Indian penal code 1860, provides offences by the virtue of wrongful act and also ascribes the punishment of the same offence. In chapter V1 of Indian penal code offences against the state defined. One of the offences against the State is, waging war or attempting to wage war against the government. Here war is not a conventional war between the two countries, organizing and joining resurrection against the government of Indian can be termed as waging war against the government of India. Lucabate section 121 in detail.
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”.
It is a cognizable, non-bailable offence tried by session Court.
For example, Farhan by joining a revolt against the Government of India has committed the offence mentioned above.
Historical background
Earlier the word used in section 121 was Queen. After the adoption of the constitution of India, it was replaced by the word “Government of India” through the adoption of laws order in 1950.
In a republic country, the original power is vested in the hands of the people of the court and sovereigns merely the representatives of the people, who are chosen to act on behalf of them. From this one can conclude that the word government of India embodied in section 121 can be held as the meaning of state or used interchangeably the people of the country as the repository of the sovereignty of India which is manifested and expressed through the elected representatives or Government[1].
Ingredients
Following are the ingredients of section 121-
[1] The accused waged or attempt to wage war or abetted the waging of war;
[2] Such a war was against the government of India.
In the case of Maganlal Radhakrishnan v. Emperor[2], following characteristics of the offence laid down by the Supreme court-
1. No specific number of person is required to commit this offence
2. The number of people concerned and the manner in which they are equipped is immaterial.
3. True criteria are based on “Quo Animo”, did the gathering assemble
4.The object of the gathering must be attained by force and violence and object of a general public nature thereby striking directly against the king’s authority.
5. There is no distinction between principal and accessory and everyone who takes part in the unlawful act incurs the same guilt.
Meaning of Waging war against the Government
The concept of waging war can not only be understood by the concept of international law sense of inter-country war involving military operations neither it means to punish the prisoners of war of enemy countries. Leaving the legislative history, interpretation by various High Courts of expression “ waging war against the government” during pre-independence can be contemplated that war here in section 121 doesn’t only means conventional warfare between two NAtions, mere organizing or joining the insurrection against the government of India is also a form of war.
The expression ‘waging war’ means and can only mean waging war in the manner usual in war. In order to support a conviction under this section, it is not enough to show the person charged has contrived to obtain possession of an armoury and have, when called upon to surrender it, used the rifles and ammunitions so obtained against the government troops.
It was held in the case of Nazir khan V. state of Delhi[3], that seizure of armoury was a part of a planned operation and that their intention in resisting the troops of the government was to overwhelm to defeat these troops and go on and crush any further opposition which they might meet until the leader of the operation got the full possession of the machinery of government of yielded the demand of their leaders.
In paragraph 272 of the Judgement held in case of State (N.C.T of Delhi) v. Navjot Sandhu @ Afsan Guru[4], Justice p. Venkatrama reddi., Speaking for the Court, addressing law commission report said that “ We conceive the term waging war against the government” naturally to import the 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 definition of the term so unambiguous would be superfluous.”
The new concept of waging war and caution against using old
The concept embodied in section 121 can not be misled with the meaning of conventional war between the two countries, the normative phenomena of war as understood in an international sense does not fit in the ambit of section 121.
The court must be cautious in adopting an approach which has the effect of bringing within the fold of Section 121 all acts of the lawless and violent act resulting in destruction in public properties. And all act of violent resistance to the armed personal to achieve certain political objectives. The moment it is found that the object sought to be achieved is of general public nature or has a political shade, the offensive violent acts targeted against the armed forces and public officials should not be termed as an act of waging war.
The expression waging war should not be stretched too far to hold all the acts of disturbing public peace and tranquillity against the government, a balanced and realistic approach called for consideration irrespective of how it was viewed in the past of expression waging war.
Government of India
The expression used under section 121’ government of India’ ‘ is surely embodied with broader concept nit with narrower or restricted way. In our consideration section, 121 government of India used to imply the Indian states, the juristic embodiments of the sovereignty of the country that derives its legitimacy from the people of India, the term government of India signify the notion of sovereignty of a territorial unit is deemed to vest in the people of the territory and exercised by the elected government[5].
Abets the waging of such war
If a person abets the other person to do the above-mentioned offence then such abetment is made a special offence, it is not essential that as a result of the abetment the war should, in fact, be waged. The main purpose of the instigation should be waging war.
It should not merely be a remote or incidental character but the thing principally aimed at by the instigation hence there must be active suggestions and stimulations to use of violence. Although the general law relating to abetment made a distinction between the successful attempt of abetment and failed attempt, this section makes no such distinctions. There is also no distinction between the principal and the accessory, and all who take a party shall be deemed to be guilty in the lawful act incurred the same liability.
So long as a man only tries to inflame feelings to exercise the state of mind, he is not guilty of anything more than sedition. One is guilty of instigating and thereby abetting the waging of war only when he definitely and clearly incites to action.
Cases
Parliament Attack Case
A single most important factor which pimples to think that this is the case of waging war or attempting to wage war against the government of India, as the target of attaching chosen by slain terrorists and conspirators and the immediate object sought to be achieved thereby. The battlefront chosen for this was “parliament”, a symbol of the sovereignty of the Indian republic.
Huge and powerful explosives, sophisticated arms and ammunition carried by the slain terrorist, who indulge in ‘fidayeen’ operations with a definite purpose in view, is a clear indicator of grave danger in store for the inmates of the house. The planned act, if executed. Would have spelt disaster for the whole nation.
Even if the conspired purpose and objective fall short of installing some other authority or entity in the place of an established government, it does not detract from the offence of wagering war.
Red fort attack Case
The evidence as to the transmission of thoughts sharing the lawful design would be sufficient for establishing the conspiracy. Again there must have been some activity in pursuance of the agreement. The appellant held guilty under section 121 & 121A and the conviction stood correctly[6].
Section 121A
Whoever within or without India conspires to commit any of the offence punishable by section 121, or conspire 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 10 years, and shall also be liable to fine.
To constitute a conspiracy under this section, not necessary any act or illegal omission shall take place in pursuance of thereof.
The reason behind this offence, to make conspiracy punishable because, the person who by conspiring to bring out such results, set the whole matter in motion seem more criminal and far more deserving of punishment than those who were their mere tool, and only took part in such an assembly.
The world conspires to overawe by means of criminal force or the show of criminal force, the central government, 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 central government or any state government by way of organising serious riots and tumultuous assembly[7].
Conclusion
Every country has possessed the problem of unnecessary sectarian strife and political hue agendas, which ultimately affect the sovereignty of particular countries, and all this result can be accelerated by the person who wanted to wage war against the government or attempt to wage war against the government.
In respect of this, the particular government has the right to protect itself from these kinds of activities, this gives a way of offences related to the state. One of the offences underlying was section 121 & 121A. Which talks about waging war or attempting to wage war against the government of India.
Attack like parliament act, Mumbai terror attack briefly placed this section important to protect the sovereignty of India, hence anyone who tries or commits to wage war against the government of India shall be punished as per the punishment mentioned under this section.
References
1. Ratanlal & Dhirajlal, Indian Penal Code, LexisNexis Publication, Ed 35th, P. no. 263.
2. AIR 1946 Nag. 126
3. (2003), 8 SCC 461,
4. AIR 2005 SC 3820 (2012) 9 SCC 1.
5. Mohammed Ajmal Mohammad amir Kasab V. State of Maharashtra,
6. Mohd. Arif V. State of N.C.T of Delhi, JT 2011 (9) SC 563
7. Ramanand, (1950), 30 Pat. 152
Akash Goswami | Aligarh Muslim University