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Report No. 42

Chapter 6

Offences against The State

6.1. Introductory.-

With this chapter begins the definition of particular offences which the makers of the Code thought fit to include in it. Despite the large numbe.-about 40.-of such offences for which the punishment is prescribed in the Code, the compilation cannot in the nature of things be exhaustive. We have, and doubtless shall continue to have, other types of wrongful, injurious or antisocial conduct made punishable under other laws. While an enlargement of the scope of the Penal Code by including therein some of the offences now punishable under a special or local law may be desirable, it is neither necessary nor practicable to attempt to make the Code an absolutely complete law of crimes.

6.2. Analysis of offences included.-

The title of this chapte.-Offences against the Stat.-does not appear to be a particularly apt description of the dozen offences brought together within its compass. The first five sections deal with what may be called acts of high treaso.-waging war against the Government of India, conspiring to wage war, preparation to wage war, misprision of such activities and overawing the Government or the Head of State by force. Next we have a section punishing one aspect of sedition.

Then three sections aim at preserving friendly relations with foreign States by punishing those who attempt to prejudice those relations by unwarranted aggressive action. The last three sections of the chapter, which relate to prisoners of war and state prisoners, are not of much practical importance during peace time, especially since the category referred to as "State prisoners" during the British regime no longer exists, having given place to the less dignified appellation of "persons under preventive detention".

6.3. Other Acts dealing with security and integrity of India.-

This chapter is thus by no means a comprehensive, or even adequate, codification of treason, sedition and other kindred offences against the security and integrity of the Union of India and of the States comprising the Union. This wide field, however, is covered to some extent by a number of other Central Acts of which we may briefly notice the following.-

(i) The Foreign Recruitment Act, 1874: This Act empowers the Central Government to prohibit or control the recruitment in India of persons for the service of any foreign State in any capacity, whether civil or military. The British statute entitled the Foreign Enlistment Act, 1870, which was a law in force in the Dominion of India immediately before the commencement of the Constitution, is perhaps more relevant from this point of view. It prohibits British subjects from enlisting in the military or naval service of any foreign State at war with a foreign State at peace with Britain. A law on these lines applying in relation to India and Indian citizens is an obvious desideratum.

(ii) The Indian Criminal Law Amendment Act, 1908, as enacted, provided in one part for the more speedy trial of persons committing violent crimes, and in another part, for the suppression of associations dangerous to the public peace. The first part of the Act was repealed in 1922. Under the second part, which is still in force, such persons as are members of, or in any way assist, an association which encourages or aids the commission of acts of violence or intimidation, or of which the members habitually commit such acts, are made liable to punishment. A severe punishment is provided for persons managing or promoting such associations. Where the State Government declares such an association to be unlawful, persons maintaining their connection with the association are liable to punishment.

(iii) The Official Secrets Act, 1923: Based on the English Acts of 1911 and 1923 on the same subject, this Act constitutes the chief legal weapon for fighting espionage in this country. It is, however, not confined to espionage in the strict sense; it prohibits a number of other acts prejudicial to public safety which could be broadly described as sabotage.

(iv) The Criminal Law Amendment Act, 1938, punishes a person who, with intent to affect adversely the recruitment of persons to serve in the armed forces of the Union, wilfully dissuades persons from entering any such force, or intigates persons to enter an armed force and then commit acts of mutiny and insubordination from within. Prima facie, this straightforward penal provision would appear suitable for inclusion in chapter 7 of the Code as an offence relating to the armed forces of the Union.

(v) The Criminal Law Amendment Act, 1961, makes it an offence for any one to question by speech or writing the territorial integrity or frontiers of India in a manner which is, or is likely to be, prejudicial to the safety and security of the country.

(vi) The Unlawful Activities (Prevention) Act, 1967, is an important piece of legislation dealing with treasonable acts affecting the territorial integrity and inviolability of the country. Any activity which is intended to disrupt the territorial integrity of India, as to bring about the cession of a part of the territory of India or the secession of a part from the Union is declared by the Act to be "unlawful", and punishments are provided for individuals and associations who indulge in such activities.

6.4. Consideration of law of treason etc. to be taken up separately.-

We notice that treason, sedition and cognate offences, which may be classified as offences against the security of the State, are dealt with in foreign codes in much greater detail than in our Penal Code. In particular, it is noticeable that treason and treasonable activities are spelt out elaborately, and not limited to waging war against the Government and assaulting the head of State. On a preliminary study of the problem, we have come to the conclusion that the strengthening, consolidation and revision of this important branch of the criminal law should be taken up as a separate project and studied in depth. We shall accordingly confine ourselves, in the present revision of the Penal Code, to an examination of the provisions of Chapter 6 as they now stand.

6.5. Treason in English law.-

In their History of English Law, Pollock and Maitland1 observe that "treason is a crime which has a vague circumference and more than one centre". This is illustrated by the first attempt to its definition in the Statute of Treason2 which was enacted in 1352 to remove doubts about the meaning of the term, but which merely listed seven different activities as treason, namely.-

(1) to compass or imagine the death of the King, his Queen or eldest son;

(2) to violate the King's wife, or his eldest unmarried daughter, or his eldest son's wife;

(3) to levy war against the King in his realm;

(4) to be adherent to the King's enemies in his realm, giving them aid and comfort in the realm or elsewhere;

(5) to counterfeit the King's great or privy seal, or his money;

(6) to bring false money into the realm; and

(7) to slay the chancellor or treasurer or justices, being in their places, doing their offices.

To us, at the present day, there would not seem to be much inter-connection between these items, and apart from items 3 and 4.-levying war against the King in his realm. and adhering to the King's enemie.-the other items would hardly be regarded as treasonable acts. Pollock and Maitland refer to the two main items as constituting "the development of a new political idea Treason has been becoming a crime against the state; the supreme crime against the state is the levying of war against it. A right, or duty, of rising against the King and compelling him to do justice can no longer be preached in the name of law; and this is well".3 This was written in 1895, but it continues to be valid today, substituting 'government' for 'King' in' regard to democratic regimes.

1. Pollock and Maitland History of English Law, (1968), Vol. 2, p. 502.

2. 25 Edw. III, State 5, C. 2.

3. Pollock and Maitland History of English Law, (1968), Vol. 2, p. 503.

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