Waging a War Against the State

The project report aims to study how and under what circumstances the law relating to what amounts to waging a war against the state applies. The IPC in its chapter 6 consists of s121- s130. The project can be broadly divided into three parts. The first part of the study describes section 121 and second part focuses on s121 A of IPC and the third part focuses on the law of sedition.

Introduction

Section 121 deals with 3 aspects viz. Abetment, attempt and actual war. The section is unique in itself as it places all the three aspects at par as regards the punishment. Under the general law a distinction has been made between abetment which has succeeded and abetment which has failed. But as far as the legislature is concerned it treats both in the same manner because the crime is treated of highest offence against the state.

The expression waging a war means waging a war in the manner usual in war. [1] A deliberate and organised attack upon the government forces and government institutions amounts to waging a war. [2] The first reform came in the year of 1870 where it was made illegal for conspiring against the nation itself. This was introduced in the form of section 121A and 121B of section 4 of Chapter IV. This was the first reform in the subject. It is an offence to conspire against the Government of India by means of criminal force, or the show criminal force. Under this section, it is not necessary that any act or illegal omission should take place in pursuance thereof, whereas under section107 abetment includes the engaging with one or more persons in any conspiracy for doing of a thing, if an act or illegal omission takes place in pursuance of that of a conspiracy, and in order to the doing of that thing. In other words except in respect of the offences particularized in sec.121A conspiracy per se is not an offence. The position changed in 1913 when the Criminal Law Amendment Act came into force. It passes an emergency piece of legislation which gave an extended effect to the law of conspiracy of India. This added two new sections that are sec.120A and 120B of the IPC. It was added in Chapter V which widened the scope of the conspiracy.

Quoting Jublia Mallah v. Emperor’ AIR 1944 Pat 58 (B):

“Gentlemen, it may be useful to say a few words on the distinction between levying war against the King and committing a riot. The distinction seems to consist in this, although they may often run very nearly into each other. Where the rising or tumult is merely to accomplish some private purpose, interesting only to those engaged in it, and not resisting or calling in question the King’s authority or prerogative then the tumult, however numerous or outrageous the mob may be, is held only to be a riot. For example, suppose a mob to rise, and even by force of arms to break into a particular prison and rescue certain persons therein confined, or oblige the Magistrates to set them at liberty or to lower the price of provisions in a certain market, or to tear down certain enclosures, which they conceive to encroach on the town’s commons. All such acts, though severely punishable, and though they may be resisted by force, do not amount to treason. Nothing is pointed against either the person or authority of the King….

But, gentlemen, wherever the rising or insurrection has for its object a purpose, not confined to the peculiar views and interests of persons concerned in it, but common to the whole community, and striking directly the King’s authority or that of Parliament, then it assumes the character of treason. For example, if mobs; were to rise in different parts of the country to throw open all in closures and to resist the execution of the law regarding enclosures wheresoever attempted, to pull down all prisons or Courts of Justice, to resist all revenue officers in the collecting of all or any of the taxes; in short, all risings to accomplish a general purpose, or to hinder a general measure, which by law can only be authorised or prohibited by authority of the King or Parliament, amount to levying of war against the King and have always been tried and punished of treason. It is, therefore, not the numbers concerned, nor the force employed by the people rising in arms, but the object which they have in view that determines the character of the crime, and will make it either riot or treason, according as that object is of a public and general, or private and local nature.

The then Legislative member of the Govt. of India was Sir James Fitzjames Stephen who later became one of the Judges of the H. C. in England & was perhaps the greatest authority of his generation on criminal law. In his Digest of the Criminal Law Edn. 8, p. 57, one of the meanings given to the expression “to levy war” is “attacking in the manner usual in war the King himself or his military forces, acting as such by his orders, in the execution of their duty.”

Conspiracy to wage a war

S 121A: Conspiracy to commit offences punishable by section 121:

Whoever within or without 49[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 make place in pursuance thereof.]

This section basically deals with two kinds of conspiracies, namely, conspiracy to wage war (or attempt 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, an illegal act by illegal means. The word ‘overawe’ connotes the creation of a situation, in which the government is compelled to choose yielding to force or exposing the government or the members of the public to a very serious danger. [3] When any body of men, whether factory operatives or clerks or policemen go on strike, their object clearly is to coerce their employers into yielding to their demands. Until the early part of the 19th century combinations of this kind in England were criminal. Subsequently, it ceased to be a crime for the great majority of workers to resort to a strike although certain acts done by strikers were & are still punishable as crimes. Policemen, however, & certain other classes of employees are forbidden by law to go on strike. Each one of the applts. who went on strike committed an offence & when each of them agreed with the others to do so, they jointly committed another & more serious offence, namely, the offence of conspiracy. In Vertue v Lord Clive, (1769) 4 Burr. 2472: (98 E. R. 296). Certain military officers in the army of the East India Company simultaneously tendered their resignations of their commissions on the ground that they had not received as much in the way of allowances as they believed they were entitled to. Lord Clivo, in order to meet the very dangerous situation which was thus created, had the officers placed under arrest, & when they returned to England, some of them instituted actions to recover damages for assault & false imprisonment. These actions were dismissed, & in dismissing them, one of the Judges observed that “this combination was a criminal act.” This decision, however, while it shows that the applts., were guilty of conspiracy, is of no assistance to us in deciding the real point of difficulty arising in the appeal, which is whether the conspiracy was a conspiracy of such a kind as to attract the operation of Section 121A, Penal Code. The marginal note to Section 121A is “conspiracy to commit offences punishable by Section 121.” This was strictly accurate description of the section which it was proposed to enact in the bill originally introduced in the Legislative Council. It is quite clear that the conspiracies aimed at in the bill were conspiracies either to wage war against the King in the manner in which it is usual to wage war or conspiracies to raise an insurrection with the object of subverting the constitution. The section, however, as finally enacted, brought within its scope other conspiracies also, & the marginal note is not a strictly accurate description of what is contained in it. The words “conspires to overawe by means of criminal force or the show of criminal force the Central Govt. or any Provincial Govt.” clearly embrace not merely a conspiracy to raise a general insurrection, but also a conspiracy to overawe the Central Govt. or any Provincial Govt. by the organisation of a serious riot or a large & tumultuous unlawful assembly. Possibly, in modifying the section as it stood in the bill, the Legislative Council had in mind the case of Lord George Gordon (21 State Trials 486). Lord George Gordon put himself at the head of a large mob which proceeded to the Houses of Parliament in order to protest against the enactment of certain legislation. After having made its protest, the mob dispersed, but certain members of it proceeded to perpetrate outrages in different parts of the city of London. Lord George Gordon was tried on a charge of a high treason, & was acquitted, the reason apparently being that, while he had intended to make a demonstration outside the Houses of Parliament, he had not been a party to the disorders which resulted from it. Section 121A, occurs in a chapter of the Penal Code which is headed “offences against the State” whereas the offence of conspiracy is contained in the preceding chapter, chap. VA. which is headed “criminal conspiracy.” The Legislature in enacting Section 121A clearly had in mind the English Treason Felony Act of 1848 & it did not aim at conspiracies other than conspiracies which had a political object, that is, conspiracies to overthrow the existing constitution or conspiracies to prevent the enactment of legislation which was considered to be obnoxious or to compel the resignation of a member or members of the Govt. who had become unpopular. As the section stands in certain circumstances persons who organise a strike among police men or certain other public or municipal employees might not render themselves liable to prosecution under it. Clearly, however, persons do not commit this crime unless it was part & parcel of their plans to overawe the Central or the Provincial Govt. by criminal ‘force or show of criminal force. The word “overawe ” does not appear anywhere else in the Penal Code except in this section & in another section in the same chapter (Section 124).

Under the Common law of England a conspiracy to commit an offence could be punished more severely than could the commission of the offence itself, and in any case, in England a person who incites constables to mutiny is liable to a sentence of two years’ imprisonment. In other words, in order to support a conviction on such a charge, it is not enough to show that the persons charged have contrived to obtain possession of an armoury & have, when called upon to surrender it, used the rifles & ammunition so obtained against the King’s troops. It must also be shown that the seizure of the armoury was part & parcel of a planned operation & that their intention in resisting the troops of the King was to overwhelm & defeat these troops & then to go on & crush any further opposition with which they might meet until either the leaders of the movement succeeded in obtaining possession of the machinery of Govt. or until those in possession of it yielded to the demands of their loaders.

Sedition

It is generally accepted that it is seditious to question any of the sensitive issues. What needs to be appreciated is what is meant by ‘to question’.

SEDITION as a subject was hardly talked about until the 1970s and 80s and then receded into the background until recently, when it again started receiving a considerable measure of attention. According to some writers on English Law, the first definite instance found of a law relating to quasi sedition offences was a provision in the First Statute of Westminster passed in the year 1275 which provided a penalty for the publishing of false news or tales “whereby discord may grow between the King and his people” or “the great men of the realm”. However, control of the affairs of the nation gradually devolved upon elected representatives of the people – Parliamentary Government by means of a Ministry nominally the King’s servant but really representing the majority party in the House of Commons. Thereafter, laws of sedition came in the 18th century to constitute “any written censure upon public men for their conduct as such or upon the law or upon the institutions of the country and to take care of public disturbances which had certain tendencies”.

The laws of sedition can be found in the Indian Penal Code under s 124A. Today the law of sedition in India has assumed controversial importance largely on account of change in the body of politic and also because of the constitutional provision of freedom of speech and expression guaranteed as a fundamental right. The law of sedition was also embodied in some other statutes1. However, the general statement of law was similar in all the provisions and could be gathered from s 124A, IPC. In the original draft of IPC 1860 this section was omitted. It was inserted by an amendment in 1870 which in turn was replaced by the amendment of 1898 . Together with these changes s124A stands as follows:

“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 the imprisonment which may extend to 3 years, to which fine may be added, or with fine may be added, or with fine.

Explanation 1: The expression ʺdisaffectionʺ 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.

This species of offence against the State was not an invention of the British. Government in India, but has been known in England for centuries. Every State, whatever its form of Government, has to be armed with the power to punish those who, by their conduct, jeopardise the safety and stability of the State, or disseminate such feelings of disloyalty as have the tendency to lead to the disruption of the State or to public disorder. In England, the crime has thus been described by Stephen in his Commentaries on the Laws of England, 21st Edition, volume IV, at pages 141-142, in these words.

The difference between the old and the new law is that in the former the offence consisted in exciting or attempting to excite the feelings of “disaffection” but in the latter, ‘bringing or attempting to bring into hatred or contempt the government of India is also punishable. The common law on the other hand in this subject was too wide and severe in the initial stages. In England the growth of liberty of speech and expression, particularly with regard to criticism of government, was gradual. Consequently, the courts began to introduce guiding principles so as to govern the judges in deciding when an intention to excite ill-will and hostility is seditious and when it is not. Fitzerland, J in R v. Sullivan, which was later on approved in R v. Burns and Others observed: “sedition in itself a comprehensive term and embraces all those practices which are directed against the state.

Elements of sedition

Stephen’s, definition of seditious intention was accepted as accurate by the Criminal Code Commissioners and by Cave J., in his direction t o the jury in E. v. Burns. [4] In the case of written words this is seditious libel.

Article 114 in Stephen’s Digest of the Criminal Law reads 103 –

A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of, His Majesty, his heirs or successors, or the government and constitution of the United Kingdom, as by law established , or either House of Parliament, or the administration of justice , or t o excite His Majesty’s subjects to attempt otherwise than by lawful means, the alteration of any matter in Church or State by law established , [or to incite any person to commit any crime in disturbance of the peace,] or to raise discontent or disaffection amongst His Majesty’s subjects , or to promote feelings of ill – will and hostility between different classes of such subjects . An intention t o show that His Majesty has been misled or mistaken in his measures, or t o point out errors or defects in the government or constitution as by law established, with a view to their reformation, or to excite His Majesty’s subjects t o attempt by lawful means the alteration of any matter in Church or State by law established , or to point out , in order t o secure their removal, matters which are producing, or have a tendency to produce, feelings of hatred and ill – will between classes of His Majesty’s subjects , is not a seditious intention .

Role of Supreme Court and freedom of press

In one of the earliest judgments, pre-censorship of the press was held to be unconstitutional Ramesh Thapar vs. State of Madras, [5] Brij Bhushan vs. State of Delhi. [6] Similarly, there has been lot of differences of opinions regarding indecency and immorality as to what constitutes indecent literature or other expressions through media. Similarly, the law of sedition under section 124A of the I.P.C. was also subjected to dispute in Kedarnath vs. State of Bihar, [7] when Supreme Court held the validity of this provision. Under the Freedom of Speech and Expression, there is no separate guarantee of freedom of the press and the same is included in the freedom of expression, which is conferred on all citizens Virender vs. State of Punjab [8] and Sakal Papers vs. Union of India [9] . It has also been by this judgment that freedom of the press under the Indian Constitution is not higher than the freedom of an ordinary citizen. It is subjected to same limitation as are provided by Article 19(2). It has been held by the Court in the above cases that press is not immune from paying taxes, from following labor laws, regulating services of the employees, law of contempt of the Court, law of defamation. It has been held by the Supreme Court that right of speech and expression includes right to acquire and import ideas and information about the matters of common interests in the case of Hamdard Dawakhana vs. Union of India and to answer any criticism leveled against one’s views through any media. This freedom also includes right to impart and receive information through telecasting. It also includes publication of advertisement and commercial speech. It also covers right to hold telephonic conversation in privacy [PUCL vs. Union of India] [10] . It is thus quite clear that right to acquire and get information is a fundamental right under the Indian Constitution. In a recent case, the Supreme Court held that considering the wide spread illiteracy of the voters and at the same time there over-all culture and character they need to be well informed about the candidate contesting election as M.P. or MLA so that they are in a position to decide independently to cast their votes in favour of more efficient candidates. The right to get information in a democracy is recognized in all the countries. In one of the early decision in the case of State of UP vs. Raj Narain and Others [11] , the Supreme Court of India considered a question whether privilege can be claimed by Government of UP under section 123 of Evidence Act in respect of Blue Book summoned from the Government of UP and certain documents summoned from SP, Police, Raibareilly, UP. The court observed that – “In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing.” In another recent case the Court dealt with citizen’s rights to freedom of information and observed as under: – “In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which, having been elected by them, seek to formulate sound policies of governance aimed at their welfare. Democracy expects openness and openness is concomitant of a free society and the sunlight is a best disinfectant.”

Kedar Nath Case and the aftermath

Section 124A of the Indian Penal Code which makes sedition as an offence constitutionally valid. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental right. There is a conflict on the question of the ambit of s. 124A between decision of the federal Court and of the Privy Council. The Federal Court has held that words, deeds or writings constituted an offence under s. 124A only when they had the intention or tendency to disturb public tranquillity. to create public disturbance or to promote disorder, whilst the Privy Council has taken the view that it was not an essential ingredient of the offence of sedition under s. 124A that the words etc, should be intended to or be likely to incite public disorder. Either view can be taken and supported on good reasons. If the view taken by the Federal Court was accepted s.124A would be use constitutional but if the view of the Privy Council was accepted it would be unconstitutional. It is well settled that if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. Keeping in mind the reasons for the introduction of s. 124A and the history of sedition the section must be so construed as to limit its application to acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence. Each one of the constituent elements of the offence of making, publishing or circulating statements conducing to public mischief, punishable under s. 505 of the Indian Penal Code, had reference to, and a direct effect on, the security of the State or public order. Hence the provisions of s. 505 were clearly saved by Art. 19(2). A speech may disturb public order or it may not, but both are made punishable under Section 124A. The section hits speeches of both varieties permissible speeches and impermissible speeches. The explanation to section 124A does not affect the interpretation of the main section. In a democratic set up a citizen is entitled to criticise the Government with a view to change it.

Two questions arose in the case, namely (i) does s. 124A enact a law which is in the interest of public order and (ii) does this section impose reasonable restrictions in the interest of public order. The decision in I. L. R. (1958) 2 All. 84 which has declared s.124A to be ultra vires takes the correct law.

Interpretation by Courts of words of statutes to a particular set of facts has been changing with the change in the social and political structure of society and the opinion of its reasonable members. Section 124A is in a chapter which deals with offences against the State. Therefore, it is not a case of libel against any officer but of an offence against the State. Though the section imposes restrictions on the fundamental freedom of speech and expression, the restrictions are in the interest of public order and are within the ambit of permissible legislative interference with the fundamental right. There is a conflict on the question of the ambit of s. 124A between decision of the federal Court and of the Privy Council. The Federal Court has held that words, deeds or writings constituted an offence under s. 124A only when they had the intention or tendency to disturb public tranquillity. to create public disturbance or to promote disorder, whilst the Privy Council has taken the view that it was not an essential ingredient of the offence of sedition under s.124A that the words etc, should be intended to or be likely to incite public disorder. Either view can be taken and supported on good reasons. If the view taken by the Federal Court was accepted s. 124A would be use constitutional but if the view of the Privy Council was accepted it would be unconstitutional. It is well settled that if certain provisions of law construed in one way would make them consistent with the constitution, and another interpretation would render them unconstitutional, the Court would lean in favour of the former construction. Keeping in mind the reasons for the introduction of s.124A and the history of sedition the section must be so construed as to limit its application to acts involving intention or tendency to create disorder, or disturbance of law and order; or incitement to violence.

Each one of the constituent elements of the offence of making, publishing or circulating statements conducing to public mischief, punishable under s. 505 of the Indian Penal Code, had reference to, and a direct effect on, the security of the State or public order. Hence the provisions of s. 505 were clearly saved by Art.19 (2). The main question in controversy was whether ss.124A and 505 of the Indian Penal Code have become void in view of the provisions of Art. 19(1) (a) of the Constitution.

Explanation-Such a disapprobation of the measures of the Government as is compatible with a disposition to render obedience to the lawful authority of the Government and to support the lawful authority of the Government against unlawful attempts to subvert or resist that authority, is not disaffection. Therefore, the making of comments on the measures of the Government, with the intention of exciting only this species of disapprobation, is not an offence within this clause.”

The first case in Indian that arose under the section is what is known as the Bangobasi case (Queen-Empress v. Jagendra Chunder Bose (1)) which was tried by a Jury before Sir Comer Petheram, C J. while charging the jury, the learned Chief Justice explained the law to the jury in these terms:

“Disaffection means a feeling contrary to affection, in other words, dislike or hatred. Disapprobation means simply disapproval. It is quite possible to disapprove of a man’s sentiments or action and yet to like him. The meaning of the two words is so distinct that I feel it hardly necessary to tell you that the contention of Mr. Jackson cannot be sustained. If a person uses either spoken or written words calculated to create in the minds of the persons to whom they are addressed a disposition not to obey the lawful authority of the Government, or to subvert or resist that authority, if and when occasion should arise, and if he does so with the intention of creating such a disposition in his bearers or readers, he will be guilty of the offence of attempting to excite disaffection within the meaning of the section though no disturbance is brought about by his words or any feeling of disaffection, in fact, produced by them. It is sufficient for the purposes of the section that the words used are calculated to excite feelings of ill will against the Government and to hold it up to the hatred and contempt of the people, and that they were used with the intention to create such feeling.”The next case is the celebrated case of Queen-Empress v. Balqanqaddhar Tilak (1) which came before the Bombay High Court. The case was tried by a jury before Strachey, J. The learned judge, in the course of his charge to the jury, explain the law to them in these terms:

“The offence as defined by the first clause is exciting or attempting to excite feelings of disaffection to the Government. What are “feelings of disaffection”? I agree with Sir Comer Petheram in the Bangobasi case that disaffection means simply the absence of affection. It means hatred, enmity dislike, hostility, contempt and every form of ill-will to the Government. “Disloyalty” is perhaps the best general term, comprehending every possible form of bad feeling to the Government. That is what the law means by the disaffection which a man must not excite or attempt to excite; he must not make or try to make others feel enmity of any kind towards the Government. The seditious conduct may be by words, by deed, or by writing. Five specific heads of sedition may be enumerated according to the object of the accused. This may be either

1. To excite disaffection against the King, Government, or Constitution, or against Parliament or the administration of justice;

2. To promote, by unlawful means, any alteration in Church or State;

3. To incite a disturbance of the peace;

4. To raise discontent among the King’s subjects;

5. To excite class hatred.

It must be observed that criticism on political matters is not of itself seditious.

The test is the manner in which it is made. Candid and honest discussion is permitted. The law only interferes when the discussion passes the bounds of fair criticism. More especially will this be the case when the natural consequence of the prisoner’s conduct is to promote public disorder.” This statement of the law is derived mainly from the address to the Jury by Fitzerald, J., in the case of Reg v. Alexander Martin Sullivan (1). In the course of his address to the Jury the learned Judge observed as follows:

“Sedition is a crime against society,