Offences against the State | Law Optional Notes for UPSC PDF Download

Introduction

The Indian Penal Code of 1860 addresses crimes committed against the State, encompassing Sections 121 to 130 within Chapter VI. These laws are designed to uphold the overall security of the State. To protect the State's existence, stringent penalties, including life imprisonment or capital punishment, are prescribed for those who commit crimes against the State. These offenses not only jeopardize the State but also disrupt public peace, order, and national unity.

Waging War

Waging war is defined as an endeavor to achieve a public objective through the use of violence. This form of conflict arises when a group of individuals gathers and mobilizes against the State with the aim of forcefully pursuing a public goal. To establish an offense against the State, the focus is on the underlying purpose and intent, rather than the act of murder or the use of force.

Difference between Waging war and Rioting

Waging War against the Government of India

Section 121 to Section 123 of the Indian Penal Code pertain to the act of waging war against the Government of India. In this context, the term 'Government of India' carries a broad connotation, signifying the Indian State that derives its authority from the consent of the people. In other words, it signifies that although the State's authority is derived from International Laws, it is ultimately vested by the people and exercised through their representative government.

Under Section 121, the following elements must be proven to establish the offense of waging war against the Government of India:

• The accused must have engaged in an act of war.
• The accused must have attempted to wage war.
• The accused must have aided and abetted the waging of war.
• Such an act of war must be directed against the State.

The penalties for this offense include either a life sentence or the death penalty, with the possibility of fines in certain situations.

Whoever

• The term 'whoever' is used in a broad sense, encompassing not only individuals who owe allegiance to the established government. Even the Supreme Court of India faces challenges in determining whether foreign nationals entering India with the intention of disrupting the government's operations and destabilizing society should be held accountable.
• For example, in the case of the Mumbai Terror Attack, the initial and primary offense committed by the appellant and other conspirators was the act of waging war against the Government of India. The attack was carried out by foreign nationals and targeted Indians and India itself. The objective of this attack was to exacerbate communal tensions, impact the country's financial stability, and most notably, pressure India to cede control of Kashmir. Therefore, the appellant was rightfully found guilty under Sections 121, 121A, and 122 of the Indian Penal Code for waging war against the Government of India.

Waging War

• The term 'waging war' should be interpreted broadly and refers to engaging in war in the usual manner. It does not encompass overt actions like recruiting troops, gathering weapons, and ammunition. Additionally, it does not pertain to international wars involving military actions between two or more countries.
• Under Section 121 of the Indian Penal Code, it is clarified that 'war' doesn't refer to conventional warfare between nations, but rather, it pertains to participating in or organizing an insurrection against the Government of India. Waging war is a means of achieving any public purpose through violent means.

Intention

In cases of waging war, the primary focus is on the intention and purpose behind such hostilities against the government, making murder and the use of force irrelevant.

Sedition and Abetting War

• Both sedition and abetting war are serious offenses that are non-negotiable, non-compoundable, and non-bailable. These offenses can be tried in a Court of Session.
• Section 124A of the IPC deals with sedition, which involves the intention to incite hatred, contempt, or disaffection (including disloyalty and enmity) against the Government of India.
• Abetting war is a distinct offense, where the primary aim of such instigation must be to wage war.
• In a specific case, like Najot Sandhu's, the appellant was part of a criminal conspiracy and was found to have abetted the offense. He actively participated in a series of actions taken as part of the conspiracy. Consequently, the High Court's judgment was upheld, and the appellant was convicted under Section 121 of the IPC.
• In cases falling under Section 121 of the IPC, if the charge does not specify the seditious speeches, it does not adversely affect the proceedings. In conclusion, there is a distinction between sedition and abetting war.

Conspiracy to Wage War

Section 121A was introduced to the Indian Penal Code in 1870 and establishes that a conspiracy does not require explicit acts or omissions to take place. This section addresses two main types of conspiracies:

• Conspiring to commit an offense punishable under Section 121 of the Code, whether within India or outside it.
• Conspiring to intimidate the government through the use of criminal force or the mere display of criminal force.

The penalties under this Section include imprisonment for ten years or life imprisonment, in addition to fines. Both the Central Government and the State Government have the authority to impose such penalties.

Preparation to Wage War

Section 122 of the IPC pertains to preparations for war, distinguishing between an attempt and preparation for committing the offense. The key elements of this Section include:

• The gathering of individuals, weapons, and ammunition.
• An intention to wage war or prepare for war through such gathering.
• Active participation by the accused in this collection.
• The war being directed against the Government of India.

The punishment under this Section is either life imprisonment or imprisonment for ten years, along with a fine. For instance, if printed materials and other items are found in the accused's room, they are not considered objectionable or incriminating, and thus, the accused cannot be convicted under this Section.

Concealment of Design to Wage War

Section 123 of the IPC addresses the concealment of a design to wage war. The key elements of this Section include:

• The existence of a prepared design to wage war against the Government of India.
• The intention to facilitate the war against the Government of India through the act of concealment.
• Knowledge on the part of the person about the concealment of the design.

The penalty under this Section is imprisonment for up to ten years, along with a fine. For example, in the case of the Parliament attack, the accused possessed information about a conspiracy and a plan by terrorists, and his failure to report it made him liable under Section 123 of the IPC.

Waging War against Power

War Against Asiatic Power

Section 125 pertains to 'Waging war against any Asiatic Power in alliance with the Government of India.' This section criminalizes the act of waging war against an Asiatic power. The accused must have waged war against the State, attempted to wage war, or abetted the waging of war.
Key elements of this Section include:

• The existence of an Asiatic State with international connections.
• This State must be distinct from India.
• The State should either be in alliance with or at peace with the Government of India.

The penalties under this Section may include life imprisonment, imprisonment for seven years, along with a fine in certain cases, or just a fine.

Depredation in Friendly Countries

Section 126 deals with 'Depredation on territories of a Power at peace with the Government of India.' Depredation refers to acts of aggression or attack.
Key elements of this Section include:

• The accused must have committed or prepared to commit depredation.
• These actions must take place within the territories of a power that is in alliance with or at peace with the Government of India.

Punishment under this Section includes imprisonment for seven years along with a fine, and any property used for or acquired through the commission of this offense can also be forfeited.

Note: Section 126 is broader in scope than Section 125, as the latter specifically deals with waging war against Asiatic Powers in alliance with the Government of India, whereas the former applies to any Power, which may or may not be Asiatic.

Receiving Property Taken by War or Depredation

Section 127 deals with the 'Receiving property taken by war or depredation as mentioned in Sections 125 and 126.'
Key elements of this Section include:

• The accused must have received some form of property.
• This property must have been obtained through waging war with a Power at peace with the Government of India or by committing depredation on its territories.

The penalties for this offense include imprisonment for seven years along with a fine, and the property must also be forfeited.

Assault on High Officials 

Section 124 of the IPC addresses assaults on high-ranking officials, such as the President or Governors, with the intent to influence or compel them to either exercise or refrain from exercising their lawful powers. This section involves the following elements:

• The accused must have assaulted the President or a Governor.
• The accused must have unlawfully restrained the President or Governor.
• The accused attempted to assault or wrongfully restrain the President or Governor.
• The accused attempted to incite or force the President or Governor, using force or the threat of force, with the intent to compel them to exercise or refrain from exercising their powers.

Escape of a State Prisoner 

Sections 128, 129, and 130 of the IPC deal with different aspects of the escape of a state prisoner. A "state prisoner" is an individual whose confinement is deemed necessary to safeguard India's security against internal disturbances and foreign threats.

Section 128 focuses on 'public servants voluntarily allowing prisoners of State or war to escape' and includes the following elements:

• The accused must be a public servant.
• The confined person must be a prisoner of State or war.
• The prisoner must be in the custody of the accused person.
• The accused public servant must have allowed the prisoner to escape voluntarily.

Note: Section 128 does not apply in cases where the prisoner escapes during transit. The punishment for this offense is either life imprisonment or a ten-year prison term, along with a fine.

Section 129 addresses 'public servants negligently causing the escape of a prisoner of State or war.' The elements of this section are:

• The accused must be a public servant, specifically at the time of committing the offense.
• The prisoner must be in the custody of the accused.
• The prisoner must have escaped or been rescued.
• The escape or rescue must be due to the negligence of the accused. The punishment for this offense is simple imprisonment for up to three years, along with a fine.

Section 130 concerns 'any person who aids, assists, rescues, or harbors a prisoner of State or war in escaping.' This section is more extensive than Sections 128 and 129, and its elements include:

• The accused knowingly aids or attempts to aid, rescue, harbor, or conceal the prisoner.
• The prisoner must be in lawful custody.
• The act or omission must be intentional or knowing. The punishment for this offense is life imprisonment or imprisonment for up to ten years, in addition to a fine.

Sedition 

Section 124A of the Indian Penal Code addresses the offense of sedition. Under this Section, any individual who, by means of:

• Words, whether written or spoken,
• Signs,
• Visible representations, or
• Any other method,

Engages in or attempts to incite hatred or excite disaffection, including feelings of enmity and disloyalty, towards the Government of India, is subject to punishment, which can include:

• Life imprisonment along with a fine in certain cases,
• Imprisonment for up to three years along with a fine in certain cases, or
• A fine.

Essential Elements of Section 124A 

Sedition can take various forms, including spoken or written words, signs, or visible representations. Seditious actions can involve music, publications, performances (such as in films and puppet shows), sculptures, photographs, cartoons, paintings, and any other means of expression.

• It is immaterial whether the seditious content is created or used by the actual authors. In such cases, the editor, publisher, or printer is equally liable as the author. If the accused claims not to have authorized the content, the burden of proof lies with the accused. If the accused is unaware of the contents of the published article or paper, they may not be guilty under this Section, as intent is absent.
• Sedition is not limited to written or spoken words but can also encompass signs and visual representations. For example, it can be evidenced by a woodcut or engraving.

Bringing or Attempting to Bring into Hatred or Contempt 

The phrase 'brings or attempts to bring into hatred or contempt' is intended to strike a balance between allowing freedom of speech and limiting actions that interfere with it. Writers in the public press are permitted to express their views and even criticize, as long as their motive is not improper or dishonest. An article that is calmly, objectively, and dispassionately written and merely prompts thought, without improper, corrupt, or dishonest motives, is not considered seditious.

Exciting Disaffection 

• The term 'disaffection' encompasses feelings of disloyalty and enmity. To qualify as sedition, an act of disaffection must be incited among the public. In other words, the act must stir feelings of disaffection among the people of the State.
• According to this Section, disaffection can be incited through various means, including poems, allegories, historical or philosophical discussions, dramas, and more. Publication is a key element in establishing sedition, and it can take various forms, including online posts.

Government Established by Law

The term "Government established by law" pertains to the functioning political system, which includes the governing authority and its representatives. It encompasses individuals who are legally authorized to administer the Executive Government in any part of India, encompassing both State and Central Governments.

For an offense to fall under this section, it must be directed towards the Government of India. However, certain situations do not qualify as sedition:

• Advocating a strike against business owners or mill proprietors rather than the Government.
• Discouraging recruitment.
• Persuading people not to pay land revenue.

In essence, sedition refers to attacks on the established Government or the Sovereign. Criticizing the justice administration does not fall within the scope of Section 124A.

Expressing Disapproval – Explanations 2 and 3

• The term "expressing disapproval" simply means expressing one's dissent or disapproval. Liking a person doesn't necessarily imply approval of their actions or views. Explanations 2 and 3 offer a wide range of options for people to voice their disapproval of government measures, seeking their alteration through lawful means or other government actions. All of this can be done without inciting hatred or disaffection toward the Government.
• Explanations 2 and 3 have limited and well-defined scope. Their purpose is to protect bona fide criticism of public measures and institutions to facilitate improvement. In a free country, it is the right of the free press to drive policy changes by critiquing such measures. Today, the media enjoys much greater freedom compared to earlier years or the pre-independence era.
• For example, an article in a newspaper is not seditious if it criticizes a proposed bill or a policy of the government, but an attack on the government itself would constitute sedition.

Constitutional Validity of Section 124A

• The provisions of this Section are not deemed unconstitutional and do not violate the fundamental right to freedom of speech and expression under Article 19(1)(a) of the Indian Constitution. The case of Ram Nandan v. State of U.P. initially challenged the constitutional validity of sedition, but it was overruled in Kedar Nath Das v. State of Bihar. The Supreme Court held that Section 124A would only restrict acts with an intention to disrupt law and order or incite violence.

Reform Proposals

Given that India is the world's largest democracy, the right to freedom of speech and expression is an essential aspect of democracy. Mere expression or contemplation of government policy should not constitute sedition. Several reform proposals have been made over the years:

• In 1968, the 39th Law Commission Report rejected the idea of repealing this Section.
• In 1971, the 42nd Law Commission Report suggested expanding the Section's scope to include the Constitution, the legislature, the judiciary, and the Government established by law.
• In August 2018, the Law Commission of India published a consultation paper recommending the repeal of Section 124A of the Indian Penal Code, which deals with sedition.
• Recent proposals by the Law Commission of India suggest using Section 124A to criminalize only those acts intended to disrupt public order or overthrow the government through violence and other illegal means. Although the Section is unlikely to be repealed, it should not be misused.

Conclusion

Offenses against the State play a vital role in maintaining public order. Citizens have the right to criticize government policies, but they must not misuse their freedom to harm others or the Government. Waging war against India and against the established government is a punishable offense, and the law also protects high officials such as the President and State Governors in cases of assault. Importantly, sedition is considered one of the most serious cognizable offenses against the State. In conclusion, the State may limit the freedom of its citizens in the interest of its overall welfare.