Offences Against the State

This article is written by Anupriya Mukherjee of Adamas University, an intern under Legal Vidhiya

ABSTRACT

The word “offence” itself brings an image or an idea of causing damage to one’s physical, emotional, or social being, and our senses in general. Since time immemorial, all states have had the same right to self-preservation as their fundamental counterparts, that is, their citizens, and they have taken measures to protect and preserve themselves. Treason, sedition, and rebellion are a few criminal actions that are intended to undermine the state’s very existence. Anyone who violates the law must be punished severely in order to set an example for other members of society and to maintain the peace, order, and law in the community. [1]

It is crucial for the spirit of our Constitution and the Preamble that offenders who commit treason against the State in any way whatsoever, get punished. The spirit of law, otherwise, gets crushed under the archaic boulders of injustice. It is also important to punish individuals responsible for any type of crime against the state in order to uphold the supremacy of law and the sovereignty of the state. According to the Indian Penal Code, there are a few categories that define when a crime qualifies as one against the state. Warfare, the acquisition of weapons, assassinating a president or governor, and sedition are the main ones. These are a few of the major groups that make up offences against the state. [2]

BACKGROUND:

Waging War: The act of waging war is the use of violence to try and achieve any goal of a public character. When a group of individuals band together against the State in an effort to enact violence and use force to obtain any goal of a communal nature, a war of this kind is triggered. The intention and not the murder or the use of force is what counts in determining whether a crime is against the state.[3]

When a rising has a general purpose, affects the entire community, and directly targets a government agency, that is when it is waging war against the state. However, when a rising has a general purpose, affects the entire community, and directly targets a government agency, that is when it is waging war against the state.  Warfare against the Government of India is covered by Sections 121 to 123 of the Code. Here, the term “Government of India” has a far broader meaning, denoting the Indian State, which derives its right and power of government from the will and consent of its citizens. In other words, this phrase means that while though the State obtains its authority from public international law, the territory’s citizens actually hold the rights to that authority, and the representative government is responsible for exercising them. The accused must have:

• fought in a war,
• tried to start one, or
• encouraged someone else to do so.

For instance, the appellant and other conspirators committed the primary charge of waging war against the Government of India in the case of the Mumbai Terror Attack. The attack was carried out by foreigners and was directed towards Indians and India. This attack’s main objectives were to escalate racial tensions, have an impact on the nation’s finances, and, most crucially, to press India to cede Kashmir. As a result, the appellant was properly found guilty of declaring war on the Government of India under Sections 121, 121A, and 122 of the Code. In the instance of declaring war, motive and purpose are thought to be the most crucial elements to consider when looking into the motivations behind such action against the government. Murder and physical violence are meaningless in such a battle.

Whoever: The term “whoever” is used in a more general sense and does not simply refer to those who have a duty of loyalty to the existing Government. Even the Indian Supreme Court is unable to decide whether or not foreign nationals who enter Indian territory with the intent to interfere with government operations and destabilise society should be considered criminals.[4]

Sedition and Abetting War: Sedition is covered by IPC Section 124A. This crime denotes that the purpose was to incite hatred, contempt, or discontent (including disloyalty and enmity) towards the Indian government.[5]

A unique form of offence is aiding and abetting war. Such instigation’s primary goal should unavoidably involve going to war.[6]

For instance, the appellant was thought to have assisted the crime in Navjot Sandhu’s case since they were both involved in the criminal conspiracy. He actively participated in several actions carried out in the course of the plot. The appellant was therefore found guilty under Section 121 of the IPC as a result of the High Court’s decision being affirmed.

Conspiracy to Wage War: The two sorts of conspiracies covered in this section are:

• Conspiring to commit a crime that is prohibited by Section 121 of the Code, either inside or outside of India.
• Preparing a plan to intimidate the government by using illegal force or just a display of force against it.

In Arbind v. State, the Kerela High Court gave its interpretation of the phrase “conspiring to overawe government by means of criminal force or the show of criminal force.” The court noted that the term “overawe” in this case refers to more than only the incitement of anxiety, worry, or terror. The court granted the appeal and ordered the appellants to be freed. However, because the declarant gave her testimony while she was on her deathbed in secret, the court was unable to adduce it as evidence. The court further reasoned that a fit state of mind and the two levels of awareness are separate concepts that cannot be used interchangeably. Even if one is cognizant, they may not be in a sound mental condition. Because the lower courts failed to recognise this distinction, the Apex Court upheld the appellant’s pleas and cleared them of the accusations brought against them.[7]

It means that a precarious situation will be created where the government will have to decide whether to submit to pressure or put itself or the general public in grave peril. As a result, the claim that the government can be overthrown with force does not imply that a plot by criminals to overthrow the government has been made.

Ten years in prison or life in prison, as well as a fine, are possible penalties under this clause. These sanctions may be imposed by the federal or state governments.

Preparation to Wage War: Section 122 of the IPC elaborates the following as the key components:

• Troops, weapons, and ammunition assembled.
• For such a collection, there must be a desire to start a war or the preparation of a conflict.
• The collecting process must involve the accused.
• The Indian government was the target of a war.

Either life in jail or ten years behind bars along with a fine is the penalty under this section. If print material and other items are discovered in the accused’s room, for instance, they are not deemed offensive or upsetting. As a result, this Section cannot result in the accused’s conviction.

Concealment of Design to Wage War: Section 123 expands as:

• That there is a plan in place to attack the Indian administration.
• It is necessary for the accused to be aware of such a plan.
• That design had to be kept a secret by the accused.
• It must have been the intention of the hiding to aid the war-making plan.

In the case State v. Navjot Sandhu, it was determined that the defendant knew about the plot and preparations made by terrorists to assault Parliament House. A violation of section 123 of the Indian Penal Code would result from his unlawful failure to inform the police or the magistrate of the conspirators’ plan, which is an act of waging war.

War Against Asiatic Power: Warfare against any Asian Power that is allied with the Government of India is covered by Section 125. The starting of hostilities with any Asiatic power is forbidden by this Section. In this case, the accused should have initiated or sought to initiate hostilities with the State, or should have assisted in the hostilities. Following are this Section’s key components:

• Along with an international influence, there must be an Asian State.
• It should not be India as such a State.
• A State like this ought to be working hand in hand or in tandem with the Indian government.
• According to this Section, the penalty is either a fine or, in some circumstances, a sentence of life in prison or seven years behind bars.

Depredation in Friendly Countries: Depredation on territories of Power at Peace with the Government of India is the topic of this article. Attacking is referred to as depredation. The following are the section’s essentials:

• The alleged offender ought to have carried out or intended to carry out depredation.
• The act must be carried out on the soil of any nation that is at peace or in an alliance with the Indian Government.
• The penalty under this Section is a seven-year jail sentence and a fine. Any property that was used to perpetrate the crime or that was obtained as a result of it may also be forfeited.

In contrast to Section 125, which pertains to a Power that may or may not be Asiatic, Section 126 is more expansive because it deals with the waging of war against Asiatic Powers in alliance with the Government of India.

Receiving Property Taken by War or Depredation: It deals with “Receiving property taken by war or depredation as mentioned in Sections 125 and 126.” Following are this Section’s key components:

• It is necessary that the defendant acquired any assets.
• By engaging in hostilities with a Power at peace with the Government of India or by plundering its lands, the accused must have obtained the property.
• Seven years of incarceration and a fine constitute the penalty under this section. Also necessary is forfeiture of the property.

Assault on High Officials: Assaults against senior authorities, such as the president, governor, and others, are covered in Section 124 of the IPC. The goal of such an assault should be to persuade or coerce the top officials to use or abstain from using their legitimate authority. This Section’s components are:

• The accused should have assaulted the President or the Governor of any State, or,
• Should have unlawfully restrained the President or the Governor, or
• Should have attempted to assault the President or the Governor, or
• Should have attempted to intimidate the President or the Governor with the intent to coerce them into exercising or refraining from exercising their authority through threats or acts of force.

It is a crime to commit such offences against the president of India or a state governor. Under this provision of the IPC, anybody who assaults, attempts to assault, unlawfully restrains, attempts to restrain, uses criminal force, or displays criminal force by the accuser is penalised.

Escape of A State Prisoner: A individual whose detention is required to protect India’s security from both internal unrest and external aggression is referred to as a “State prisoner.”

The IPC’s Section 128 addresses “public servants voluntarily permitting prisoners of State or prisoners of war to escape.” This Section’s components are:

• Those who are imprisoned or accused must be employees of the government or prisoners of war, respectively.
• Such a prisoner ought to be under the accuser’s care; or
• Such a prisoner ought to have been allowed to flee on their own by the accused servant.

In the event that a prisoner escapes while being transported, this Section is not applicable. This section’s offence is an exacerbated version of Section 225-A’s offence. However, under Section 225-A, a prisoner may be an ordinary criminal. In both situations, the public employee is penalised if he willingly permits the prisoner to escape. Either life in jail or ten years’ probation plus a fee constitutes punishment under this section.

A public servant who negligently allows a prisoner of state or a prisoner of war to escape is a violation of Section 129 of the IPC. This Section contains the following elements:

• Obviously, at the time of committing the offense, the accused had to be a public employee.
• A person who is accused should have custody of such a prisoner.
• It is necessary to rescue or free such a prisoner.
• A rescue or escape like that ought to be the result of the accused’s carelessness.

An offence under Section 223 is worsened by the offence under this Section. If a public employee unintentionally allows a prisoner to escape, they will both be penalised; nevertheless, under Section 223, the prisoner may be a regular criminal. Simple imprisonment for a maximum of three years is the penalty under this section, combined with a fine.

The IPC’s Section 130 deals with “any person who aids or assists the escape of, rescues, or harbours a prisoner of State or a prisoner of war to escape.” Comparatively speaking, this Section is longer than Sections 128 and 129. This Section’s components are as follows:

• Intentionally helping or attempting to help save, harbour, or hide such a prisoner.
• Such an inmate needs to be held under legal custody.
• The action or inaction must be carried out deliberately or with intent.

According to this Section, the penalty is either a fine or a term of imprisonment up to ten years.

Sedition: Regarding sedition, see Section 124A. According to this Section, anyone who by:

• Written or spoken words,
• signs,
• visible representations, or,
• any other form of communication;

Bringing or even attempting to convey hatred or igniting discontent (including feelings of animosity and disloyalty) against the Indian government is punished in some circumstances, a sentence of life in prison and a fine is possible, as well as up to three years behind bars and a fine.

• Words, Sign, Visible Representation or Otherwise: There are several ways to spread seditious ideas, including through spoken or written words, visual cues, and signs. Seditious acts can be committed using any medium, including music, books, performances (including puppet shows and movies), sculptures, photos, cartoons, and paintings.

Whether or not the seditious items are being used by the actual authors has no bearing on whether or not sedition is occurring. In this situation, both the author and the editor, publisher, or printer are accountable. Anyone who created it or utilised it to stir up discontent is therefore guilty of sedition. If the accused claims that he did not compose the piece, then it is up to him to provide evidence to support that claim. Additionally, under the terms of this Section, the accused is not guilty if he is not aware of the contents of the published article or paper because there was no purpose.

Sedition can take many other forms, such as signs and visual displays, and is not always expressed through spoken or written words. A woodcut or any other type of engraving, for example, can serve as proof.

• Brings or Attempts to Bring into Hatred or Contempt: The phrase “brings or attempts to bring into hatred or contempt” tries to either not interfere with or to meddle less with the freedom of speech.

For instance, public press writers are prohibited from engaging in unethical or dishonest motivations when they write. It is not deemed seditious when a writer publishes a piece of writing with a cool, unsentimental, and dispassionate point of view and describes his minor emotions that may or may not make a man think. A piece of writing is deemed seditious if it goes beyond the call of duty and involves improper, corrupt, or dishonest motives.

• Excite Disaffection: Disloyalty and any other hostile emotions are included under the umbrella word “disaffection.” Sedition requires a public act of dissatisfaction in order to be considered such. To put it another way, the state’s citizens must be made to feel dissatisfied. According to this Section, the disaffection can be sparked in a number of ways, including:
• Poem,
•  Allegory,
• Discussions about history or philosophy, drama, etc.
• It takes a publication for the offence to qualify as sedition. The publication may take any form, including posts, and may be in any media.

CONCLUSION:

The term “Government Established by Law” refers to the current political order, which consists of the ruling power and its proxies. In other words, it alludes to those who are legally permitted to oversee the Executive Government in any location throughout India. Both the Central Government and the State Government are included.

For an offence to fall under this clause, it must be committed against the Indian government.

Sedition does not apply under the following circumstances:

• Speech encouraging a strike against mill or business owners rather than the government.
• Preventing recruitment.
• Attempting to get people to not pay land taxes.

Attacks on the established Government or the Sovereign are thus considered acts of sedition. An assault on the administration of justice is not covered under Section 124A.

Expressing disapproval is all that is meant when the word “expressing disapprobation” is used. Someone may like a man, but that does not mean that person agrees with all of that man’s thoughts or deeds. People have a wide range of alternatives in Explanation 2 and 3 to voice their disapproval of the government’s policies in their remarks. It is done to get them changed by legal procedures or other government activities. All of this is possible without inciting animosity or stirring up discontent with the government. The breadth and strict definitions of explanations 2 and 3 are constrained. Thus, the goal of these justifications is to safeguard legitimate criticism of public policies and their supporting institutions in order to advance them. The free press has the freedom to criticise such actions in order to hasten policy reforms in a free society. When compared to prior times or before independence, the freedom granted to the media today is significantly greater.

For instance, criticising a law under consideration or a ministry policy in a newspaper article is not considered sedition; but, criticising the ministry would be considered sedition. According to the ruling in the Bal Gangadhar Tilak[8] case, an offence has been committed if reading an article or speech causes the reader or the audience to feel hatred, contempt, or disaffection towards the government. According to Article 19(1)(a) of the Indian Constitution, the provisions of this Section do not constitute a constitutional violation of the right to freedom of speech and expression.

The first time the constitutionality of the sedition law was challenged was in Ram Nandan v. State of U.P.[9] The court stated that any reasonable limitations on the right to freedom of speech and expression may be imposed in the interests of maintaining public order, allowing for the maintenance of public order, or preventing disorder or the threat of disorder. Any limitation that promotes public order or prevents the appearance of public disturbance is in the public’s best interest. One cannot claim that a restriction is in the best interests of the public order if it has no bearing on the preservation of the public peace, i.e., if it does not contribute to the preservation of the public peace or prevent a threat to it. The Section was deemed to be against the interests of the general public by the Allahabad High Court and to have a significant impact on free speech. This Section was deemed to be in violation of the Constitution as a result.

Kedar Nath Das v. State of Bihar[10], however, resulted in its overturning. In this instance, it was decided that this Section would only apply to conduct that involved the purpose to disturb law and order or the incitement of violence. So, the Supreme Court ruled that this Section was unconstitutional.

The right to freedom of speech and expression is a fundamental component of a democracy, and India is the largest democracy in the world. Sedition is not considered to be the simple expression of disagreement with government policies. As a result, there have been numerous reform ideas over the years.

The regulation and upkeep of public order are greatly influenced by offences against the state. The citizens of the State have a right to question the actions of the Government, but they should not abuse this right to hurt others or the Government. It is a crime to wage war against India and against authority. The law also provides protection for senior government figures who may be attacked, including the President and the governors of all the states. The most serious distinction is that sedition is regarded as one of the most serious crimes against the State that can be prosecuted. Therefore, it is clear that in order to improve the State, the State must impose restrictions on the freedom of the nation’s citizens.

Offenses against the state are covered in a number of provisions of the Indian Penal Code. These portions of the law governing offences against the state are essential for establishing and upholding the rule of law. While it is true that citizens of the state have the right to oppose the laws or policies of the government, they should not abuse this freedom to hurt others or the government.[11]

It is a crime to wage war against the Indian government. In the event of an assault, the law also provides protection for high-ranking governmental officials, such as the president of the nation or the governor of any given state. Most importantly, sedition is regarded as one of the most serious crimes against the state that can be prosecuted.

Therefore, it is reasonable to assume that the State must impose restrictions on citizens’ freedoms in order to protect the nation and prevent violence against it.

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[1] Ibid,  available  at  https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%2021-15.11.16_2015.pdf, last seen on 23/4/2023

[2] See https://legalserviceindia.com/legal/article-8341-offences-against-the-state.html#:~:text=In%20the%20category%20of%20offences,President%20or%20Governor%20and%20Sedition., last seen on 23/4/2023

[3] https://blog.ipleaders.in/offences-against-the-state-all-you-need-to-know-about-it/, last seen on 23/4/2023

[4] https://blog.ipleaders.in/offences-against-the-state-all-you-need-to-know-about-it/#Whoever, last seen on 23/4/2023

[5] https://blog.ipleaders.in/offences-against-the-state-all-you-need-to-know-about-it/#Sedition_and_Abetting_War, last seen on 23/4/2023

[6] https://blog.ipleaders.in/offences-against-the-state-all-you-need-to-know-about-it/#Waging_War-2, last seen on 23/4/2023

[7] See, available at https://www.lawyersclubindia.com/judiciary/-dv-landmark-judgments-1-arvind-singh-vs-the-state-of-bihar-2001-domestic-violence-allegations-can-not-be-sustained-based-on-a-dying-declaration-made-without-the-presence-of-the-concerned-doctors-5821.asp#:~:text=Webinar-,DV%20Landmark%20Judgments%20%231%3A%20Arvind%20Singh%20Vs%20The%20State%20Of,Presence%20Of%20The%20Concerned%20Doctors&text=Court%20%3A,ble%20Supreme%20Court%20of%20India., last seen on 23/4/2023

[8] Ibid, available at https://www.scobserver.in/journal/sedition-in-india-a-timeline/#:~:text=1897%20and%201908&text=In%201897%2C%20Tilak%20was%20convicted,the%20IPC%20to%20include%20disloyalty., last seen on 24/4/2023

[9] https://www.briefcased.in/case-briefs/criminal-law/ram-nandan-vs-state/#:~:text=The%20court%20observed%20that%20any,or%20an%20apprehension%20of%20disorder., last seen on 24/4/2023

[10] See https://indiankanoon.org/doc/111867/, last seen on 23/4/2023

[11] See https://legalserviceindia.com/legal/article-8341-offences-against-the-state.html#:~:text=In%20the%20category%20of%20offences,President%20or%20Governor%20and%20Sedition., last seen on 24/4/2023