Waging War against the state in India

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INTRODUCTION : Waging War

Waging war against the state means carrying out a organized and deliberate attack upon the government. Waging War an offence to conspire against the Government of India by means of criminal force, or the show criminal force.

Section 121 of the Indian Penal Code states regarding waging or attempting to wage war or abetting waging of war against the Government of India thus: “whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine.”

The offences against the state are provided in chapter VI of Indian Penal code, 1860. Further sections of this chapter (Section 121 to 123) talks about the parts where waging war is punishable. Although waging war against the state is different from other crimes, which will be explained herein.

ESSENTIAL OF OFFENCE

Upon analysing Section 121 of the IPC, the offence of waging war can be said to have 2 essentials –

  • Conspiracy, attempt or commission of a ‘war’(here)
  • Against the Government of India

Now we will be scrutinizing these essentials to clear any ambiguity that may arise from plain reading of it.

MEANING OF WAR

War in the phrase ‘Waging war against the state’ in the above section should not be misunderstood with wars between two country and war including military operations. To clear the meaning of war in section 121 we will refer to paragraph 29 of Hardik Bharatbhai Patel v. State of Gujarat and ors –

“29. The concept of war embodied in Section 121 IPC is not to be understood in the inter-national law sense of inter-country war involving military operations by and between two or more hostile countries. Section 121 IPC is not meant to punish prisoners of war of a belligerent nation. Apart from the legislative history of the provision and the understanding of the expression by various High Courts during the pre-independence days, the Illustration to Section 121 itself makes it clear that ‘war’ contemplated by Section 121 is not conventional warfare between the two nations. The organizing or joining an insurrection against the Government of India is also a form of war.”

Also in State (NCT of Delhi) v. Navjot Sandhu alias Afsan Guru[i] the court in paragraph 275 mentioned that – “War, terrorism and violent acts to overawe the established Government have many things in common. It is not too easy to distinguish them, but one thing is certain, the concept of war imbedded in Section 121 is not conventional warfare between two nations.”

EXTENT OF ‘GOVERNMENT OF INDIA’ in SECTION 121

The other most important essential of this section is that the war is against the Government of India. Now one needs to understand what is the extent of Government of India. To know the extent, we look into the case of Mohammed Ajmal Mohammed Aamir Kasab v. State of Maharashtra[ii] where the court in its judgement mentioned –

“545. The question that arises for consideration, therefore, is what is the true import of the expression “Government of India”? In its narrower sense, Government of India is only the executive limb of the State. It comprises a group of people, the administrative bureaucracy that controls the executive functions and powers of the State at a given time. Different governments, in continuous succession, serve the State and provide the means through which the executive power of the State is employed. The expression “Government of India” is surely not used in this narrow and restricted sense in Section 121. In our considered view, the expression “Government of India” is used in Section 121 to imply the Indian State, the juristic embodiment of the sovereignty of the country that derives its legitimacy from the collective will and consent of its people. The use of the phrase “Government of India” to signify the notion of sovereignty is consistent with the principles of Public International Law, wherein sovereignty of a territorial unit is deemed to vest in the people of the territory and exercised by a representative government.

546. It is important to note here that earlier the word used in Section 121 (as well as all the other Sections referred to above) was ”Queen”. After the formation of the republic under the Constitution it was substituted by the expression “Government of India” by the Adaption of Laws Order of 1950. In a republic, sovereignty vests in the people of the country and the lawfully elected government is simply the representative and a manifestation of the sovereign, that is, the people. Thus, the expression “Government of India”, as appearing in Section 121, must be held to mean the State or interchangeably the people of the country as the repository of the sovereignty of India which is manifested and expressed through the elected Government.”

HOW IS WAGING WAR DIFFERENT FROM OTHER CRIMES?

A crime has 4 main stages – (i) Intention; (ii) Preparation; (iii) Attempt and (iv) Causation.

 Most of the offences mentioned in Indian Penal Code are punishable at (iii) and (iv) stage i.e. Attempt of that offence and Commission of that offence. But in case of Waging war, mere intention to commit the offence is a crime.

So waging war against the state is punishable at each and every stage of crime.

 

Difference between Waging war and Rioting

BASIS WAGING WAR RIOTING
MEANING Where the rising is for general purpose, affecting the whole community and directly strikes at the government department then it is waging war against the state. Where the rising is primarily to accomplish some private purpose, affecting only those who are engaged in it without questioning the government authority then it is a riot irrespective of how numerous or outrageous it is.
PURPOSE It is against the Government of India. It is against the public tranquillity.
SERIOUS OFFENCE It is a more serious offence as compared to rioting. It is a less serious offence as compared to waging war.
NUMBER OF PERSONS The number of persons in waging war is not specific as it has not been mentioned anywhere. The number of persons in rioting must be five or more.
MENTION IN THE CODE It is mentioned and explained under Section 121 to 123 of the Indian Penal Code, 1860. It is mentioned and explained under Section 146 to 148 of the Indian Penal Code, 1860.
PUNISHMENT Serious punishment is given in such a case, that is, life imprisonment, or the death penalty, and fine. Comparatively, less serious punishment is given, that is, imprisonment for two years, or fine, or both.

CONSPIRE TO WAGE WAR AGAINST THE STATE

Conspiracy to commit offences against the state is also punishable under Indian Penal Code, 1860. Now waging war being one of them, its conspiracy is punishable under Section 121A of Indian Penal Code, 1860.

Section 121A of Indian Penal Code states –

121A. Conspiracy to commit offences punishable by section 121 —

Whoever within or without India conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with 1imprisonment for life, or with imprisonment of either description which may extend to ten years, 1and shall also be liable to fine.

This was explained in the case of Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra –

Paragraph 43 of the judgement states –

“A conspiracy is a combination of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. This section (121A) draws a distinction between the Government of India and State Government. Any conspiracy to change the form of the Government of India or any State Government, even though it may amount to an offence another section of the code, would not be an offence under this section, unless it is a conspiracy to overawe such Government by means of criminal force or show of criminal force.

The words ‘conspires to overawe by means of criminal force or the show of criminal force to the Government of India, or any State Government’ in this section clearly embrace not merely a conspiracy to raise a general insurrection, but also a conspiracy to overawe the Government of India or any State Government.”

Waging War against Power

War Against Asiatic Power

Section 125 deals with ‘Waging war against any Asiatic Power in alliance with the Government of India. This Section contempt the waging of war against any Asiatic power. Here, the accused should have waged war against the State or attempted to wage war, or abetted the waging of war. The essentials of this Section are:

  • There must be an Asiatic State along with an international influence.
  • Such a State should be other than India.
  • Such a State should be in alliance with or at pace with the Government of India.

The punishment under this Section is life imprisonment or imprisonment for seven years along with a fine in some cases; or fine.

Depredation in Friendly Countries

Section 126 deals with ‘Depredation on territories of Power at peace with the Government of India’. Depredation refers to an act of attacking. The essentials of this Section are:

  • The accused should have committed or prepared to commit depredation.
  • The act must be done on the territories of any power which is in alliance with or at peace with the Government of India.

Punishment under this Section is imprisonment for a term of seven years along with a fine. Any property used for the purpose of committing such offence or acquired as a result of this offence can also be forfeited.

NOTE: Section 126 is wider than Section 125, as the latter deals with the waging of war against Asiatic Power in alliance with the Government of India whereas the former Section applies to a Power which may or may not be Asiatic.

 

REFERENCES

[i] 2005 11 SCC 600

[ii] AIR 2012 SC 3565