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 &

Limitations

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

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

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

CHAPTER II: - Constitutional Provisions of 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
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  Conclusion----------------------------------------------------------------------
 References----------------------------------------------------------------------

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

Limitations

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 of 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

CHAPTER III: - Constitutional Provisions of Sedition

7
K D Gaur pg no -307

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Sedation:

Free speech is one of the most significant principles of democracy.. 8 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.9

The freedom of speech often poses difficult questions, like the extent to which State can regulate
individual conduct.10 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.11 Article 19(1)(a) of the
Constitution of India guarantees freedom of speech and expression to all citizens.

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: -

8
Stephen Schmidt, Mack C. Shelly et. al, American Government and Politics Today 11 (Cengage Learning, USA,
2014)
9
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
10
S. Sivakumar, Press Law and Journalists 18-20 (Universal Law Publishing Co. Lexis Nexis, Gurgaon, 2015)
11
Article 19 of the International Covenant of Civil and Political Rights 99 U.N.T.S. 171 (1966)

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CHAPTER IV: - Historical Background and Case Laws

CHAPTER V:- Inference

Conclusion
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.12

References

12
https://www.lawteacher.net/free-law-essays/constitutional-law/waging-a-war-against-the-state-
constitutional-law-essay.php

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BOOKS -

INTERNET –

UNPUBLISHED SOURCES –

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