 of the Code that the defence of compulsion has excepted murder and offences against the state punishable with death from its purview, it is clear that this defence is not available concerning an offence under section 121 of the Code. However, courts are free to mitigate the punishment once it is proved that the accused had been compelled to commit this offence.

In State of Gujarat v. Jaman Haji Mamad Jat, 2006, some Pakistani nationals who allegedly intruded thirty kilometres into Indian territory was arrested by the Border Security Force. Explosives were recovered from them. Charged under sections 121, 122 and 123 of the Code. It was held by the Gujarat High Court that the case was not of rarest of rare category and so death sentence against them was converted into imprisonment for life.

The offence under this section is cognizable, non-bailable and non-compoundable, and is triable by the court of session.

CONCLUSION

Offences against the State plays a crucial role in regulating and maintaining public. These offences are detrimental to State security and it disturb tranquility in the society and prejudicial to national integration. The people of the State have a right to criticise the policies of the Government, however, they should not misuse their liberty to cause harm to the people around them or the Government. Waging war against India and power is a punishable offence. The law also protects the high officials, such as the President, the Governor of every State etc. in case of assault against them. Most importantly, sedition is considered to be one of the most dangerous cognizable offences against the State. Thus, it can be concluded that the State needs to restrict the freedom of the people of the country for the betterment of the State.

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