OFFENCES AGAINST THE STATE- WAGING OF WAR
Offences against the state are those offences in which the government, the representatives or the people of the state are victims. These offences are categorized under 5 broad categories: “
Waging, or attempting or conspiring to wage, or collecting men and ammunition to wage war against the Government of India (sections 121, 121A, 122, 123).
Assaulting President, or Governor of a State with intent to compel or restrain the exercise of any lawful power (section 124).
Sedition (section 124A).
War against a power at peace with the Government of India (section 125) or committing depredations on the territories of such power (sections 125–126).
Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring, a State prisoner (sections 128, 129, 130).”
Let us start with Waging of war against the Government of India or any officials.
WAGING, OR ATTEMPTING OR CONSPIRING TO WAGE, OR COLLECTING MEN AND AMMUNITION TO WAGE WAR AGAINST THE GOVERNMENT OF INDIA (SECTIONS 121, 121A, 122, 123).
Waging war (s. 121)
“Section 121. Waging, or attempting to wage war, or abetting waging of war, against the Government of India — 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.”
“Whoever” includes Indian as well as foreigners residing in India. Indians have a duty to protect and be loyal to the country since their birth. The right of Foreigners to reside in a territory is given only on a tacit condition that while they are relying upon the country for their protection, they should follow the laws of that land. This principle is called the de jure Gentium i.e., “allegiance and protection are reciprocally due from subject and sovereign.”
The act of waging war includes abet, attempt and the commission of the actual act of waging war. All the three acts are punishable under this section with the same punishment of death or imprisonment for life and fine or with both. The crime of waging war is considered to be a crime of the highest order that justifies its severe punishment. What is interesting to note is that in every offence under IPC, the punishment given after the completion of the offence is much severe than the punishment for attempt or abetment. However, in waging of war, there is no punishment after the successful completion of the offence because then the government would be subverted.
Meaning of waging war
The phrase “waging war” was defined in the case of Nazir Khan v. State of Delhi (AIR 2003 SC 4427) as an act similar to in a war. According to Black’s Law Dictionary, war means any “hostile contention by means of armed forces, carried on between nations, states, or rulers, or between parties in the same nation or state.” Creating such hostile contention is waging war against the government.
In State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru (AIR 2005 SC 3820), the court said that “We conceive the term ‘wages war against the Government’ naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would do, and it seems to us, we presume it did to the authors of the Code that any definition of the term so unambiguous would be superfluous.”
The expression, “in like manner and by like means as a foreign enemy”, suggests that the violent action of waging war has to be interpreted and compared with the intent of the foreign enemy. Like the foreign enemy would try to disturb the peace and public law and order or kill many people in the enemy country. Similarly, if anyone does such an act with the same intent to strike at the sovereignty of the state or such feeling motivates its conspiracy or actions then such an action would constitute waging war against the Government of India.
Terrorist Attacks
While not all terror attacks are constituted as waging of war against the government of India, but while some do, the Unlawful Activities (Prevention) Act, 1967 (act against terrorism) does not repeal section 121. Like in the case of Mumbai Attack, the accused were found guilty for waging war against the Government of India because of the fact that the killing was done to ensure that it brings shame to the country, economic crisis, communal violence, international disruption (foreign national killing) eventually leading a destructive environment in the country. The judgment held that the act was done like a foreign enemy would do and therefore, he was held guilty. [Mohammed Ajmal Mohammad Amir Kasab v. State of Maharashtra, (2012) 9 SCC 1]
Similarly, the Red fort terror attack case [Mohd. Arif v. State of NCT of Delhi, JT 2011 (9) SC 563] and the Parliament attack case [State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820] are the examples of the offence of waging war.
Conspiracy to wage war (s. 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 imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine.
Explanation—To constitute a conspiracy under this section, it is not necessary that any act or illegal omission shall take place in pursuance thereof.”
If any two or more persons agree to wage war against the government of India, then they would be punished under this section with imprisonment for life or up to ten years imprisonment and with fine.
The term ‘overawe’ has been defined in the case of Aravindan v. State of Kerala (1983) Cr LJ 1259(Ker), as to create such situation that would compel the government to choose between yielding force or exposing public and members of the government to imminent danger. The other type of conspiracy introduced under this section is that if any persons conspire to overawe the Government of India using criminal force or to show them criminal force, then in such case the group shall also be held liable under this section.
Similar to the offence of general conspiracy, the completion of the act is not necessary, the act of conspiring is punishable in such offences.
Preparation to wage war (s. 122)
“Collecting arms, etc., with intention of waging war against the Government of India— Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the 2 [Government of India], shall be punished with [imprisonment for life] or imprisonment of either description for a term not exceeding ten years, 2 [and shall also be liable to fine].”
Imagine a person who has 1400kg of RDX and 150 AK-47 at his penthouse in Delhi near parliament. What do you think he might have such explosives for? Near parliament? In Delhi? Without license? One can clearly accuse him of preparation of waging to war. Keeping arms and ammunition or by any other means preparing war against the Government of India is a crime punishable by imprisonment for life or for minimum two years maximum 10 years and with fine.
Concealment of design to wage war (s. 123)
“Concealing with intent to facilitate design to wage war —Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the [Government of India], intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Consider an example, where a man lives in a wall-attached flat with 3 other friends who live together. The three friends plan to wage war against the government. The man from the thin wall could hear everything. There can be two conditions:
He was capable of telling the authorities about it and knew the consequences of not telling the authorities. He committed the offence of concealment.
He was not capable of telling the authorities however knew about the consequences of not telling the authorities. He committed no offence.
It is important to understand that the act of concealment can be done by an illegal act or omission.
The next four parts of the offences against the state are yet to be published. Be patient and stay safe.
By
LawVastutah
References
- KD Gaur: Criminal Law-Cases and Materials, 9th ed.
- PSA Pillai: Criminal Law,12th Edition.
- Ratanlal & Dhirajlal: Indian Penal Code (PB), 36th ed.
- Indian Penal Code 1860.
Comments
Post a Comment