ABETTING THE WAGING OF WAR AGAINST GOVERNMENT OF INDIA

By Shalini Menon

The Indian Penal Code is the official criminal code of India, came into existence during the colonial period and in fact, was a contribution of the Colonial rulers, it is followed even today without many changes. Chapter VI  covers Sec 121- 130 deals with offences against the state. Waging, or attempting to wage war, or abetting waging of war, against the government of India. According to Sec 121: “Whoever, wages war against the Government of India, or attempts to wage such war, or abets the waging of war, shall be punished with death or imprisonment for life and shall also be liable for fine.”[1]

Sec 121-130 of the Indian Penal Code contain provisions relating to offence against the state which can be broadly classified under these sub-headings:

  1. Waging war or abetting war against the state, that is Government of India (Section 121,121-A,122 and 123)
  2. Assaulting President, Governor, etc. with intent to compel or restrain the exercise of any lawful power (Section 124)
  3. Sedition (Section 124-A)
  4. Waging war against any Asiatic Power in alliance with the Gov. of India (Section 125) or committing depredation on territories of Power  at peace with Govt. of India (Section  126); and
  5. Aiding escape of, rescuing or harbouring State prisoners or prisoners of war from lawful custody (Section 130)

There are two ingredients to Section 121

  1. The accused attempting to wage, waged or abetting the waging of war
  2. Such that, the war was against the Gov. of India

‘Waging war’ means, any person taking part in an organized armed attack on the constitutional authorities- government and governmental institutions, with the intent of subversion of the government and establish another in its place will be guilty of the offence of waging war. The offence may be committed by a citizen or foreigner. Abetting of war is altogether made a special offence. Whether the intention has been successful does not count.

In  Mohd. Arif v State (NCT Delhi), 2011, the trial court awarded death sentence to the appellant Mohd. Arif alias Ashraff, for the offence under Section 121 of IPC. Similarly, he was sentenced to death for the offence under Section 120-B, read with Section 302 IPC for committing the murder of  Naik Asok Kumar, Uma Shankar and, Abdulla Thakur by launching an attack inside the army establishment of Red Fort on December 22, 2000. The High Court concurred with the findings of the trial Court and confirmed the death sentence as there were no mitigating circumstances justifying lesser punishment.

Section 121-A of the IPC, Whoever within or withoutconspires 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 anyState Government, shall be punished withimprisonment for life, or with imprisonment of either description which may extend to ten years,and shall also be liable to fine.[2]

The expression, “or conspires to overawe, by means of criminal force or the show of criminal force” was interpreted by the Kerala High Court, in the case, Arbind v State, 1993, the Court observed that the word “overawe” means something more than the mere creation of apprehension, alarm or fear. It connotes the creation of a situation in which the government feels compelled to choose between yielding to force and exposing itself for the members of the public to very serious danger.

Section 122, 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 theGovern­ment of India, shall be punished withimprisonment for life or imprisonment of either description for a term not exceeding ten years,and shall also be liable to fine.[3] The following are the essentials of this section:

 1. The existence of a design to wage war against the Government of India

 2. Such a design must be within the knowledge of the accused;

 3. The accused must have concealed that design; and

 4. The concealment must have been intended to facilitate the design to wage war.

This section makes the concealment of design to wage war against the Government of India by any act or omission, such that the concealment may facilitate the waging of such war, an offence.

Section 124A deals with sedition laws. This was omitted in the first draft of the Indian Penal Code but was later added through amendment. Since then it has been a subject of public debate.

“Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India, shall be punished withim­prisonment for life, to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine.”[4]

Unless the comment excites or attempts to excite enmity, hatred or disaffection it will not constitute an offence under this section. It is a non-bailable offence. The trail of Jogendra Chandra Bose was one among the initial sedition cases, where an article criticizing the Age of Consent Bill for posing a threat to the religion and for its coercive relationship with Indians was published in a newspaper, Bangobasi.[5] The most famous three sedition trails of Bal Gangadhar Tilak, the strongest advocate of Swaraj (Self-rule), who wrote a series of articles in his Marathi newspaper Kesari. His articles preached nationalist values, encouraged boycotting British goods, and demanded Swaraj. “Swarajya is my birthright and I shall have it” was his famous quote. He was tried three times and was sentenced to imprisonment for inciting disaffection towards the British government.

ELGAR PARISHAD CASE

The Elgar Parishad case has been over the news for the past few years. Over 200 years ago, in Koregaon, a town in Maharashtra, a Dalit community called “Mahar” existed. The Peshwas, the Brahman community, ill-treated them for ages. The Mahars along with the British defeated the Peshwas and this battle is remembered for the victory and valour of Mahars. The British company built a memorial in Koregaon, inscribing the names of the 49 soldiers in their remembrance. This win became a symbol of Dalit pride. Since then 1 January became a very important and celebrated day among the Dalit community. Dalits from all over the country visit Koregaon on this particular day to pay tribute to the soldiers who lost their life.

On 31 December, 2017, the Marathas tried to stop the Dalits from commemorating 200 years of the Battle of Koregaon, Elgar Parishad, which leads to a violent outbreak across the state of Maharashtra. Many of the people who attended the event were arrested. The event had more than 35,000 attendees; they gave speeches, cultural performances, and public demonstrations. On 1 January, 2018, it became “Elgar Parishad Case” after the violence broke out. The city Police registered FIR against the Elgar Parishad for inflammatory speeches and Maoist link another FIR was filed with the Pune Rural Police. Charges were filed for conspiracy to assassinate Prime Minister Narendra Modi and to overthrow his government. Later the case was transferred to the National Intelligence Agency (NIA).

OTHER LAWS THAT SERVES THE PURPOSE OF NATIONAL SECURITY

NATIONAL SECURITY ACT, 1980

The National Security Act, 1980, is a preventive detention law. Article 22 (3) (b) of the Indian Constitution allows detainment or restriction of a person who is a potential threat to the security of the nation and also states that such a detention shall not be for more than three months subject to certain exceptions. NSA is an empowering law for the Central and State government. There are several criticisms, the National Crime Record Bureau (NCRB), which is a body that collects and analyse crime data’s in the country do not cover the cases registered under NSA.

UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967

The UAPA 1967, penalize unlawful terrorist activities that undermine the sovereignty and integrity of the nation. It enables the Central Government to designate a organizations as terrorist organization and also label an individual as a terrorist which was brought in through the 2019 amendment act carried out by the Parliament. Prior to the, amendment only organizations could be designated this way. Prior to the UAPA, Terrorist and Disruptive Activities (Prevention) Act, 1987 (‘TADA’) and Prevention of Terrorism Act, 2002 (‘POTA’) were the ones in place. Over the years, its constitutional validity was challenged. TADA was challenged on the ground that the conviction rates of the arrests were less than one percent, which meant a majority of wrongful arrests and POTA had a very discriminatory application. Hindu nationalist groups were excluded from being prosecuted if suspected for terror acts against minority communities.

ARMED FORCES (SPECIAL POWERS) ACT, 1958

Armed Forces (Special Powers) Act, AFSPA was enacted in 1958, to address the separatist movement in Nagaland. It empowered the military force to maintain public order in “disturbed areas”. It is operational in the entire state of Assam, Manipur, Nagaland, Jammu & Kashmir and some areas of Arunachal Pradesh.[6] But this gives the army officers legal immunity for their actions and no particular suit can be initiated against them and it is being misused to a large extent.

CONCLUSION

National security is a subject of utmost importance but not at the cost of innocent lives. Jammu & Kashmir tops the list of human rights violations committed under the AFSP. Assam comes second; Manipur comes third followed by Meghalaya and Arunachal Pradesh. There have been alleged fake encounters and some reported cases of rape. A strict code of conduct must be enforced so as to keep a check on the army officers and their acts. During January 2019 a case of cow slaughter was reported in Uttar Pradesh and three people were arrested under the National Security Act, 1980. In the same district, a policeman was killed during his duty. Very ironically the cow slaughter gained much more attention as a National Security issue over the killing of a policeman. The arrests associated with the CAA protests in Delhi are all examples of such misuse. All the preventive detention laws in India are a serious invasion into the personal liberty of an individual which is a granted fundamental right under the constitution and hence it must be applied very cautiously.


[1] https://www.indiacode.nic.in/bitstream/123456789/4219/1/THE-INDIAN-PENAL-CODE-1860.pdf

[2] https://indiankanoon.org/doc/1949191/

[3] https://indiankanoon.org/doc/1661760/#:~:text=%E2%80%94Whoever%20collects%20men%2C%20arms%20or,ten%20years%2C%2092%20%5Band%20shall

[4] https://indiankanoon.org/doc/1641007/

[5] https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-124a-of-ipc-divd-1607533-2019-10-09

[6] https://www.livemint.com/Politics/CcFJoIMR39wtQwiIoIfi3O/Jammu–Kashmir-tops-list-on-rights-abuses-under-AFSPA-Assa.html

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