CENTRAL UNIVERSITY OF SOUTH

BIHAR

..A PROJECT ON
Waging war against government of India
& Sedition

Submitted to….. submitted by….

Dr. P.K Mishra Gautam Kumar ranjan

Prof. of law of crimes B.A.LL.B. (H)
School Of Law and Governance 3rd Semester
Roll.No.- CUSB1613125018
 ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude to my teacher (P.K
Mishra) who gave me the golden opportunity to do this wonderful project on
the topic (WAGING WAR AGAINST GOVERNMENT OF INDIA &
SEDITION), which also helped me in doing a lot of Research and i came to
know about so many new things I am really thankful to them.
Secondly i would also like to thank my parents and friends who helped me a
lot in finalizing this project within the limited time frame.
 CHAPTERISATION
1.Waging war against Government of India.

(a). statuory provision of sec.121 of I.P.C

(b). comment on s.121

(c). Ingredients of section.121

(d). Conspiracy to Wage War

(e). Preparation To Wage War

(f). Concealment of Design to Wage War

2. SEDITION

(a). History of sedition in I.P.C

(b). Introduction

(c). Ingredients

(d). Conclusion

3. A Report on Offences against the State (under sections 121, 121A,

122, 123 & 124-A IPC) during 2015
 Waging war against Government of India and Sedition
I deal this topic in two parts:- (a). Wagging war against the government of India, (b). Sedition

PART. A .

Waging war against Government of India

Waging war against Government of India is come under the offence against the state.

Section 121. Waging, or attempting to wage war, or abetting waging of war, against the
Government of India.—whoever, wages war against the Government of India, or attempts
to wage such war, or abets the waging of such war, shall be punished with death,
or imprisonment for life and shall also be liable to fine.

Illustration.

A joins an insurrection against the Government of India. A has committed the offence defined in
this section1.

COMMMENT

A regarding of this section reveals that the section deals with three aspects of wagging war
against the government of India:- (1)Abetment, (2). Attempt, (3). the actual war. A unique
feature of this section is that it places at par all the three stages of wagging war. Whether it is the
attempt to commit the offence or the abetment of the offence or whether the offence has actually
been committed, the section imposes the same punishment2.

Ingredients of section.121:-

(1). The accused waged or attempted to wage or abetted the wagging of war; and

1
The Indian Penal Code,1860 , India, available at, https://indiankanoon.org/doc/786750/

2 Dr. K. I. Vibhute, P S A Pillai’s Criminal Law [Incorporating, The Criminal Law (Amendment) Act, 2013], 332
(Lexis Nexis, Gurgaon, 12th edition 2014).
(2). that such war was against the Government of India.

Waging war.- Any person taking part in organized armed attack on the constitutional authorities
and the object of attack being supervision of government and the establishment of another in its
place would be guilty of the offence of wagging war. This offence may be committed by citizens
or foreigners3.

In maganlal Radhakrishan v. Emperor4, the following characteristics of this offence were pointed
out :-

(1). No specific number of persons is necessary to constitute this offence;

(2). The number of person concerned and the manner in which they are equipped in immaterial;4

(3). The true criterion is “ Quo Animo”, did the gathering assemble?

(4). The object of the gathering must be to attain by force and violence an object of a general
public nature thereby striking directly against the king’s authority.

(5). There is no distinction between principal and accessory and everyone who takes part in the
unlawful act incurs the same gulit.

Waging war means waging war in the manner usual in war. In order to support a conviction
under this section it would not be enough to show that the persons charged have connived to
obtain possession of an armory and have when called upon to surrender it, used the rifles and
ammunition so obtained against the state troops. It must also be shown that the seizure of the
armory was part and parcel of planned operation and their intention in resisting the troops of the
state. A deliberate and organised attack upon the government forces and government institutions
amounts to waging a war.

Abets the waging of war:- abetment of waging war is made a special offence. It is not essential
that as a result of the abetment the war should in fact be waged. Although the general rule
relating to abetment has made a distinction for purpose of punishment between the abetment
which has succeeded and the abetment which has failed, this section makes no distinction

3
Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 312 (Central Law
Publication, Allahabad, 19th edition).
4
A.I.R 1946 Nag. 126.
between the two. The reason behind treating an abetment which has succeeded and abetment
which has not succeeded on par, is because the crime is treated as the highest offence against the
state. It has also do with the peculiarity of the offence. If the offence of waging war against the
state is successfully committed, the criminal is secure from punishment because the government
itself is subverted.

In state (N. C.T. OF Delhi) v. Navjot Sandhu5, terrorists entered parliament house with
sophisticated arms and powerful explosive when parliamentary business was being conducted
therein. The Supreme Court held that the undoubted objective and determination of deceased
terrorists was to impinge on sovereign authority of nation and its Government. It amounts to
waging war or attempting to wage war against government of india. It was also held that to
constitute offence of waging war under this section 121 I.P.C., the intention and purpose of the
warlike operations directed against the governmental machinery is an important criterion.

In the instant case the target chosen was the parliament- a symbol of sovereignty of the Indian
republic comprised of people representative. The target, the obvious objective which has political
and public dimensions and the modus operandi, adopted by the hard core ‘fidayeens’ are all
demonstrartive of intention of launching a war against the government of india. In view of the
above the supreme court held that the criminal acts done by deceased terrorists in order to
capture the parliament house amount to waging or attempting to wage war. To constitute offence
of waging war, military or other forces need not be directed target of attack. Thus imposition of
punishment of death sentence on accused who abetted waging of war, was held to be proper6.

Conspiracy to Wage War

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.

5
2005 Cri L. J.3950 (S.C.).
6
Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 312-314 (Central
Law Publication, Allahabad, 19th edition).
Explanation.—To constitute a conspiracy under this section, it is not necessary that any act or
illegal omission shall make place in pursuance thereof7.

Section 121A thus deals with the two kinds of conspiracies, namely, conspiracy to wage war (or
to attempt or abet) against the government of India, and conspiracy to overawe, by means of
criminal force or the show of criminal force8.

Ingrdients:- The section deals with two kinds of conspiracies : -

1. Conspiring within or without India to commit any of the offence punishable by s.121.
2. Conspiring to overawe by means of criminal force, or the show of criminal force the
central Government or any State Government.

The words ‘ conspiracies to overawe, by means of criminal force, or the show of criminal force,
the central Government, or any State Government’ in this section clearly embrace not merely a
conspiracy to raise a general insurrection, but also a conspiracy to overawe the central
Government or any State Government by the organization of a serious riot or a large and
tumultuous unlawful assembly.

The expression “Conspiring to overawe by means of criminal force, or the show of criminal
force” was intercepted by the Kerala High Court in Arbind v. State. The court observed that the
word “overawe” means something more than the mere creation of apprehension, alarm or fear. It
connotes the creation of situation in which the government feels itself compelled to choose
between yielding to force or exposing itself or members of the public to a very serious danger.
Therefore, the slogan that the government can be changed through force., does not mean that a
criminal conspiracy has taken place to change the government through force9.

7
https://indiankanoon.org/doc/1949191/

8
Dr. K. I. Vibhute, P S A Pillai’s Criminal Law [Incorporating, The Criminal Law (Amendment) Act, 2013], 334
(Lexis Nexis, Gurgaon, 12th edition 2014).

9
Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 315(Central Law
Publication, Allahabad, 19th edition).
Preparation To Wage War

122. Collecting arms, etc., with intention of waging war against the Government of India.—
Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention
of either waging or being prepared to wage war against the Government of India, shall be
punished with imprisonment for life or imprisonment of either description for a term not
exceeding ten years, and shall also be liable to fine10.

Ingredients ;- the following are the ingredients of this section :-

1. Collecting men, arms or ammunition etc.,

2. The intention of the above act should be to wage war against the government of India.
This section aims putting down with heavy hand any preparation to wage war against the
govt. of india.11

Concealment of Design to Wage War

123. Concealing with intent to facilitate design to wage war.—Whoever by any act, or by
any illegal omission, conceals the existence of a design to wage war against the
Government of India, intending by such concealment to facilitate, or knowing it to be
likely that such concealment will facilitate, the waging of such war, shall be punished
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.12
Ingredients.- the following are essential of this section.-
1. The existence of a design to wage war against the Govt. of India.
2. Such a design must be within the knowledge of the accused.
3. The accused must have concealed that design.
4. The concealment must have been intended to facilitate the design of wage war.

It was held in State (N.C.T. Delhi) v. Novjot Sandhu, that the accused had knowledge of
conspiracy and plan of terrorists to attack parliament house. His illegal omission to

10
. https://indiankanoon.org/doc/1661760/

11
Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 315(Central Law
Publication, Allahabad, 19th edition).

12
https://indiankanoon.org/doc/1999903/
 apprise police or magistrate of the design of conspirators which is an act of wagging war
would make him liable for offence under this section 123 I.P.C.13

PART-B

SEDITION
124A. Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or
attempts to excite disaffection towards, the Government established by law In India, shall be
punished with imprisonment for life, to which fine may be added, or with imprisonment which
may extend to three years, to which fine may be added, or with fine.

Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity.

Explanation 2.—Comments expressing disapprobation of the measures of the Government with a

view to obtain their alteration by lawful means, without exciting or attempting to excite hatred,
contempt or disaffection, do not constitute an offence under this section.

Explanation 3.—Comments expressing disapprobation of the administrative or other action of

the Government without exciting or attempting to excite hatred, contempt or disaffection, do not
constitute an offence under this section.14

History of sedition in I.P.C

Section 124A of I.P.C. deals with law of sedition in India. It was originally s. 113 of Macaulay’s
draft penal code of 1837. It was proposed to be included in the penal code. However, for
unaccountable reasons, it was omitted from the penal code when the I.P.C. was enacted in 1860.
However, the need for such provision was felt in 1870 when s. 124A was placed in the statue
book by the Indian Penal Code(Amendment) Act 1870 (Act XXVII of 1870). It was, however,
later on, replaced, with minor changes, by s.124A of the Indian Penal Code (Amendement) Act

13
. Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 316(Central Law
Publication, Allahabad, 19th edition).

14
. https://indiankanoon.org/doc/1641007/
1898 (Act IV of 1898). After some inconsequential changes made by the Adoption of laws
Orders issued in 1937, 1948, and 1950 and by the part B states (Law) Act 1951, the present
s.124A.15

INTRODUCTION
If a person uses either spoken or written words calculated to create in the minds of the person to
whom they are addressed a disposition not to obey the lawful authority of the government, or to
subvert or resist the authority, if and when the occasion should arise and if he does so with the
intention of creating such disposition, among his hearers or readers, they will be guilty under this
section. In Queen v. Balgangadhar Tilak,16 Strachey, j., agreed with the above ruling, holding
that a man must not make or try to make others feel anmity of any kind towards the government.
Amount and intensity of disaffection is absolutely immaterial except perhaps in dealing with the
question of punishment.

In case of Emperor v. Sada Shiv Narayan17, the privy council held that the language of section
124-A or of the rules under which the case was tried not justify the statement of law as made by
the C.J. The expression “ excite did disaffection” did not include “ excite disorder”. The dicta in
Tilak and Bensant’s case was approved.

After coming into force of the constitution the validity of this section was considered by the
supreme court in Ramesh Thapart18 and Brij Bhusan’s19 cases. As a result of these two decisions
constitution first Amendment act was passed in 1951. Thereafter, in Kedar Nath Singh’s,20 case
the validity of this section was again questioned on the ground of the provisions of this section
being in violiation of freedom of speech and expression. The plea was negatives by the court and
the section was held to be constitutional. The explanation to the section makes it clear that
criticism of public measures or comment on government action, however strongly word, within
reasonable limits and consistent with the fundamental right of freedom of speech and expression
is not affected.

15
. Dr. K. I. Vibhute, P S A Pillai’s Criminal Law [Incorporating, The Criminal Law (Amendment) Act, 2013], 337-
338(Lexis Nexis, Gurgaon, 12th edition 2014).
16
. I.L.R 22 Bom. 112.
17
. A.I.R 1943 P.C. 82.
18
A.I.R 1950 S.C. 124.
19
A.I.R 1950 S.C. 129.
20
A.I.R 1962 S.C. 955.
Ingredients.- The following are the two essentials of sedition:

(1). Bringing or attempting to bring into hatred or contempt or exciting or attempting to excite
disaffection towards the government of india.

(2). Such act or attempt may be done (1)by words, either spoken or written, or (ii) signs, or (iii)
by visible representation.

Exciting disaffection.- to constitute an offence under this section it is not necessary that one
should excite or attempt to excite mutiny or rebellion or any kind of actual disturbance, it would
be sufficient that one tries to excite feeling of hatred or contempt towards the government. In a
case the federal court has opined that the essence of the offence of the sedition is incitement to
violence; mere abusive words are not sufficient and that “public disorder or the reasonable
anticipation or likelihood of public disorder is the gist of offence.

The essence of the offence under this section consist in the intention with which the language is
used.

Attempt.- a person may be charged not only with exciting but also with attempting to excite and
both successful and unsuccessful attempts to excite disaffection were placed on the same footing.
So even if a person had only tried to excite the feeling he could be convicted. In Surendra
Narayan Adicharya,21 it was held that sending through the post of a packets containing a copy of
a manuscript of a seditious publication with a covering letter requesting the addressee to circulate
it to others, when the same was intercepted by another persons and never reached the addressee,
constitutes an attempt to commit an offence under this section.

Government established by law.- the expression “ Government established by law in India”

includes the executive power in action and does not mean merely the constitutional framework.
It includes the state Government as well as the Central Government. Government does not mean
the person or persons for the time being. It means the person or persons collectively, in
succession, who are authorized to administer government for time being. A general criticism of
certain officers cannot be deemed to be a criticism of government established by law in india.

21
(1911) 39 Cal. 522.
Various form of excitement.- disaffection may be excited in a number of ways. Writing of any
kinds, poem, drama, story, novel, or essays may be used for the purpose of exciting disaffection.
But seditious writing, if it remains in hands of author or unpublished does not constitute this
offence because publication of some kinds is necessary.

Explanation 1.- explanation 1 makes it clear that the word “disaffection” includes disloyalty and
all fellings of enmity. Disaffection means anything which is “ contrary to affection”. It is very
much nearer to ‘hatred or dislike’. “ feelings of enmity” includes ill-will, hostility, feelings of
dislike amounting to enmity, and anything of a similar class or character which can be
summarized under the expression ‘ disloyalty’ and ‘ feelings of enmity’.22

Explanation 2 and 3:- the word ‘ disapprobation’ means disapproval. Explanations 2 &3 provides
that as long as a person does not excite or attempt to excite hatred, contempt or disaffection, then
expressing disapproval of the acts of the government in order to bring about change by lawful
means or criticizing or disapproving the administration, does not constitute an offence.

The purpose of the explanation is to give adequate protection from penal action to freedom of
speech and expression. It is for the purpose of giving greater latitude to the media and others to
openly criticize the government and ministers.

Conclusion
It is thus understood that there will always be ambiguity as to whether sedition law in India is
violative of Art 19(2) of our constitution. The case of Kedar nath Singh has given this debate a
new dimension following which there have been a number of cases highlighting and dealing with
the same problem thereby providing some parameters and clarifying the aspects of ‘what
amounts to waging a war against a state’. It is only when the words written, spoken etc., which
have the pernicious tendency or intention of creating public disorder or disturbance of law and
order that steps into prevent such activities in the interest of the society at large. So construed the
law dealing with waging war against the state in my opinion, strikes the right balance between

22
. Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law (Amendment) Act, 2013], 317-21(Central
Law Publication, Allahabad, 19th edition).
individual fundamental rights and the interest of public order, national interest and national
security.

A Report on Offences against the State (under sections 121, 121A,

122, 123 & 124-A IPC) during 2015

A total of 147 cases of offences against the State (under section 121, 121A, 122, 123 & 124A
IPC) were registered during 2015, showing a decrease of 16.4% over 2014 (76 cases). Majority
of such cases during 2015 were reported in Assam (22 cases) followed by Meghalaya (20 cases),
Bihar (17 cases), Jammu & Kashmir (16 cases) and Odisha (14 cases) during 2015. Out of 147
such cases, 30 cases were registered under sedition (section 124A IPC) during 2015. Bihar and
West Bengal have reported 9 cases and 4 cases of sedition respectively, these two States together
accounted for 43.3% of total sedition cases during 2015. 3 cases each of sedition in Haryana,
Karnataka & Kerala, 2 such cases in Gujarat and 1 case each in Jammu & Kashmir, Maharashtra,
Manipur, Punjab, Rajasthan & Telangana were also registered during 2015. A total of 117 cases
were reported under the offences of waging war or attempting/conspiring to wage war or
collecting arms for this purpose etc. (under section 121, 121A, 122 & 123 of IPC), majority of
such cases were registered in Assam (22 cases) followed by Meghalaya (20 cases) Jammu &
Kashmir (15 cases) and Odisha (14 cases), these four States together accounted for 60.7% of
total such cases in the country during 2015. 238 persons, consisting of 237 male and 1 female,
were arrested under offences against the State (under section 121, 121A, 122, 123 & 124A IPC)
during 2015. Maximum number of persons under these offences were arrested in West Bengal
(53 persons) followed by Bihar (50 persons) during 2015. A total of 73 male persons were
arrested for the offences of sedition during 2015. Maximum number of arrests under the offence
were reported in Bihar (40 persons) followed by Punjab (10 persons) and Rajasthan (9 persons)
during 2015. A total of 165 persons (consisting of 164 male and 1 female) under the offences of
Crime in India-2015 182 waging war or attempting/conspiring to wage war or collecting arms for
this purpose etc. (under section 121, 121A, 122 & 123 IPC) were arrested during 2015.
Maximum number of arrests under such offences were made in West Bengal (50 persons)
followed by 27 persons arrested each in Assam and Meghalaya during 2015.23

23
. http://ncrb.nic.in/StatPublications/CII/CII2015/chapters/Chapter%2021-15.11.16.pdf
B I B LI OG RAP HY
B O OK S : -
1. Dr. K. I. Vibhute, P S A Pillai’s Criminal Law [Incorporating, The Criminal Law
(Amendment) Act, 2013], (Lexis Nexis, Gurgaon, 12th edition 2014).

2. Prof. S.N. Misra Indian Penal Code [Incorporating, The Criminal Law
(Amendment) Act, 2013], (Central Law Publication, Allahabad, 19th
edition).

W E BS I T E S : -
https://indiankanoon.org
http://ncrb.nic.in/StatPublications/CII/CII2015/chapters/Chapter%2021-
15.11.16.pdf