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CENTRAL UNIVERSITY OF SOUTH

BIHAR

GAYA 824236

Waging war against government of India & Sedition

School of Law and Governance

Submitted to:- Name- Jata Shankar

Dr. P K Mishra CUSB1713125017

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ACKNOWLEDGEMNT

Every project big or small is successful largely due to the effort of a number of wonderful souls
who have always given their valuable advice and lent their helping hands.

I owe my sense of gratitude to almighty god for showing his blessing throughout the completion
of this project. I am highly indebted to “Dr. P K Mishra” for his guidance and constant
supervision as well as for providing necessary information regarding the project during class
lectures. However, it would not have been possible without the kind support and help of many
individuals and organizations. I would also like to extend my gratitude to my colleague,
librarian, and non- teaching staff who have willingly helped me out with their abilities. This
research would not have been possible without all mentioned above. The subject matter of the
project work is very revolutionary and it helped me a lot to know and learn about sections and
provisions mentioned under The Indian Penal Code 1860.

Last but not the least I place a deep sense of gratitude to my family members who has been
constant source of inspiration during the presentation of this project.

Jata Shankar

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CHAPTERISATION

CHAPTER I :- Introduction, Research Methodology, Scope & objective

Scope-----------------------------------------------------------------------------------------------------------4

Research Methodology & Objective -------------------------------------------------------------------- 5

Introduction------------------------------------------------------------------------------------------------ 6-
7

CHAPTER II: - Constitutional Provisions in relation with Waging war against


Government of India.

 Section 121------------------------------------------------------------------------------------
 Section 122------------------------------------------------------------------------------------
 Section 123--------------------------------------------------------------------------------------

CHAPTER III: - Constitutional Provisions of Sedition

 Section 124A------------------------------------------------------------------

CHAPTER IV: - Historical Background and Case Laws

 Historical Background--------------------------------------------------------
 Case Laws-----------------------------------------------------------------------

CHAPTER V: - Inference

 Conclusion----------------------------------------------------------------------

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 References----------------------------------------------------------------------

CHAPTER I :- Introduction, Research Methodology, Scope & objective

SCOPE

This project talks about the development of Article 356 since the making of the constitution and
it throws light on the misuse of this Article in India by the central government. It also talks about
the how the misuse of this article has gone down with the help of few contemporary.

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RESEARCH METHODOLOGY

Subject: Constitutional Law II


Topic: Failure of constitutional machinery in the state under Constitution of India
The research method which I opted for doing this project is Doctrinal research from primary and
secondary sources. I researched on web database having articles and reports related to my topic.
In addition to that, I also referred books available on Article 356. This research is descriptive and
analytical in nature. Footnotes have been provided wherever needed to acknowledge the source.

OBJECTIVES

 To discuss about failure of machinery in state under Article 356 of Constitution of India.

 To study and discuss about the procedure of invocation of emergency.

 To discuss the implementation of judicial Review in case of reviewing ‘president rule’.

 To study the evolution of the theory of president rule before S.R Bommai case and after S.R
Bommai case.

 To discuss the misuse of Article 356 by Union.

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Introduction

All States have the same right of self preservation as their subjects, and state like men have from
time immemorial, enacted safeguards for their own preservation and protection. 1 In monarchical
forms of government, the right of preservation of the state was exalted into a sacred right, and so
the violence against the state was considered as a lese majestic-lese majestic human, an offence
against the power, crown, dignity and majesty of Invisible God (lese majestic divine). Inspired
by the same, in common law the crime of treason was created. 2 As IPC was created at the time of
colonial rule, its inspiration became the same.

Wagering war against the state as well as sedation is the highest level of offence as per morality
as well as in practicality, it directly contravene in the normal functionary of state which tends
towards a kind of opposition of sovereignty which is the supreme force which shouldn’t be
questioned. All crimes are treated as offences against the State, or government, insofar as these
acts/actions disturb the public tranquillity, national integration and public order. But there are
some criminal activities that are directed against the existence of the state itself viz. treason,
sedition and rebellion. Thus cases reported under sections 121, 121A, 122, 123, 124A, 153A and
153B of Indian Penal Code (IPC) have been categorized as ‘Offences against the State’. As these
offences are detrimental to State security and it disturb tranquillity in the society and prejudicial
to national integration.3 The offences prescribed under chapter VI of Indian Penal Code may
broadly be classified into five categories4 depending on the gravity of the offence.

These are:-

1
K d gaur pg no- 305
2
S n mishra pg no - 322
3
www.ncrb.gov.in/StatPublications/CII/CII2015/chapters/Chapter%2021-15.11.16.pdf
4
Ratanlal and Dhirajlal, Law of Crimes, 24th edition., pp.470 to 480

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 Waging, collecting, concealing, attempting, abetting, and conspiring to wage, collecting
arms or ammunition to wage war against the Government of India (IPC, sections 121,
121A, 122, 123).

 Assaulting the President of India, or Governor of any state with intent to compel or
restrain the exercise of any lawful authority (IPC, section 124).

 Sedation IPC, section 124A.5

 Waging War against any Asiatic Power at peace with the Government of India (IPC
section 125) or committing depredation (damage caused by an attack) on territories of
such State (IPC, sections 125 and 126).

 Permitting or aiding the escape of a state prisoner or a prisoner of war (IPC, sections 128,
129 and 130).6

It is very important to conserve the interest of the sovereign as the action regarding such
conservation is protected under Article 19(2) of The Constitution of India.

CHAPTER II: - Constitutional Provisions in relation with Waging war against


Government of India.

5
Essay on Indian Penal Code, ILI (1962), pp. 135 -143.
6
K.D.Gaur, Criminal Law Cases and Materials, 5th Edn., (2008) pp. 731-740.

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Section 121:

To constitute the offence under section 121 of the Indian Penal Code the following ingredients
must exist:

 Waging War: - Waging War against the state can be accomplished by following ways: -

 Accused must wage war.


 Attempt to wage such war.
 Abet the waging of such war.
 Against the Government of India.

 Whoever: - This section applies to everyone, whether an Indian citizen or a foreigner.


Everyone who wages a war against the government of India is subject to prosecution and
punishment under this section. Foreigners are liable on the principle of de jure gentium
(allegiance and protection are reciprocally due from subject and sovereign) which admits
the right of foreigners to enter the country only upon the tacit condition that as they rely
upon its protection, they are also subject to its laws. 7

 Object of Section 121 :- To constitute an offence under section 121, in IPC no specific
number of persons is necessary and the manner in which they are equipped or armed is not
material. The true criterion is quo animo (with what mind, intent) 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 Governmental authority. There is

7
K D Gaur pg no -307

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no distinction between principal and accessory and all who take part in the unlawful act
incur the same guilt.

But where a group of people pledge to propagate against capitalism and private ownership
which according to them are dangerous to the advancement of society, and work towards
this end to establish a socialistic state under the leadership of the working class, the act will
not come under section 121.

In maganlal Radhakrishan v. Emperor8, the following characteristics of this offence were pointed
out :-

(1). No specific number of persons is necessary to constitute this offence;

(2). The number of person concerned and the manner in which they are equipped in immaterial;4

(3). The true criterion is “ Quo Animo”, did the gathering assemble?

(4). 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.

(5). There is no distinction between principal and accessory and everyone who takes part in the
unlawful act incurs the same gulit.

Waging war means waging war in the manner usual in war. In order to support a conviction
under this section it would not be enough to show that the persons charged have connived to
obtain possession of an armory and have when called upon to surrender it, used the rifles and
ammunition so obtained against the state troops. It must also be shown that the seizure of the
armory was part and parcel of planned operation and their intention in resisting the troops of the

8
A.I.R 1946 Nag. 126.

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state. A deliberate and organised attack upon the government forces and government institutions
amounts to waging a war.

Abets the waging of war: - Abetment of waging war is made a special offence. It is not essential
that as a result of the abetment the war should in fact be waged. Although the general rule
relating to abetment has made a distinction for purpose of punishment between the abetment
which has succeeded and the abetment which has failed, this section makes no distinction
between the two. The reason behind treating an abetment which has succeeded and abetment
which has not succeeded on par, is because the crime is treated as the highest offence against the
state. It has also do with the peculiarity of the offence. If the offence of waging war against the
state is successfully committed, the criminal is secure from punishment because the government
itself is subverted.

In state (N.C.T. OF Delhi) v. Navjot Sandhu9, terrorists entered parliament house with
sophisticated arms and powerful explosive when parliamentary business was being conducted
therein. The Supreme Court held that the undoubted objective and determination of deceased
terrorists was to impinge on sovereign authority of nation and its Government. It amounts to
waging war or attempting to wage war against government of india. It was also held that to
constitute offence of waging war under this section 121 I.P.C., the intention and purpose of the
warlike operations directed against the governmental machinery is an important criterion.

In the instant case the target chosen was the parliament- a symbol of sovereignty of the Indian
republic comprised of people representative. The target, the obvious objective which has political
and public dimensions and the modus operandi, adopted by the hard core ‘fidayeens’ are all
demonstrartive of intention of launching a war against the government of india. In view of the
above the supreme court held that the criminal acts done by deceased terrorists in order to
capture the parliament house amount to waging or attempting to wage war. To constitute offence

9
2005 Cri L. J.3950 (S.C.).

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of waging war, military or other forces need not be directed target of attack. Thus imposition of
punishment of death sentence on accused who abetted waging of war, was held to be proper10.

Conspiracy to Wage War

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 make place in pursuance thereof11.

Section 121A thus deals with the two kinds of conspiracies, namely, conspiracy to wage war (or
to attempt or abet) against the government of India, and conspiracy to overawe, by means of
criminal force or the show of criminal force12.

Ingrdients:- The section deals with two kinds of conspiracies : -


1. Conspiring within or without India to commit any of the offence punishable by s.121.
2. Conspiring to overawe by means of criminal force, or the show of criminal force the
central Government or any State Government.

The words ‘ conspiracies 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

10
Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 312-314
(Central Law Publication, Allahabad, 19th edition).
11
https://indiankanoon.org/doc/1949191/

12
Dr. K. I. Vibhute, P S A Pillai’s Criminal Law [Incorporating, The Criminal Law (Amendment)
Act, 2013], 334 (Lexis Nexis, Gurgaon, 12th edition 2014).

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Government or any State Government by the organization of a serious riot or a large and
tumultuous unlawful assembly.

The expression “Conspiring to overawe by means of criminal force, or the show of criminal
force” was intercepted by the Kerala High Court in Arbind v. State. The court observed that the
word “overawe” means something more than the mere creation of apprehension, alarm or fear. It
connotes the creation of situation in which the government feels itself compelled to choose
between yielding to force or exposing itself or members of the public to a very serious danger.
Therefore, the slogan that the government can be changed through force., does not mean that a
criminal conspiracy has taken place to change the government through force13.

Preparation To Wage War

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 Government of India, shall be
punished with imprisonment for life or imprisonment of either description for a term not
exceeding ten years, and shall also be liable to fine14.

Ingredients; - the following are the ingredients of this section: -


1. Collecting men, arms or ammunition etc.,
2. The intention of the above act should be to wage war against the government of India.
This section aims putting down with heavy hand any preparation to wage war against the
govt. of India.15
Concealment of Design to Wage War

13
Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 315(Central Law
Publication, Allahabad, 19th edition).
14
https://indiankanoon.org/doc/1661760/
15
Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 315(Central Law
Publication, Allahabad, 19th edition).

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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.16
Ingredients.- the following are essential of this section.-
1. The existence of a design to wage war against the Govt. of India.
2. Such a design must be within the knowledge of the accused.
3. The accused must have concealed that design.
4. The concealment must have been intended to facilitate the design of wage war.

It was held in State (N.C.T. Delhi) v. Novjot Sandhu, that the accused had knowledge of
conspiracy and plan of terrorists to attack parliament house. His illegal omission to
apprise police or magistrate of the design of conspirators which is an act of wagging war
would make him liable for offence under this section 123 I.P.C.17

16
https://indiankanoon.org/doc/1999903/
17
. Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 316(Central
Law Publication, Allahabad, 19th edition).

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CHAPTER III: - Constitutional Provisions of Sedition

Sedation:

Free speech is one of the most significant principles of democracy.. 18 The freedom of speech and
expression is the first and foremost human right, the first condition of liberty, mother of all
liberties, as it makes the life meaningful. This freedom is termed as an essence of free society.
The Universal Declaration of Human Rights, 1948, in its Preamble and Article 19 declared
freedom of speech as a basic fundamental right.19

The freedom of speech often poses difficult questions, like the extent to which State can regulate
individual conduct.20 Since, individual‘s autonomy is the foundation of this freedom, any
restriction on it is subject to great scrutiny. However, reasonable restrictions can always be
imposed on this right in order to ensure its responsible exercise and to ensure that it is equally
available to all citizens. According to Article 19(3) of the International Covenant on Civil and
Political Rights 1966 (ICCPR), this freedom may be subjected to restrictions, provided they are
prescribed by law and are necessary for respecting the rights or reputation of others or for the
protection of national security, public order, public health or morals. 21 Article 19(1)(a) of the
Constitution of India guarantees freedom of speech and expression to all citizens.

18
Stephen Schmidt, Mack C. Shelly et. al, American Government and Politics Today 11 (Cengage Learning, USA,
2014)
19
Article 19 of International Covenant on Civil and Political Rights, 1966 (ICCPR); Article 9 of African Charter on
Human and Peoples‘ Rights,1981; Article 10 of European Convention for the Protection of Human Rights and
Fundamental Freedoms,1950; Article 13 of American Convention on Human Rights,1969
20
S. Sivakumar, Press Law and Journalists 18-20 (Universal Law Publishing Co. Lexis Nexis, Gurgaon, 2015)
21
Article 19 of the International Covenant of Civil and Political Rights 99 U.N.T.S. 171 (1966)

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However, this freedom is subjected to certain restrictions namely, interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Section 124A: -

Ingredients.- The following are the two essentials of sedition:

(1). Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite
disaffection towards the government of india.

(2). Such act or attempt may be done (1) by words, either spoken or written, or (ii) signs, or (iii)
by visible representation.

Exciting disaffection.- to constitute an offence under this section it is not necessary that one
should excite or attempt to excite mutiny or rebellion or any kind of actual disturbance, it would
be sufficient that one tries to excite feeling of hatred or contempt towards the government. In a
case the federal court has opined that the essence of the offence of the sedition is incitement to
violence; mere abusive words are not sufficient and that “public disorder or the reasonable
anticipation or likelihood of public disorder is the gist of offence.

Attempt.- a person may be charged not only with exciting but also with attempting to excite and
both successful and unsuccessful attempts to excite disaffection were placed on the same footing.
So even if a person had only tried to excite the feeling he could be convicted. In Surendra
Narayan Adicharya,22 it was held that sending through the post of a packets containing a copy of
a manuscript of a seditious publication with a covering letter requesting the addressee to
circulate it to others, when the same was intercepted by another persons and never reached the
addressee, constitutes an attempt to commit an offence under this section.

Government established by law.- the expression “ Government established by law in India”


includes the executive power in action and does not mean merely the constitutional framework.
22
(1911) 39 Cal. 522.

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It includes the state Government as well as the Central Government. Government does not mean
the person or persons for the time being. It means the person or persons collectively, in
succession, who are authorized to administer government for time being. A general criticism of
certain officers cannot be deemed to be a criticism of government established by law in india.

Various form of excitement.- disaffection may be excited in a number of ways. Writing of any
kinds, poem, drama, story, novel, or essays may be used for the purpose of exciting disaffection.
But seditious writing, if it remains in hands of author or unpublished does not constitute this
offence because publication of some kinds is necessary.

Explanation 1: - explanation 1 makes it clear that the word “disaffection” includes disloyalty and
all felling of enmity. Disaffection means anything which is “contrary to affection”. It is very
much nearer to ‘hatred or dislike’. “feeling of enmity” includes ill-will, hostility, feelings of
dislike amounting to enmity, and anything of a similar class or character which can be
summarized under the expression ‘ disloyalty’ and ‘ feelings of enmity’.23

Explanation 2 and 3:- the word ‘disapprobation’ means disapproval. Explanations 2 & 3 provides
that as long as a person does not excite or attempt to excite hatred, contempt or disaffection, then
expressing disapproval of the acts of the government in order to bring about change by lawful
means or criticizing or disapproving the administration, does not constitute an offence.

The purpose of the explanation is to give adequate protection from penal action to freedom of
speech and expression. It is for the purpose of giving greater latitude to the media and others to
openly criticize the government and ministers.

23
. Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 317-
21(Central Law Publication, Allahabad, 19th edition).

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CHAPTER IV: - Historical Background and Case Laws

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(A) Historical Background: -

Macaulay‘s Draft Penal Code 1837 consisted of section 113 that corresponded to section 124A
IPC. The punishment proposed was life imprisonment. Sir John Romilly, Chairman of Second
Pre-Independence Law Commission commented upon the quantum of the punishment proposed
for sedition, on the ground that in England the maximum punishment had been three years and
he suggested that in India it should not be more than five years. 24 However, this section was not
included in the IPC when it was enacted in 1860.

Mr. James Stephen thereafter set out to rectify this omission. Consequently, sedition was
included as an offence under section 124A IPC through special Act XVII of 1870.

B. Pre-Constitution Rulings

Section 124A IPC was extensively used to curb political dissent in India. Jogendra Chandra
Bose,25 was charged with sedition for criticizing the Age of Consent Bill and the negative
economic impact of British colonialism. While directing the jury on the case, the Court
distinguished sedition as was understood under the Law of England at that time, from section
124A IPC. It was observed that the offence stipulated under section 124A IPC was milder, as in
England any overt act in consequence of a seditious feeling was penalized, however in India only
those acts that were done with an intention to resist by force or an attempt to excite resistance by
force‘ fell under this section.

Case Laws:

24
35 Dr. Hari Singh Gour, Penal Law of India, vol. 2, 11th edn., Law Publishers (India) Pvt. Ltd., Allahabad, 2011,
p. 1232
25
http://archive.org/stream/onlawofsedition00dono#page/2/mode/2up (last visited on Nov.2, 2018)

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CHAPTER V:- Inference

Conclusion:

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It is thus understood that there will always be ambiguity as to whether sedition law in India is
violative of Art 19(2) of our constitution. The case of Kedar nath Singh has given this debate a
new dimension following which there have been a number of cases highlighting and dealing with
the same problem thereby providing some parameters and clarifying the aspects of ‘what
amounts to waging a war against a state’. It is only when the words written, spoken etc., which
have the pernicious tendency or intention of creating public disorder or disturbance of law and
order that steps into prevent such activities in the interest of the society at large. So construed the
law dealing with waging war against the state in my opinion, strikes the right balance between
individual fundamental rights and the interest of public order, national interest and national
security.26

References

BOOKS -

INTERNET –
26
https://www.lawteacher.net/free-law-essays/constitutional-law/waging-a-war-against-the-state-constitutional-law-
essay.php

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UNPUBLISHED SOURCES –

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