Lecture 9

 The following are classifications of the offences against

state:-
 1. Waging, or attempting or conspiring to wage, or
collecting men and ammunition to wage war against the
Government of India. [Sections 121, 121A, 122, 123]
 2. Assaulting President, or Governor of a State with intent
to compel or restrain the exercise of any lawful power.
[Section 124]
 3. Sedition. [Section 124A]
 4. War against a power at place with the Government of
India (Section 125) or committing depredations on the
territories of such power. [Sections 125-126]
 5. Permitting or aiding or negligently suffering the escape
of, or rescuing or harbouring a State prisoner. [Sections
128, 129 and 130]
 “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.”
 A joins an insurrection against the
Government of India, A has committed the
offence defined on this section.
 1. Waging war against the Government of India,
or
 2. Attempting to wage war against the
Government of India, or
 3. Abetting the war against the Government of
India.
 On an observation of this section, it is clear that,
the law punishes, a person or group of persons
for waging war means actually beginning a war,
attempting to wage war and abetment to wage
war, at equal footing. So, it can be said that the
offence of waging war is a harsh one.
 Waging war means beginning a war or battle or continuing battle. The
section contemplates that such waging of war must be against the
Government of India.
 The actus reus is the deciding factor in this offence. It is the act of
waging war itself, which is punishable by law. This waging war per se is
prohibited by law. Notably, this section does not require mental element
or mens rea. It does not specify what type of or what degree of mens
and should be present. So, the result of human conduct itself is made
punishable.
 On the other hand, we can say that the words ‘waging war’ themselves
speak that there is an intention to wage war.
 Even, the act of waging war involves the concept of mens rea, and is
manifested by their act.
 But, where the people have assembled and committing riot, and they
does not manifest any sign of waging war, then it cannot be said that
their object was to wage war. So, object or motive of assemblage
becomes relevant here.
 Waging war requires that there should be insurrection or invasion on the
Government of India. This may be by force or violence, and the object of
such force or violence must be of a general nature.
 Attempting is an act just before the actual
commission of the final offence. So, attempt
to wage war may be taken to be any act or
series of act, which constitute, all the
essentials of a waging of war, and its
accomplishment was failed due to some
supervening event or extraneous matter.
Attempting to wage war against the
Government of India, is also, punishable in
the same manner and at the same foot as if
there is commission of the waging war.
 Abetment means any instigation, or any conspiracy or
aiding the waging of war. Abetment of waging war means,
instigating to wage war, or aiding in the actual waging of
war or conspiring to wage-war by engagement.
 Abetment of waging war is created as a special offence and
is also punishable like the principal offence.
 The act of abetment requires just an act of instigation or
stimulation, and it does not depend on the fact whether
there was actual commission of waging war or note, to
make a person liable.
 The sole purpose of this offence is to curb the activities
against the Government, at all stages possible. The reason,
why abetment and attempt also are punishable on the same
foot may be that these are factors which actually aggravate
the potential offenders to commit the offence and even the
social harmony and social anticipation requires such
indication of punishments.
 “Whoever within or without India conspires to
commit any of the offence punishable by
Section 12, or conspires to overawe, by
means of criminal force or the show of
criminal force, the Government of India 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.”
 To constitute a conspiracy under this section,
it is not necessary that any act or illegal
omission shall take place in pursuance
thereof. The section deals with the offence of
conspiring by criminal force or by show of
criminal force, and to prescribe severe
punishment for those who actually conspires
to wage war. Because, the conspirators are
the persons who actually set the motion of
the offence.
 This section provides for two types of
conspiracies:
 1. Conspiring within India or without India to
commit any of the offences punishable under
Section 121.
 2. Conspiring to overawe by means of
criminal force or the show of criminal force,
the Central Government or the State
Government.
 1. The first ingredient, specifically, deals with a conspiration i.e. combination of two
or more persons, either to wage war or attempting to wage war or to abet waging of
war, made within or without India. Actually, this part is already implicit in Section
121, where it says abetment of waging war in which case it also involves clause (2)
of Section 107 and also when read with explanation to Section 121A, it will be more
clear. But, as the intention of the legislature was to create a specific offence of
conspiracy to wage war etc., this section has been created manifestly.
 2. Conspiring to overawe the Government, by means of criminal force or show of
criminal force. Here, it deals with two aspects:-
 (1) Conspiring to overawe the Central or State Government, and
 (2) The means:-
 (a) Criminal force, or
 (b) Show of criminal force. It is the means that distinguishes this section and the
Section 121 and also part I of Section 121A and this part II of Section 121A.
 The word ‘overawe’ means something more than a mere apprehension or alarm or
even fear. This is a situation where the Central Government or State Government
feels that they are forced to use force on the people overawing them or makes them
to expose or the public to expose to a serious danger. The danger may be a danger
for public property, or persons etc.
 In case of Aravindan (1985), it was held that a slogan that Government can be
changed by an armed revolution does not means that there is a conspiracy to
change the Government by criminal force. At best, it means that the petitioner want
to educate the people that by force only the Government could be changed.
 Sedition can be defined as any conduct or
language inciting rebellion against a lawful
government. In India, sedition is defined
through Section 124-A of the IPC, wherein
the law penalizes bringing or attempting to
bring hatred or contempt towards the
government, and inciting or attempting to
incite disaffection towards the government as
established by law. The punishment is severe
and extends from imprisonment for three
years to life to which a fine may be added.
 “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 ‘dissatisfaction’ 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.”
 The provisions of this section are not unconstitutional as being violative
of the Fundamental Right of freedom of speech and expression under
Article 19(1) (a) of the Constitution. It is only when the words have the
tendency or intention of creating public disorder or disturbance of law
and order that the law steps in.
 (1) Bringing or attempting to bring into
hatred, contempt, or exciting or attempting
to excite disaffection toward the Government
of India.
 (2) Such act or attempt may be done
 (i) by words, either spoken or written, or
 (ii) by signs or
 (iii) by visible representation.
 The offence does not consist in exciting or attempting to excite mutiny or rebellion,
or any sort of actual disturbance, great or small, whether any disturbance or
outbreak was caused by the publication of seditious articles is absolutely immaterial.
If the accused intended by the articles to excite rebellion or disturbance, his act
would doubtless fall within other sections of the IPC. If he tried to excite feelings of
hatred or contempt towards the Government, that is sufficient to make him guilty
under this section.
 The essence of the crime of sedition consists in the intention, with which the
language is used. The intention of a speaker, writer or publisher, may be inferred
from the particular speech, article or letter. The intention is gathered from the
articles. If on reading the articles or speeches the reasonable, natural and probable
effect of the articles or speeches on the minds of those who read them, or to whom
they were addressed appears to be that feelings of hatred, contempt or disaffection,
would be excited towards the Government, the offence is committed. Earlier view
was that it is not an essential ingredient of sedition that the act done should be an
act which is intended or is likely to result into public disorder. But this view of the
law no longer seems to be correct, in view of the decision of the Supreme Court in
Kedar Nath’s Case; where it was held that ‘comments however strongly worded
expressing, disapprobation of actions of Government, without exciting those
feelings which generate the inclination to cause public disorder by acts of violence,
would not be penal.
 It is not necessary in order to bring the case
within this section that it should be shown that
the attempt was successful. Attempt does not
imply success. An attempt is intentional
preparatory action which fails in object – which
so fails through circumstances independent of
the person who seeks its accomplishment.
Whoever tries to excite, attempts to excite he is
held to come within this section. Whether the
intention has achieved the result is immaterial. If
the accused tried to excite hatred or contempt,
the fact that he failed to do so will be no
justification for him.
 This expression means ‘ruling authority’ and its
representatives as such, the existing political system as
distinguished from any particular set of administrators. It
means the various Governments constituted by the statutes
relating to the Government of India and denotes the person
or persons authorised by law to administer executive
government in any part of India. It includes the state
government as well as the Central Government of India.
 Government does not mean the person or persons for the
time being. It means the person or persons collectively, in
succession, who are authorised to administer government
for the time being. An attempt to remove from power, the
Ministers in office in any State, or any agitation for the
repeal of an Act of Parliament cannot be seditious if no
unlawful means were employed.
 Such act, attempt etc. may be done by words, either spoken
or written or by signs or by visible representation.
 Not only the writer of seditious articles but whoever uses in any
way words or printed matter for the purpose of exciting feelings
of disaffection to the Government is liable under the section,
whether he is the actual author or not.
 For everything that appears in his paper, the editor, printer, or
publisher is as much responsible as if he had written the article
himself. Whoever the composer might be, whosoever wrote or
caused it to be written, the person who used it for purposes of
exciting disaffection is guilty of sedition.
 Disaffection may be excited in a thousand different ways. A
poem, an allegory, a drama, a philosophical or historical
discussion, may be used for the purpose of exciting disaffection.
Seditious writing, while it remains in the hands of the author
unpublished, will not make him liable. Publication of some kind
is necessary.
 Sending of seditious matter by post addressed to a private
individual not by name but by designation as the representative
of a large body of students amounts to publication if it is opened
by anybody. Sedition does not necessarily consist of written
matter, it may be evidenced by a wood-cut or engraving of any
kind.
 Explanations 2 and 3 – Both these explanations have a
strictly defined and limited scope. They have no application
unless the article in question criticises “the measure of
government” or “administrative or other action of the
Government” without exciting or attempting to excite
hatred, contempt, or disaffection. The object of the
Explanations is to protect bonafide criticism of public
measures and institutions with a view to their
improvement, and to remedying of grievances and abuses.
Changes in policy and changes in measures are liable to
criticism, and to criticise and urge objections to them is a
special right of a fur press in a fur country. Every liberty is
given to all men to express their opinions, so long as they
do not misuse or abuse that power to the injury of others,
including among injuries to others, injury to the State. It is
not sedition merely to criticise Government however
bitterly or forcibly that may be done, or to such its
overthrow by constitutional means in order that another
Government, equally constitutional, may be substituted in
its place in a constitutional way.
 This means simply disapproval. It is quite
possible to disapprove of a man’s sentiments
or actions and yet to like him. It does not
amount to sedition.

 Liability for copies from other papers:

 The law does not excuse the publication in
newspapers or writings which are themselves
seditious libels, merely because they are
copied from foreign newspapers as items of
news.
 Liability for letters of correspondents
 The editor of a newspaper is liable for
unsigned seditious letters appearing in his
paper.

 Publication of seditious exhibits

 Republication of a seditious article used as an
exhibit in a case of sedition is not justifiable.