Report No. 156
Offences against the State
7.01. Offences against the State are included in this chapter. It has the flavour of the approach of Empire builders. The chapter has undergone very little amendment save for the introduction of section 121A by the Act )0(VII of 1870 and section 124A by the Act IV of 1898. These additional sections were introduced to plug a loophole because of an inadvertent omission of a special provision for the punishment of the offence of abetment of rebellion, to protect at the relevant time the Empire builders.
However, no Government can afford to allow a threat to develop to its existence by a small coterie of people. There is no country on earth in which there is not a small minority group commonly known as terrorists which is always up in arms against the established Government. The secessionist activity has reared its ugly head even in countries which appeared to have an integrated personality. It has become necessary to provide permissible norms of political behaviour, violation of which must be punishable.
This chapter provides for punishment of those engaged in waging a war against the Government of India, conspiracy to commit such offences, preparation to commit such offences such as collecting arms etc. with intention of waging war and concealing the existence of a design to wage war. Section 124A which provides punishment for sedition was described by the Father of the Nation as the prince amongst the political sections of the Indian Penal Code. It may be mentioned that such renowned personalities as Mahatma Gandhi, the Father of the Nation, and Bal Gangadhar Tilak were also tried and punished during the heyday of British Empire under section 124A.
The line dividing preaching disaffection towards the Government and legitimate political activity in a democratic set-up cannot be neatly drawn. Where legitimate political criticism of the Government in power ends and disaffection begins, cannot be ascertained with precision. The demarcating line is thin and wavy. What was sedition against the imperial rulers may today pass off as a legitimate political activity in a democratic set-up under our libertarian Constitution. The interpretation of the relevant sections in this chapter will have to be moulded within the letter and spirit of the Constitution.
In this chapter, the first five sections deal with what may be called acts of high treason waging war against the Government of India, conspiring to wage war, preparation to wage war, facilitating of such activities and overawing the Government or the Head of State by force.
Next section is the punishing one 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".
7.02. With this chapter begins the definition of particular offences which the makers of the Code thought fit to include in it. Despite the large number - about 400 - of such offences for which the punishment is prescribed in the Code, the compilation cannot in the nature of things be exhaustive. Other types of wrongful, injurious or anti-social conduct made punishable under other special laws like Army Act, Air Force Act, and so on.
The Law Commission in its 42nd report observed that 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 crime. However, in brief some of these special laws which are dealing treason, sedition and other kindred offences against the security and integrity, may be mentioned as under
(i) The Foreign Recruitment Act, 1874.
(ii) The Indian Criminal Law Amendment Act, 1908.
(iii) The Official Secrets Act, 1923.
(iv) The Criminal Law Amendment Act, 1938.
(v) The Criminal Law Amendment Act, 1961.
(vi) The Unlawful Activities (Prevention) Act, 1967; and so on
7.03. It is clear that treason, sedition and cognate offences which may be classified as offences against the security of the state, are dealt within codes of other countries 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 it appears that the strengthening, consolidation and revision of some of the provisions of this important branch of criminal law would be necessary.
However, in the Amendment Bill only two changes are proposed, namely, insertion of a new section 123A and substitution of section 124A and changing the nature of sentence to rigorous imprisonment under sections 122 and 123. Having regard to the importance of the Penal provisions in this regard, we would also examine the question whether any changes are necessary in theses existing provisions, namely, sections 121 and 121A.
7.04. Section 121 prescribes the 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. Neither 42nd report nor I.P.C. (Amendment) Bill, 1978 has suggested any change.
Therefore, this section does not require any change. 7.05. Section 121A provides as under:-
"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 take in pursuance thereof."
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, 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 the conspiracy is infructuous, they will be punishable with half the longest term of imprisonment provided for the offence, that ten years, which may be sufficient.
7.06. On reading, it looks difficult that 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 the last century, the extra-territorial application of the Code was limited during colonial days, to offences committed by Government servants in the territory of any Indian State. By referring to conspiracies entered into "without British India", the section was apparently intended to cover British subjects and not foreigners.
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. It was also considered by the Law Commission in its 42nd report that the words "within or without India" are of no practical consequence and should be omitted.
7.07. In the 42nd report, it was also recommended 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 as an offence of conspiracy. 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 was accordingly proposed by then Law Commission 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."
The Law Commission observed in its 42nd report that 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.
7.08. Pertaining to the second kind of conspiracy (para 05 above), in the 42nd report it was recommended that section 121A may be amended but in the I.P.C. (Amendment) Bill, 1978, the same was not accepted. Also in the proposed amendment, the idea to overawe by criminal force as an offence was extended to the Parliament or the State's.
On the other hand, the original text of section 121A (which was inserted by the Act 3 of 1951) provides general and wide scope to cover all types of conspiracy for the offence mentioned in section 121 of the Code, Needless to mention that the words, "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 " are sufficient to cover the words, "Parliament or the State Legislature" as the legislative is an essential part-wing of every democratic government. About the said recommendations nothing has been mentioned in the Amendment Bill.
7.09. Having earnestly considered in the aforesaid manner these provisions, namely, section 121A, we are of the view that no changes are necessary and we endorse that the absence of any major policy changes in the Bill is of no consequence. Likewise, having examined sections 121, 122, 123 and also having noted that the Law Commission in its 42nd Report did not suggest any amendment, and these sections will remain as they are except that the words "imprisonment of either description" being substituted with "rigorous imprisonment".
7.10. The Law Commission in its 42nd Report recommended for inserting a new section 123A and the same finds place in the Amendment Bill. The New section 123A as recommended by the Law Commission reads 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."
The above recommendation for inserting a new section 123A got a place in the I.P.C. (Amendment) Bill. But in the Bill, an Explanation was added in the proposed section. The said Explanation may be read as under:-
"Explanation.-In this section
(i) "Armed forces of India" means the military, naval and air forces, and includes any other armed forces of the Union;
(ii) "enemy" includes any person or country committing external aggression against the Union, or any person belonging to such country."