An in-depth Analysis of Section 121 IPC

Chapter VI of the Indian Penal Code, 1860 (IPC) relates to “offenses against the State”. Sections 121-130 lays down what amounts to causing an offense against the State. Section 121 is titled “Waging, or attempting to wage war, or abetting waging of war, against the Government of India”. The section prescribes the act of waging war against the State.
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IPC 121 clarifies that anyone contravening this Section shall attract death sentence or life imprisonment. The offender must also pay a fine. Furthermore, a Court of Session can try this cognizable, non-bailable, and non-compoundable offence.

Elements of IPC, Section 121

Therefore, the elements of this Section are:

• Waging war, or
• Attempting to wage war, or
• Abetting the attempt to wage war,
• Against the Government of India.
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Hence the guilty person must be directly or indirectly connected with an act of war or aggression against India’s sovereignty. Furthermore, every nation considers itself a sovereign and takes stringent measures against any perpetrator trying to impede such sovereignty.

Furthermore, Section 121A talks about a “conspiracy to commit offenses punishable by Section 121”. It declares that nobody, whether within or outside India, should conspire to commit any offense mentioned in Section 121, IPC. An individual should also not collude to overawe the Central Government or State Government using criminal force.

Likewise, a Court of Session can try this non-bailable and non-compoundable offence. The punishment can be either imprisonment for life or imprisonment for 10 years, along with fine.

Section 121 IPC Explained

The 26/11 attacks drove the country into shock. It was one of the most aggressive acts of terrorism in the history of independent India. The mad massacre claimed many lives, including that of the gunmen, save just one. The trial and subsequent conviction of the lone surviving gunman allowed the Judiciary to delve deep inside Section 121 IPC.

There can be none better than the Judiciary to explain a legal concept and offer clarity in understanding it. Let us, therefore, try to understand how the Division Bench explained the Section regarding waging war against the State.

In the instant case, the appellant’s heinous acts of terrorism had earned him five death penalties and life sentences each. One of the major charges against him was “waging, and abetting the waging of war against the Government of India”. The Bench upheld his conviction, the President denied his plea for mercy and he was eventually hanged for his crimes.

The advocate for the appellant had sought to rescue him from the charge of “waging war”. This was since the High Court had considered it to be the principal reason for awarding the death sentence. The advocate pleaded that an act of “waging war” should challenge the sovereign authority of the Government of India. He submitted that the actions of the surviving gunman could not amount to “waging war”.
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Government of India

Naturally, the Apex Court observed that the Section uses the term “Government of India” instead of “Republic of India”. So, what does “Government of India” entail? Consequently, the Court decided to find out.

It said that in a narrower sense, this term involved simply the executive wing of the State. It comprises the administrative bureaucracy controlling the powers and executive functions of the State. Various Governments, help discharge these duties and functions by serving the State. However, the considered view of the Bench concluded that the meaning could not be this narrow.

They opined that the term “Government of India” implies:

• India as a State,
• The Juristic embodiment of India’s sovereignty, and
• The collective will and consent of the people of India

Hence, “Government of India” signifies the notion of sovereignty which lies enshrined in Public International Law. It must indicate the State or the people of the country who make the country a sovereign. Sovereignty manifests through the will and expression of the citizens of this democracy who ultimately elects their Government.
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Waging War

The bench referred to the landmark case of State v. Navjot Sandhu, (2005) 11 SCC 600. In it, the court had discussed the issue of “waging war” against the Government of India. In it, the Hon’ble Justice had referred to a report of the Indian Law Commission.

The Report said, “wages war against the Government” implied a person arraying himself in defiance of the Government. This act would involve “the like manner and…like means as a foreign enemy would adopt”. Furthermore, the Bench also presumed that the IPC draftsmen intended that the definition of an “ambiguous” term be “superfluous”.

Ultimately, the Bench said that “like manner and by like means as a foreign enemy” was important for waging war. The Supreme Court revealed the difficulties in differentiating among acts of war, terrorism, and violent acts due to their commonalities.  Riots, insurrections, unlawful assemblies, levying of war and terrorist acts—all strive to disrupt the “tranquillity of a civilised society”.

The Division Bench delivering the 26/11 verdict agreed that “terrorist acts can manifest themselves into acts of war”. In the instant case,

• India and Indians were the primary focus for the terrorist attack.
• Foreign nationals had orchestrated this attack.
• They killed people just because they were Indians or foreigners staying in India. They killed foreigners on Indian soil to embarrass India.

Moreover, the terrorists aimed to hit India, its financial center (Mumbai), and give birth to communal tension. Thus, the actions of the terrorists were “in the like manner and by like means as a foreign enemy”. The Division Bench felt that the appellant’s actions were “rarest of rare”, and thus deserved the death penalty
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In a Nutshell

The Hon’ble Bench analysed various judgments for determining the scope of Section 121 in State v. Navjot Sandhu. It said that the expression “waging war” did not include all acts of disruption of peace and public order. The case established the following highlights:

• “War” as contemplated in Section 121 IPC does not mean the conventional warfare between nations or sovereign authorities. It is not necessary for the Government to formally declare a “war” situation, and no legal provision mandates such declaration.
• The intention or purpose behind the act of “waging war”, i.e., Mens Rea, is vital for establishing the motivating factor. Striking at the sovereign authority of the Ruler or the Government using force and arms, while disregarding government troops and security personnel deployed for maintaining public tranquillity, is an act of waging war.
• The number of force and the way they array or arm themselves are immaterial. A modest number of people carrying powerful weaponry can cause more devastation than a large number carrying ordinary firearms.
• Additionally, the act need not comply with the “pomp and pageantry” of battle. A “stealthy operation to overwhelm” the security personnel of the Government and attain a commanding position amounts to “waging war”.
• The objective behind the offence need not be to substitute some authority for the Government of India. Moreover, it is immaterial whether the war has a political colour or a representative character.
• The probability of success of such an act will not dictate its criminality.

In conclusion, it is immaterial who is waging war against the State. Section 121, IPC uses the term “whoever” to include national as well as foreign individuals and institutions. Therefore, anyone waging, or attempting to wage war, or abetting waging of war against the Republic will attract stringent punishment.