Waging war

Waging War

War has existed in society since humans originated, what started with a small quarrel has in history led to the slaughter of millions of people. Pope Francis commented on the violence in Syria saying “war begets war, violence begets violence.”  The nature of man has required law to adapt and provide rules for wars as well. Chapter VI of the Indian Penal Code deals with offences against the State. One of the major offences that have been dealt with in this Chapter is Waging War.

Sections 121, 121A, 122, 123 deals with everything related to the criminal aspects that involve waging war against the Government of India. Sections 125,126 & 127 deals with waging war against power.

Waging War against the Government of India

Section 121: Waging, or attempting to wage war, or abetting waging of war against the Government of India.

Every state has the right to self-preservation and subject to those laws there are safeguards set in place to preserve and protect the state. In monarchical forms of government, the right of preservation of the State was exalted and so the violence against the state was considered a lese majestic-lese majestic human, an offence against the power, crown dignity and majesty of the invisible God. In common law, such a crime was considered of the highest order and termed ‘treason’.  The Indian Penal Code has incorporated the common law concept of preservation of the state and has provided for the most severe punishment of death sentence, or life imprisonment in the cases of waging war. The essential ingredients of this section are:

1. Accused must wage war, or

2. Attempt to wage war, or

3. Abet the waging of such war,

4. against the Government of India

A simple understanding of this section reveals that it deals with abetment & actual war. A unique feature of this section is that it places at par all the three stages of waging war.  Whether there is the attempt to commit the offence or the abetment of the offence or whether the offence has been committed, the section imposes the same punishment.

The term ‘whoever’ in this section applies to everyone, whether an Indian citizen or a foreigner. Foreigners are liable on the principle of de jure gentium, allegiance and protection are reciprocally due from subject and sovereign, this thus admits the right of foreigners to enter the country only upon the tacit condition that they rely upon us from protection and are therefore subject to our laws.

The reason behind treating an abetment which has succeeded and an abetment which has not succeeded on par, is because the crime is treated as the highest of offences against the state. In other offences, the threat to the offender is after the completion of the offence. For instance, a murderer is in a more precarious condition after he has killed his victim; or a thief after he has taken away the object, but an offence under this section is totally out of danger if he successfully wages war against the government and dislodges the government.

Intention to wage war against the government is the most essential ingredient under this section, it is not sufficient to show that the accused have attempted to obtain arms, ammunition and other, it is necessary to show that the accused intended to use it to wage war against the government of India.

Section 121A Conspiracy to commit offences punishable in section 121

This section was inserted in the Penal Code by the Indian Penal Code (Amendment) Act 27 of 1870. This section deals with two kinds of conspiracies, conspiracy to wage war against the government of India and conspiracy to overawe, by means of criminal force or the show of criminal force.

The offence of conspiracy is complete as soon as two or more persons agree to do or cause to be done what is punishable under section 121. This section is based on the English law of Treason Felony Act of 1948, it is punishable with imprisonment for life, or imprisonment of either description which may extend to 10 year and fine.

Section 122: Collected arms, etc., with intention of waging war against the Government of India

This section makes the very preparation to wage war against the government of India punishable owing to the gravity of the offence in contemplation to overawe by force the government. The purpose of this section to nip in the bud any attempt to wage war. However, from the preparation made, it is necessary also to establish the intention of the accused, unless such intention is proved, the offence under this section cannot be established. The punishment may extend upto imprisonment for life or imprisonment of either description for a term not exceeding ten years and fine.

Section 123: Concealing with intent to facilitate design to wage war

In order to prove the offence under this section, the following essentials have to be established

  • The existence of a design to wage war against the government of India;
  • That the accused has knowledge of such design
  • That he concealed the same
  • That by doing so, he intended to facilitate the waging of such war or had knowledge that it was likely to facilitate the waging war

Section 39 clause (1) of the Code of Criminal Procedure, 1973 casts a duty on every person, aware of the commission of, or of the intention of any person to commit, any offence specified in this section, to give information of the design of offence to the nearest Magistrate or police officer of such intention or commission as the case may be.

Waging War against Power

Section 125: Waging war against any Asiatic Power in alliance with the Government of India

This section has been introduced to protect the friendly relations with Asiatic Powers. This is to prevent Indian citizens from going into the territory of other countries and then coming back to India for their security. However, the word ‘power’, suffixing the word ‘Asiatic’, is defined neither in the IPC nor in the General Clauses Act, 1897. The dictionary meaning of this is ‘ state with international influence’

Section 126: Committing depredation on territories of Power at peace with the Government of India

This section makes the commission of depredation which means plunder, which is pillaging by mane or animals, on the territory of states as peace with the government of India. This applies to any foreign country at peace with India.

Section 127: Receiving property taken by war or depredation mentioned in section 125 & 126

This section punishes a person receiving any property obtained in war or depredation. In order to establish an offence under this section, it is necessary to prove that the person receiving the property was aware that it was property received in the commission of an offence.

In conclusion, defence is the main role of the government, and thus the need for having laws that regulate wars and criminalize offences that cause wars are very important. In a world that is constantly changing, it is important to protect and preserve the in order to maintain peace.

“The views of the authors are personal

Frequently Asked Questions

What does waging war mean?

Waging war is an action with the expectation of receiving or giving compensation for actions. Wage can be monetary, type of reward or punishment including types of actions and sentencing.

What are offences against the state?

Some criminal activities 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’

What does depredation mean?

Depredate derives primarily from the Latin verb predate, meaning “to plunder,” an ancestor to our words predator and prey. Dating to the 17th century, the word most commonly appears in contexts relating to nature and ecology, where it is often used to describe the methodical, almost automatic destruction of life.

References

  1. The Indian Penal Code, K.D. Gaur, fourth Edition, Universal Law Publishing Co. p,195-210
  2. Cecil Turner.J. (2013), Kenny’s Outllines of Criminal Law, Cambridge: Cambridge University Press
  3. Textbook of Criminal Law, Glanville Williams, fourth Edition, Sweet & Maxwell South Asian Edition
  4. Criminal Law, PSA Pillai’s, 11th Edition KI Vibhute, Lexis Nexis
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Srishti is a law student at CMR School of Legal Studies, Bangalore. In her time at law school, she has found herself lost in subjects like Jurisprudence and Criminology. She loves a good debate and people who challenge her to become better. She is a Political Science graduate from St. Xavier’s College, Mumbai. Her resolutions involve reading 30 books in 2020 and spreading a message of joy, kindness and love. She wants to pursue her LLM and aid the violated and vulnerable in their quest for equality & justice.