Indian Penal Code under various sections such as sections 121, 121A, 122, 123,124A 126, define offences against state and prescribe punishment for the same.
What is State?
The definition of the state is not static many scholars from ancient times to now modern times have a different view on what State is. Aristotle defines State as a community of persons and like every community, it has a purpose and, Prof. Woodrow Wilson state is a people organized for law within a territory.
Montevideo Convention on the rights and duties of the State, 1933, established the definition of State under International Law, it says that all states are equal sovereign units consisting of population, defined territorial boundaries, a government, and an ability to enter into agreements with other states.
The state has all right to self-preservation of itself and their subjects from external aggression and any kind of internal differences which harm the progress and stability of the State.
Indian Penal Code under section 121 says ‘whoever wages or attempt to wage war, or abets the waging of such war will be punished with death, or imprisonment of life, and shall also be liable for fine’. Any individual waging a war or abetting in the act to do the same on constitutional authorities of India is liable under this section, abetment does not necessarily mean result of the abetment the war should be waged.
In Maganlal Radhakrishnan v, Emperor1 these characteristics of offence were pointed out;
No specific number of persons is necessary to constitute this offence
The number of persons concerned and how they are equipped is immaterial
The true criterion is “Qui Animo” did the gathering assemble?
The object of the gathering must be to attain by force and violence an object of a general public nature thereby striking directly against the king’s authority.
There is no distinction between principal and accessory and everyone who takes part in the unlawful act incurs the same guilt.
The court held that the object of the gathering must be to attain, by force and violence, an object of a general public nature thereby striking directly against the Government’s authority.
In state (N.C.T. of Delhi) v. Navjot Sandhu2, the terrorists entered the parliament with arms and explosives when parliamentary business was being conducted therein, the supreme court held that the undoubted objective and determination of deceased terrorists were to violate the sovereignty of India and its government and it amounted to waging war or attempting to wage war against India.
Section 121 A says whoever within or without India conspires to commit any of the offences punishable by section 121, or conspires to overawe, through 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. The offences which are under section 121 is cognizable, non-bailable, non-compoundable, and can be tried in session court. In the case of Mohd. Jamiluddin Nasir v. State of West Bengal3, in order to take revenge of the jihadi group killed in police encounter the appellants, hatched a conspiracy and attacked the American centre, Calcutta which led to the killing of half of dozen police personnel and thirteen police and other persons. The supreme court held the appellants were liable under Sections 121, 121-A, 122, 120-B, and 302 of Indian Penal Code and were sentenced to death but later on the Supreme court modified them death sentence to life imprisonment.
Section 122 of Indian Penal Code says whoever collects men, arms or ammunition or otherwise prepares to wage war with intention of either waging or being prepared to wage war with the intention of either waging or being prepared to wage war against the government of India, shall be punished with imprisonment of life or imprisonment of either description for a term not exceeding ten years and shall also be liable to fine. This section clearly defines that the collection of arms and ammunition with the intention to wage a war against the constitutional authority i.e. Government of India is liable to be punished under the prescribed punishment which is mentioned in Section 122 of Indian Penal Code.
But the charges under the sections 121, 121-A, 122 should be awarded after examining the nature and magnitude of offence, how it is carried out and the effect it caused and loss of life and property, etc.
Section 123 of Indian Penal Code says whoever, by any act, or any illegal omission, conceals the existence of a design to wage war against the Government of India, intending by such concealment will facilitate, the waging 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. in the case of State (N.C.T. Delhi) v. Navjot Sandhu, the court held that accused knew of conspiracy and plans of terrorists to attack parliament, his illegal omission of this fact to inform police or magistrate of the design of the conspirator makes him liable under section 123 of Indian Penal Code.
Section 124-A which deals with the sedition a concept which is highly debated and discussed in India it says 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 with imprisonment for life, to which fine may be added, or with fine, which may extend to three years, to which fine may be added, or with fine.
This section was added to the code in 1870 and at that time it was different and was not the same as it is in the present form and later in 1891 this section was amended and explanations were added to it. In Queen v. Jogendra Chandra Bose4 the term ‘disaffection’ was explained by C.J. Petheram, he explained, disaffection as a felling contrary to affection; in other word dislike or hatred. If a person incites the people to not obey the lawful authority of the government or to subvert or resist the authority and if he does so with such intentions, he is liable under this section. In Queen v. Balgangadhar Tilak5 the court held that a man must not make or try to make others feel enmity of any kind towards the government.
After Independence and coming into force of the constitution in various cases the constitutional validity of this section was questioned, in Kedar Nath Singh v. State of Bihar6 the validity of this section was questioned on the ground that provision of this section violates freedom of speech and expression. The plea was negated by the court and section was held constitutional, the section clearly explains that criticism of the government action, however strongly worded, within reasonable limits and consistent with the fundamental right of freedom of speech of expression is not affected, it is only when the words have a pernicious tendency or intention to create discord in public and disturb the public order, or disturbances in law and order that the provisions of the sections attracted.
Section 126 of the Indian Penal Code says whoever commits depredation, or makes preparation to commit depredation, on the territories of any power in alliance or at peace with the Government of India, shall be punished with imprisonment of either description of the term which may extend to seven years, and shall also be liable to fine and to forfeiture of any property used or intended to be used in committing such depredation, or acquired any such depredation. Here depredation in this section means depredation or making preparations for depredations.
All these offences are prescribed in Indian Penal Code and are punishable under death or life imprisonment and fine, some of the sections especially 124-A which deals with the issue of sedition in India has been used by the government to muzzle the freedom and liberty of the Individual, India being the largest democracy in the world it must protect the liberty of the individual, so the review of some of these laws is necessary and should be in congruence with the present contemporaneous time.
This article is authored by Anshu Rathore
1. Maganlal, A.I.R. 1946 Nag. 126.
2. 2005 Cri. L.j. 3950 (S.C.)
3. A.I.R. 2014 S.C. 2587
4. I.L.R. 19 Cal. 35
5. I.L.R. 22 Bom. 112
6. A.I.R. 1962 S.C. 955
7. Prof. S.N. Mishra, INDIAN PENAL CODE, (Central Law Publication, 21st edition, 2018)