Report No. 42

6.6. Section 121.-

Section 121 prescribes the same punishment, namely death or imprisonment for life, for the principal offence of waging war against the Government of India and for abetting that offence or, attempting to commit that offence. The section does not require any change.

6.7. "Adherence" to India's enemies to be punishable.-

It is curious that while waging war against India is dealt with in all aspects in sections 121 to 123, no mention is made of the other important aspect of treason, viz., "adhering to the King's enemies, giving them aid and comfort". Abetment of waging war which is punishable under section 121 may not cover all cases of such adherence. In the United States, the offence of treason is defined in the following terms.-

"Whoever, owing allegiance to the United States, levies war against them, or adheres to their enemies giving them aid and comfort within the United States or elsewhere, is guilty of treason etc."1 Although this enactment (or re-enactment) is quite recent,2 it reproduces the rather archaic words3 of the English Statute of Treason. The Canadian Criminal Code4 gives expression to the same idea in more precise and modern terms which we could well adopt. We propose that a new section may be added after section 123 reading as follows.-

"123A. Assisting India's enemies.- Whoever assists in any manner an enemy at war with India, or the armed forces of any country against whom the armed forces of India are engaged in hostilities, whether or not a state of war exists between that country and India, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

1. U.S. Code (as amended upto 1966), Title 18, section 2381.

2. June 25, 1948.

3. Articles 102(1)(d) and 191(1)(d) of the Constitution refer to "allegiance or adherence to a foreign state".

4. See section 46(1), clause (c).

6.8. Section 121.-revision recommended.-

Section 121A punishes two different kinds of conspiracy. The first is a conspiracy to wage war against the Government of India, and the second is a conspiracy to overawe by force the Central Government or any State Government. In view of section 120B, as proposed to be revised by us1, there is hardly any need for a separate section to deal with the first kind of conspiracy. If any such conspiracy actually results in the waging of war against the Government of India, or even an attempt to wage such war, the conspirators will be punishable with death or imprisonment for life under section 121 read with section 120B; and if the conspiracy is infructuous, they will be punishable with half the longest term of imprisonment provided for the offence, that is, ten years, which should be sufficient.

It is difficult to see what purpose is served at present by the words 'within or without India' which appear at the beginning of the section. When it was enacted in 1870, the exterritorial application of, the Code was limited to offences committed by Government servants in the territory of any Indian State2. By referring to conspiracies entered into "without British India" the section was apparently intended to cover British subjects and not foreigners. "Even where a statute creating a criminal offence is clearly expressed so as to cover acts committed outside the jurisdiction, it will in the absence of further clear provision only be regarded as covering such acts when committed by British subjects."3 In view of sections 1 and 4 of the Code as they stand at present, it is fairly clear that section 121A cannot apply to the acts of foreigners committed outside India. We consider the words "within or without India" are of no practical consequence or significance and should be omitted.

As regards the second kind of conspiracy, we think it desirable to extend the idea to overawe by criminal force or by show of criminal force, the Parliament of India or the legislature of any State in addition to overawing the Central Government or any State Government. At present, the award of simple imprisonment is permissible under the section, which in view of the gravity of the offence is not appropriate. It should be rigorous imprisonment in all cases.

We accordingly propose that section 121A may be revised as follows.-

"121A. Conspiracy to overawe the Parliament or Government of India or the Legislature or Government of any State.- Whoever conspires to overawe, by means of force or show of force, the Parliament or Government of India, or. the Legislature or Government of any State, shall be punished with imprisonment for life or with rigorous imprisonment for a term 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 take place in pursuance thereof."

Since this offence is akin to the one described in section 124, it would be logical to bring it after the three sections dealing with waging war and the proposed new section about assisting India's enemies, and to number it 123B.

1. See para. 5.39, above.

2. See para. 1.9 above for the text of section 4 as originally enacted.

3. Per Lord Morris in Treacy v. D.P.P., (1971) 1 All ER 110 (114).

6.9. Sections 122 and 123.-

It has been suggested by a public prosecutor that a specific reference to nuclear weapons, besides arms and ammunition, should be made in section 122, and also that transport of men, arms, etc., should be mentioned, besides collecting them. We have, however, no doubt that the words "otherwise prepares to wage war" are wide enough to cover both ideas, and there is no need to amplify the section as suggested or in any other way.

The only change we propose in sections 122 and 123 is to replace "imprisonment of either description" by "rigorous imprisonment". Here again, for a grave offence affecting the security of the state, simple imprisonment is hardly an appropriate punishment.

6.10. Section 124 to cover also heads of legislatures and of the judiciary.-

We considered a suggestion that the scope of section 124, now applicable only in relation to the President of India and the Governors of States, should be widened to cover certain other high dignitaries like presiding officers of legislative bodies and Chief Justices. We agree that, as symbolic heads of the trinity of State power, the use of force against them with the intention of compelling them to act, or not to act, in a particular way should be regarded as a treasonable act, and should be punished equally severely.

In regard to the substance of the offence, it does not seem necessary to cover expressly attempts to restrain wrongfully and attempts to overawe by force. These may be left to be governed by the general provision for attempts.1 The section may accordingly be revised as follows.-

"124. Assaulting President, etc., with intent to compel or restrain the exercise of any lawful power.- (1) Whoever, with the intention of inducing or compelling any office-holder to whom this section applies, to exercise or restrain from exercising in any manner any of his lawful powers, assaults, or wrongfully restrains, or overawes by means of force or the show of force, such office-holder, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

(2) The office-holders to whom this section applies are.-

(i) the President of India;

(ii) the Vice-President of India;

(iii) the Chief Justice of India;

(iv) the Speaker of the House of the People;

(v) the Governor of any State;

(vi) the Chief Justice of any High Court;

(vii) the Speaker of the Legislative Assembly of any State; and

(viii) the Chairman of the Legislative Council of any State."