Table of Contents

WAGING WAR (Sec 121 and 121A)

Table of Contents

THEORETICAL OVERVIEW

Under the Indian Penal Code (IPC), waging war is covered under Sections 121 to 130. These sections deal with offences related to waging or attempting to wage war against the Government of India. The term “waging war” must be interpreted broadly and can only refer to executing a dispute in the way customary for war. It excludes overt actions like gathering a group of men, weapons, and ammo. The inter-country war, which involves military actions between two or more countries, is not included in this form of war in the international sense. Per Section 121, it is made clear that “war” does not refer to traditional hostilities between nations; rather, it refers to taking part in or organising an uprising against the Indian government. Warfare is a method of using violence to achieve any goal of a public nature.

Let’s take a look at the essential ingredients and elements of this offence:

1. Waging war or attempting to wage war: The act of waging war refers to engaging in armed hostilities or using force against the Government of India or attempting to do so. This can include actions like organizing, promoting, or participating in armed rebellions, insurrections, or other violent activities aimed at overthrowing the government.

2. Against the Government of India: The offence of waging war must be directed specifically against the Government of India. It involves acts aimed at challenging the country’s sovereignty, territorial integrity, or constitutional authority.

3. Use of force or arms: The offence of waging war typically involves the use of force, arms, or violence to carry out the act. This can include organizing armed groups, carrying firearms, explosives, or other lethal weapons, and engaging in activities that directly threaten the security and stability of the government.

4. Conscious intention: To establish the offence of waging war under the IPC, it is crucial to establish the accused person’s conscious intention to wage war against the government. This means proving that the person had a deliberate and willful intent to engage in hostilities or violent activities against the government.

5. Evidence of planning or preparation: To substantiate the charge of waging war, evidence of planning or preparation for the act is essential. This can include documents, correspondence, witness statements, or any other evidence that demonstrates the accused’s involvement in activities related to the organization, coordination, or execution of a war against the government.

 Section 121A defines the conspiracy to commit offences punishable under section 121 which was added in the year 1870. Whoever conspire to commit under 121 or conspires to overawe, by means of criminal force or show of criminal force shall be liable for imprisonment of life or it ma extent to 10 years and shall be liable for fine. Moreover, to constitute conspiracy, it is not necessary that any act or illegal omission shall take place in pursuance thereof. Mere intention or preparation is punishable.

The two sorts of conspiracies covered in this section are:

1. Making plans, whether inside or outside of India, to commit an offence covered by Section 121 of the Code.

2. Planning to intimidate the government with illegal force or only a show of force to intimidate it.

IMPORTANT DIFFERENCES

Waging war Rioting
Waging war refers to engaging in an armed conflict or taking up arms against the government or assisting others in doing so, to wage war against the state.Rioting involves the use of violence, force, or threat of violence by an unlawful assembly of people, causing a disturbance or public disorder.
The intention behind waging war is to overthrow or undermine the state’s authority or engage in armed conflict against the state.The intent behind rioting is generally related to a specific incident, such as expressing dissatisfaction, protesting, or causing public disorder, but not necessarily aiming to overthrow the government.
Waging war usually involves organized armed groups or rebellion on a larger scale, such as an insurrection or a terrorist attack against the state.Rioting typically involves a spontaneous or localized group of individuals engaging in violent acts, often without a highly organized structure.
Waging war against the state is a grave offence under the Indian Penal Code. It is covered under Section 121 and can be punishable by imprisonment for life or even the death penalty.Rioting is covered under Section 147 of the Indian Penal Code and is a relatively lesser offence. The punishment for rioting can include imprisonment for up to two years, a fine, or both.
Waging war generally targets the state, its institutions, or its representatives, to challenge or overthrow the government.Rioting usually involves violence or public disorder targeted at specific locations, communities, or situations but not necessarily directed at overthrowing the government.

RELEVANT SECTIONS

Under the Indian Penal Code (IPC), the act of waging war is primarily covered under Sections 121 to 130. These sections define various offences related to waging or abetting the waging of war against the Government of India.

1. Section 121: Waging, or attempting to wage war, or abetting waging of war against the Government of India: This section deals with the offence of waging war against the Government of India or attempting to do so. It includes actions such as collecting arms, ammunition, or any material to wage war. It also includes actions that are meant to aid or abet the waging of war.

2. Section 121A: Conspiracy to commit offences punishable by Section 121: This section covers the offence of conspiring to commit acts mentioned in Section 121. It criminalizes the act of plotting or planning to wage war against the Government of India.

3. Section 122: Collecting arms, etc., with intent to wage war against the Government of India: This section deals with the act of collecting or preparing arms, ammunition, or any material to use them to wage war against the Government of India.

4. Section 123: Concealing with intent to facilitate design to wage war: This section covers the act of hiding or concealing any arms, ammunition, or material to facilitate the design to wage war against the Government of India.

5. Section 124: Assaulting President, Governor, etc., with intent to compel or restrain the exercise of any lawful power: This section deals with the offence of assaulting or using criminal force against the President of India, the Governor of a state, or any public servant with the intent to compel or restrain the exercise of any lawful power.

6. Section 125: Waging war against any Asiatic Power in alliance with the Government of India: This section pertains to the offence of waging war against any Asiatic power that is in alliance with the Government of India. It criminalizes acts that are committed to wage war against such an ally.

7. Section 126: Committing depredation on territories of Power at peace with the Government of India: This section covers the offence of committing depredation (plundering or damaging) on the territories of any foreign power that is at peace with the Government of India. It includes acts such as invading, attacking, or damaging the property of such a foreign power.

8. Section 127: Receiving property taken by the war on depredation mentioned in Section 126: This section criminalizes the act of receiving any property that has been taken by war or depredation mentioned in Section 126. It applies to situations where individuals knowingly receive or possess such property.

9. Section 128: Public servants voluntarily allowing prisoners of State or war to escape: This section deals with the offence committed by a public servant who voluntarily allows a prisoner of the state or a prisoner of war to escape from lawful custody.

10. Section 129: Public servant negligently suffering prisoner of State or war to escape: This section covers the act of a public servant negligently allowing a prisoner of the state or a prisoner of war to escape from lawful custody.

11. Section 130: Aiding escape of, rescuing or harbouring such prisoner: This section criminalizes the act of aiding the escape, rescuing, or harbouring a prisoner of the state or a prisoner of war who has been lawfully detained.

IMPORTANT CASE LAWS

Barendera Kumar Ghosh V. Emperor

It was said that Section 121 must be composed in a special but straightforward fashion so that, in common sense, its scope is not exclusively limited to overt acts like the gathering of troops, weapons, and ammunition. It is crucial to prove that there was an attempt to violently achieve any goal of a public nature, undermining the foundation of the sovereign’s power. There must have been both a force supporting the uprising and an insurrection of a widespread type.

Mir Hasan Khan & Others V. State

In this instance, it was decided that to prove a violation of Section 121, it had to be shown that the defendant desired to own any type of armoury, had used the rifles and ammunition against the State troops, and that the capture of the ordnance was an essential component of a planned operation.

Tara Singh V. Territory of Punjab

In this instance, it was determined that section 124A was invalid because it violated the freedom of speech and expression guaranteed by Article 19(1)(a). As a result, it was determined that Section 124A violates the Constitution in its attempt to counteract truly appalling attitudes towards the government. The essential framework of the constitution, which upholds the right to free speech, has inspired several ideas to modify section 124A.

In Nazir Khan v. State of Delhi, The Court noted that in these circumstances (waging war), it is not sufficient to show that the accused conspired to acquire the arsenal and, when forced to surrender, they responded by utilising such an armament against the government agents. Additionally, it must be demonstrated that the armoury’s seizure was an integral element of a planned attack against the government to overwhelm the targeted forces.

In N.C.T. Delhi v. Navjot Sandhu, according to the Court, those who conspire to commit crimes covered by Section 121 are subject to punishment under Section 121A, with a life term as the maximum penalty. The second element of Section 121A is the conspiracy to intimidate the Central Government or any State Government by using criminal force or the threat of using criminal force. According to the Section 121-A explanation, no unlawful act or omission is required to occur for the aforementioned offence to be committed. There are many similarities between war, terrorism, and using force to overthrow the established government.

IMPORTANT LEGAL MAXIMS

  1. Jus ad bellum: This Latin phrase translates to “right to war” and refers to the principles and conditions under which a state may justifiably engage in warfare. It encompasses the concept of just war, which includes requirements such as just cause, legitimate authority, right intention, proportionality, and a reasonable prospect of success.
  2. Jus in Bello: This phrase translates to “law in war” and relates to the principles and rules that govern the conduct of parties engaged in armed conflict. These rules aim to limit the suffering and destruction caused by warfare and protect the rights of individuals affected by it. Key principles under jus in bello include distinction, proportionality, military necessity, and humane treatment of prisoners of war.
  3. Prohibited weapons: This maxim refers to the principle that certain weapons or methods of warfare are considered illegal or prohibited. International humanitarian law, which governs armed conflict, prohibits the use of weapons that cause unnecessary suffering, indiscriminately harm civilians, or violate specific treaties and conventions, such as chemical weapons, biological weapons, and certain types of landmines.
  4. Noncombatant immunity: This principle emphasizes the protection of civilians and noncombatants during armed conflict. It prohibits intentionally targeting civilians, nonmilitary personnel, and civilian infrastructure unless they are directly participating in hostilities. This principle is closely tied to the concept of distinction, which requires parties to differentiate between combatants and noncombatants and to direct attacks only against legitimate military targets.

IMPORTANT CONCEPTS

Preparation to Wage War

The IPC’s Section 122 addresses war preparedness. There is a distinction between making an effort and being ready to conduct the crime. The following is the section’s essentials:

  • A grouping of people, weapons, and ammo.
  • For there to be a collection, there must be a purpose to start a war or make preparations to start one, participation by the accused in the collection, and a war against the Government of India.

Under this Section, the penalty is either life in prison or ten years in jail plus a fine. For instance, if print material and other items are discovered in the accused’s room, they are not deemed offensive or upsetting. Therefore, under this Section, the accused cannot be found guilty.

Concealment of Design to Wage War

The concealing of a purpose to wage war is addressed under Section 123 of the IPC. The requirements of this section are: 

(1) There must be a design that is prepared to wage war against the Government of India; 

(2) It must be concealed to facilitate that war; and 

(3) The person responsible for concealing the design must be aware of it.

A fine and a jail sentence of up to ten years are the penalties under this section.

For instance, in the Parliament attack case, the accused knew about a terrorist plot and a conspiracy. His liability under Section 123 of the IPC resulted from his unlawful omission.

POINTS TO REMEMBER

  • The act of waging war refers to engaging in armed hostilities or using force against the Government of India or attempting to do so.
  • The offence of waging war typically involves the use of force, arms, or violence to carry out the act.
  • Rioting is different from waging war. Rioting involves the use of violence, force, or threat of violence by an unlawful assembly of people, causing a disturbance or public disorder.
  • Section 121A defines the conspiracy to commit offences punishable under section 121 which was added in the year 1870.
  • The IPC’s Section 122 addresses war preparedness. There is a distinction between making an effort and being ready to conduct the crime

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