Offences Against the State: Waging War, Assault, Escape and Sedition | Overview Waging War Assault on High Officials Escape of State Prisoner Sedition Chapter VI of the Indian Penal Code contains a provision related to offences against the state like Waging War, Assault, Escape and Sedition. This chapter corresponds to the law in England dealing with high treason.… Read More »

Offences Against the State: Waging War, Assault, Escape and Sedition | Overview Waging War Assault on High Officials Escape of State Prisoner Sedition Chapter VI of the Indian Penal Code contains a provision related to offences against the state like Waging War, Assault, Escape and Sedition. This chapter corresponds to the law in England dealing with high treason. This particular chapter presumes that all the citizens of a country are its subjects and are obligated to be loyal and respect...

Offences Against the State: Waging War, Assault, Escape and Sedition | Overview

Chapter VI of the Indian Penal Code contains a provision related to offences against the state like Waging War, Assault, Escape and Sedition. This chapter corresponds to the law in England dealing with high treason. This particular chapter presumes that all the citizens of a country are its subjects and are obligated to be loyal and respect its sovereignty.

Hereunder the four acts which will constitute an offence against the state:

  • Waging War
  • Assault on high officials
  • Escape of state prisoner
  • Sedition

I. Waging War

This particular provision is applicable to both the citizens of the country and foreigners as is implied by the term ‘whoever’ occurring in the section. Every person waging, attempting or abetting war against the Govt of India will be held guilty under this section.

Section 121 – Waging, or attempting to wage war, or abetting waging of war, against the government of India

A person by virtue of his birth in the country naturally owes allegiance to it and a foreigner is bound by this law as it looks up to the state for safeguards.[1]

Three stages of waging a war against a government are dealt in by this section which has been enumerated as follows:

  • Abetment
  • Attempt
  • Actual war

The acts amounting to any of the aforementioned events or action will amount to the offence of waging war and thereby same punishment has been sanctioned for all the three activities. However, a general law related to abetment, a distinction pertinent to punishment is made when abetment succeeds and when it fails.

The reason behind imposing the same punishment for successful abetment and a failed abetment is that such acts are condemned as the highest offences against a state. Another reason is that if a government is subverted due to an abetment then the criminal is secure from punishment as the government has been dislodged.

Such successful rebels subsequently make the penal laws impotent. An organized and deliberate attack upon sitting government offices and forces will amount to the offence of waging a war.[2]

Intention is a requisite ingredient to constitute the offence of waging a war and therefore, it is necessary that the prosecution proves that the arms and ammunition were seized to accomplish waging a war upon the state.

If such acquisition of arms and ammunition was with intent to gain personal advantage or private requirement, then the accused cannot be convicted under this section. Pledging to dislodge capitalist model and private ownership, and to act in order to establish a socialist state does not constitute an offence of waging war as a person is free to propagate the political faith his choice.[3]

It must be noted that an offence of abetment comes into motion when a person translates his inciteful recitations or hatred against the state into clear action.

Section 121A – Conspiracy to commit offences punishable by section 121

Two kinds of conspiracies are dealt with in Section 121A and those are:

  • Conspiracy to wage war against the Govt of India
  • Conspiracy to overthrow by means of criminal force or by showing criminal force

An act which may not even constitute abetment will still be considered an offence under this Section as soon as two persons or more than that reach an agreement to commit an illegal act or a legal act via illegal means. These acts will suffice to establish conviction under this section. The word ‘overawe’ occurring in the section refers to the situation when the Govt is forced to either yield to the force or the govt has to expose its official to significant.[4]

Section 122 – Collecting arms, etc., with intention of waging war against the Govt of India

Mere preparation to wage war against the state is punishable under this Section. The purpose of this Section to terminate any attempt of waging war against the Govt of India and penalise such action with imprisonment for life or imprisonment which may extend till 10 years. Nevertheless, the existence of intention must be concurrent with such preparation.

Section 123 – Concealing with intent to facilitate design to wage

To establish conviction under this Section, the following ingredients have to be proved:

  • Presence of a design to wage war against the Govt of India
  • Accused was aware of such design
  • He aided in concealing the design
  • His motive was to facilitate waging war or was aware that the design would likely result in facilitating waging war

Section 125 – Waging war against any Asiatic Power in alliance with the Govt of India

This section was inserted to safeguard cordial relations with the Asiatic Powers. The section is based on the international obligation that a nation must respect another nation and commit to peaceful co-existence.

Section 126 – Committing depredation on territories of power at peace with the Govt of India

Commission of plunders or depredation on other states which is in peace with India by any citizen of India is punishable under this section. Unlike Section 125 which is applicable only to ‘Asiatic’ powers, this Section is to any country in peace with India.

The term ‘depredation’ connotes to the act of pillaging by animals or men for the purpose of general robbery. Usually, the act of theft or robbery is in reference to an individual’s property or body, however, this amounts to plundering when the menace is caused in general to everyone in the territory.

Section 127 – Receiving property taken by war or depredation mentioned in Sections 125 and 126

The receipt of property during depredation or in war is punishable by Section 127 if the receipt was done with the knowledge that the property was acquired during the commission of waging a war against any Asiatic power in allegiance with India or during the commission of depredation of a nation in peace with India.

II. Assault on High Officials

Section 124. Assaulting President, Governor, etc. with intent to compel or restrain the exercise of any lawful power

A careful reading of this section will culminate to the conclusion that it is an extension of the 121A (3). Any person holding an official holding high office by committing assault or wrongful restraint on that person is punishable under this Section for the purpose of deterrence.

The primary motive behind this section is to create a fearless atmosphere for the high officials to function and discharge their duties efficiently with no apprehension to their bodies.

III. Escape of State Prisoner

  • Section 128 – Public Servant voluntarily allowing prisoner of state or war to escape AND
  • Section 129 – Public servant negligently suffering such prisoner to escape AND Section 130 – Aiding escape of, rescuing or harbouring such prisoner

All the three aforementioned sections are related to offences with respect to state prisoners. A public servant is made punishable with imprisonment for life or a term which may extend till 10 years and a fine for allowing a prisoner of war or state to escape. Any negligence on the part of the public servant which resulted in allowing the escape of the prisoner is penalised by

Section 129. This offence is imposed with a much lesser punishment of three imprisonments and fine. Aiding, assisting or harbouring a prisoner of state or war by any person in order for him to escape lawful custody is an offence under Section 130 and is imposed with life imprisonment or imprisonment for 10 years and fine.

The terms ‘state prisoner’ occurring in the abovementioned Sections connotes to a person whose arrest is necessary in order to maintain public peace and tranquillity with other friendly nations and to secure the interest of the citizens of India. Whilst a ‘prisoner of war’ refers to a person who is taken in arms during a war, on other hands the persons who surrender or submit after they’ve been taken in arms cannot be said to be a prisoner of war. Such individuals are to be treated like mere prisoners until the hostilities due to war come to an end.

IV. Sedition

Section 124A was carved out as Section 113 of Macaulay’s draft Penal Code of 1837. Thereafter, it was suggested to be included in the Penal Code, however, there was no mention of this section when the Indian Penal Code, 1860 was enforced due to unaccountable reasons. The need for insertion of a provision regarding Sedition was felt in 1870 by virtue of the Indian Penal Code (Amendment) Act 1870.

Section 124A as described by Sinha CJ is based on the principle that “every State, whatever its form of Govt, has to be armed with the power to punish those who by their conduct, jeopardize the safety and stability of the state, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public order”.[5]

In the case of Reg v. Alexander Martin Sullivan,[6] Lord Fitzgerald had laid down the following:

“Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or writing which are calculated to disturb the tranquillity of the State, and lead ignorant persons to endeavour to subvert the government and laws of the Empire.”

Subsequently, Coleridge J in the case of Reg v Aldred,[7] fastened similar attributes to the meaning of ‘sedition’ and observed that “word sedition in its ordinary natural significance denotes a tumult, an insurrection, popular commotion or an uproar; it implies violence or lawlessness in some front”.

Hereunder are the essential ingredients required to establish conviction under this Section:

The means which could be used to commit the seditious act is words, either written or spoken, signs or visual representation, or otherwise. The term ‘visual representation’ is indeterminate and can encompass any form of communication which is visible to eyes.

Any action whose meaning is conveyed through gestures, motions and dramatic actions of the performers are also covered under the purview of Sedition.[8] Act of distributing seditious material also amounts to sedition.[9]

According to Section 124A such words either uttered or written, visual representation must bring or attempt to bring contempt or hatred towards the sitting Govt. Further, a person carrying out a seditious act is penalised under this section irrespective of the fact whether he succeeds or fails. To constitute the offence of sedition it is sufficient that he attempts to intersperse hatred and excites disaffection against the State.[10]

Explanation 1 affixed to Section 124A comprises of the word ‘disaffection’ which refers to feelings of animosity and disloyalty. In the case of Queen Empress v Bal Gangadhar Tilak,[11] the High court of Bombay had observed the following:

“Sedition means hatred, enmity, dislike, disloyalty, hostility, contempt and every form of ill-will to the government.”

The court in the case of King Emperor v. Sadashiv Narayan Balerao,[12] followed the same as the Bombay High court and rejected the Federal court view in the case of Niharendu Dutt Majumdar v King Emperor, which had ruled that act of disaffection may excite public disorder. Later the Apex court in the case of Kedar Nath was of the opinion that the observation made by the federal court are aligned with the idea of Article 19 of the Indian Constitution.

Section 17 of IPC has provided the meaning of ‘government’ which refers to ‘central government’ or ‘state government’. It is worthwhile to note that the expression, ‘government established by law’ is distinct from the persons running the administration or engaged in it.[13]

In the famous Chirol’s case, it was ruled that criticizing a particular government or campaigning to bring down the government by a ruling party does not constitute the act of exciting disaffection towards the government.

Further, Explanation 2 and 3 provide for adequate safeguards to fundamental rights of freedom to speech and expression guaranteed by the Indian Constitution. Therefore, expressing dissent or disapproving measures of the government in order to bring changes without participating in the excitement of hatred or disaffection towards the government cannot constitute an offence of sedition.

The means adopted to carry out such dissent must be lawful. Holding strong comments upon the measures or acts of the govt or its agencies, in order to better the condition of the people and to promote to alteration or cancellation of these measures by a lawful method is not sedition.[14]

The constitutional validity of Section 124A has been a controversy since the Constitution has come into force. In the case of Tara Singh v. State,[15] the contention that Section 124A is ultra vires the Constitution as it violates Article 19 (1) (a) which guarantees freedom of speech and expression. The court, in this case, observed that Section 124A does not have any place in modern India’s polity pattern.

Nevertheless, the Constitution Amendment Act, 1951, inserted the terms ‘in the interest of’ and ‘public order’ to Article 19 (2) espousing the requirement reasonable restrictions to the right of freedom of speech and expression.

Finally, this judicial unrest regarding Section 124A was put to rest by the Apex court in the landmark judgment of Kedar Nath v. State of Bihar. Hereunder is an excerpt of the judgment:

“The security of the state, which depends upon the maintenance of law and order is the very basic consideration upon which legislation, with a view to punishing an offence against a state is undertaken.

Such legislation has, on one hand, fully to protect and guarantee the freedom of speech and expression, which is the sina quo non of a democratic form of govt that our constitution has established. But the freedom has to be guarded against becoming a license for vilification and condemnation of the govt established by law, in words which incite violence or have a tendency to create public disorder.”

[1] Hari Singh Gour, Penal Law of India (vol 2, 11 edn, Law Publishers) p 1185

[2] Kunhi Kadir v. Emperor, AIR 1922 Mad 126

[3] Nazir Khan v. State of Delhi, AIR 2003 SC 4427

[4] Aravindan v. State of Kerala, [1983] Cr LJ 1259 [Ker]

[5] Kedar Nath v. State of Bihar, AIR 1962 SC 955

[6] [1868] 11 Cox’s Criminal Cases 44

[7] [1909] 22 Cox’s Criminal Cases 1, p 3.

[8] [1909] Cr LJ 456 [Mad]

[9] Balwant Singh v. State of Punjab, AIR 1995 SC 1785

[10] [1906] Cr LJ 1 [Bom]

[11] [1897] ILR 22 Bom 112

[12] LR 74 IA 89

[13] Kedar Nath v. State of Bihar, AIR 1962 SC 955

[14] Queen Empress v. Amba Prasad, [1897] ILR 20 All 55

[15] AIR 1951 East Punjab 27

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Updated On 31 May 2020 6:44 AM GMT
Shreya Sahoo

Shreya Sahoo

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