Introduction
Criminal law is a body that defines the acts which are illegal and can affect the individual, property, society. Crime threatens and harms public welfare and safety. Moreover, criminal law is different from civil law as the latter emphasizes more on providing resolution rather than punishment.
Stages in the Commission of Crime
Whenever a crime happens and that too intentionally, there is a full-fledged process or stages behind it. In case of every crime, firstly there is an intention to commit it, Secondly, preparation to commit it, Thirdly, attempt to commit it and lastly the accomplishment.
- Intention – Firstly, there is an intention to commit it.
- Preparation – Secondly, preparation to commit it.
- Attempt – Thirdly, attempt to commit it.
- Accomplishment – Lastly, the accomplishment.
Crimes as Offences Against the State
All crimes are treated as offences against the state, or government, insofar as these acts/actions disturb the public tranquility, national integration and public order. But there are some criminal activities that are directed against the existence of the state itself viz. treason, sedition and rebellion.
Offences Under Bhartiya Nyaya Sanhita (BNS)
Thus, cases reported under sections 147, 148, 149, 150, 151, 152, 153, 154, 155, 156, 157 and 158 of Bhartiya Nyaya Sanhita (BNS) have been categorized as ‘Offences Against the State’. As these offences are detrimental to state security and it disturb tranquility in the society and prejudicial to national integration.1
| Category | Relevant Sections (BNS) | Nature of Impact |
|---|---|---|
| Offences Against the State | 147–158 | Detrimental to state security; disturb public tranquility; prejudicial to national integration |
Offences Against The State
Since time immemorial, there have been offences committed against the state and in correspondence to this, there have been laws that have been enacted to safeguard and preserve the State. These can be in the nature of waging war, sedition and many more. The state has outlined what composes as an offence which is against the sovereignty and integrity of the state. Chapter VII of the Bhartiya Nyaya Sanhita (BNS) from sections 147-158 deals with offences against the State. States have enacted laws to protect themselves and safeguard their interests on the presumption that every citizen owes an allegiance to the State and has to abide by its sovereignty.
Classification Of Offences Under Chapter VII
The offences mentioned in Chapter VII can be broadly classified in four categories owing to their nature and gravity.
- Waging War (against the Government of India and any power)
- Assault on High Officials
- Escape of a State Prisoner
- Sedition
Waging War
Protecting citizens from external attacks is the primary responsibility of every country, especially in the case of war, protecting the country becomes a top priority. In the form of monarchial government, the right to preserve the country is elevated to a sacred right, so violence against the country is considered an affront to the power, kingship, dignity and majesty of the country. When the throne is in the sky, the invisible God. The treason law is protected and upheld, and provides for the most severe death penalty for such acts. The Indian Penal Code incorporates the concept of common law to protect the country and provides for severe penalties for such crimes, including the death penalty, life imprisonment and fines.
Sections 147 To 150 Of The Code
Section 147 to Section 150 of the Code deals with waging war against the Government of India. Here, the phrase ‘Government of India’ is used in a much wider sense, that is, to imply the Indian State which derives the right and power of authority from the will and consent of its people. In other words, this expression signifies that although the State derives the power of authority from Public International Laws, however, such authority is vested by the people of the territory and is exercised by the representative government.
Ingredients Of Section 147
The main ingredients of Section 147 are the accused must wage war or attempt to wage such war or abet the waging of war against the Government of India. A plain study of this section displays for us that it deals with three aspects of waging war. This section applies to everyone whether a citizen or a foreigner, a foreigner is liable on the principle of de jure gentium which means allegiance and protection is reciprocally due from subject and sovereign.
Stages Of Waging War
A feature that stands out in this section is that it places at par all the three stages of waging war. For the purpose of punishment, the distinction has been made between the three. However, the legislature treats all in the same manner. The offence of abetment under this section is unique and a complete offence.
Judicial Interpretation
It is seen in the case of Mir Hasan Khan v. State of Bihar2, to be convicted under this section it must be proved that the person has planned to obtain possession of an armory and has used the rifles and ammunitions against the State troops, but also that the seizure of the armory was part and parcel of a planned action.
Difference Between Rioting And Waging War
It is important to note that there is a difference between rioting and waging war, rioting is an offence against public tranquility and defined in Chapter VII under section 191 of the BNS. It is sometimes difficult to distinguish between the two but the code lays down the differences. Rioting is usually to accomplish some private purpose, by the people engaged in it and not to resist or call into question the government’s authority, no matter how large the mob might be.
| Basis | Rioting | Waging War |
|---|---|---|
| Nature of Offence | Offence against public tranquility | Offence against the sovereignty and integrity of the State |
| Objective | Usually for private purpose | To resist or challenge the Government’s authority |
| Gravity | Serious but limited in scope | Extremely grave, affecting the State itself |
Section 148 – Conspiracy To Wage War
Section 148 was inserted in the code by the Bhartiya Nyaya Sanhita (BNS). This broadened the scope to punish even a conspiracy to wage war against the State. This section finds its foundation in the English law of the Treason Felony Act, 1848.
Section 149 – Collecting Arms
Section 149 makes the very act of collecting arms in preparation to wage war against the Government of India punishable depending on the gravity and seriousness of the nature of the offence.
Assault On A Higher Official
Section 151 deals with an assault on the President, Governor and other members of the government. This is an extension of the second clause of section 151 which makes conspiracy to show criminal force to the Government of India or any State Government punishable and it specifically deals with the executive powers such as the President and the Governor. The principle that this section lies on is the one where the heads of the State should be free from fear of personal harm and injury while discharging their legal duties. This protection is not to be considered absolute and extends only as long as they discharge their official functions.3
Ingredients Of This Section
- The accused should have assaulted the President or the Governor of any State; or
- The accused should have wrongfully restrained the President or the Governor; or
- The accused attempted to assault or wrongfully restrain the President or the Governor; or
- The accused attempts to instigate or influence the President or the Governor with force or show of force with an intention to compel them from exercising or refraining from exercising their powers.
Escape Of A State Prisoner
Sections 156 To 158 – Overview
Section 156 to 158 deals with State prisoners; State prisoners are those who have been arrested to maintain peace and tranquility with other friendly nations and for the security of the Indian State.
Sections 156 & 157 make it an offence for a public servant to voluntarily allow a prisoner of State or war to escape. It is punishable with life imprisonment up to 10 years and fine.
If the prisoner escapes due to the negligence of the public servant, this is punishable with simple imprisonment for a term up to three years and fine.
Section 158 applies to all persons who aid and assist a state prisoner to escape, not just a public servant.
Section-Wise Analysis
- Section 156 of the BNS deals with ‘public servants voluntarily allowing prisoners of State or war to escape’.
- Section 157 of the BNS deals with ‘public servant negligently causing the prisoner of State or war to escape’.
- Section 158 of the BNS deals with the ‘any person who aids or assists the escape of, rescuing, or harboring of a prisoner of State or the war to escape’. This Section is more extensive as compared to Section 156 and 157.4
Punishment Comparison Table
| Section | Nature Of Offence | Punishment |
|---|---|---|
| Section 156 | Public servant voluntarily allowing prisoner of State or war to escape | Life imprisonment up to 10 years and fine |
| Section 157 | Public servant negligently causing escape | Simple imprisonment up to 3 years and fine |
| Section 158 | Any person aiding, assisting, rescuing, or harboring prisoner of State or war | As provided under the Section |
Sedition
Historical Background Of Sedition Law
The law of sedition was introduced in India through Section 151. It was originally Section 113 of Lord Macaulay’s draft of the Indian Penal Code of 1837.
It was proposed to be included, but for unaccountable reasons it was omitted from the Penal Code when the IPC was enacted in 1860.
However, this was changed by the Indian Penal Code (Amendment) Act, 1870.
As observed by Sinha CJ, law regarding sedition is based on the principle that :-
“Every State, whether its form of Government, has to be armed with the power to publish those who by their conduct, jeopardize the safety and stability of the State, or disseminate such feelings of disloyalty as tend to lead to the disruption of the state or public disorder”
Section 1515 – Provisions
Section 1515 deals with sedition. Under this Section, any person who by:
- Words, written or spoken; or
- Signs; or
- Visible representations; or
- Otherwise;
Brings or even attempts to bring hatred or excites disaffection (including the feeling of enmity and disloyalty) towards the Government of India, is punishable with:
- Life imprisonment along with a fine in certain cases; or
- Imprisonment for up to three years along with a fine in certain cases; or
- Fine.
Judicial Interpretation
The celebrated case of Q.E. v. Bal Gangadhar Tilak6, Justice Strachey laid down in his judgment stating that ‘anyone who excites or attempts to excite feeling of disaffection great or small, will be held guilty under this section’.
Yet, in the case of Tara Singh v. State of Punjab7 Section 151 was struck down as unconstitutional being contrary to freedom of speech and expression guaranteed under Article 19(1)(a).
It thus often held that Section 151 is ultra-vires of the constitution as it seeks to punish merely bad feelings against the Government.
There have been various suggestions to amend Section 151 to suit the basic structure of the constitution which guarantees freedom of speech.
A constitutional bench of the Supreme Court, through its pronouncement in Kedar Nath v. State of Bihar8 has put to rest this ambivalence and explains that there are reasonable restrictions on the freedom of speech and expression.
Constitutional Validity Of Section 151 Of BNS
The provisions of this Section are not considered to be unconstitutional as being violative of the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Indian Constitution.
Recently, the Law Commission of India, an executive body established by the order of the Government of India, in its 279th report recommended retaining Sedition law in India and proposed some amendments which it must go through so that its misuse can be prevented.
These proposals came after the Government in 2016 requested the Law Commission to examine the sedition law and recommend the amendments which Section 151 of BNS should go through.
The Commission also argues that repealing Section 151 of BNS based on actions taken by other countries would surely ignore the uniqueness of India.
The report says that removing the Sedition law solely based on the fact that it has its origin in colonial rule is not just an explanation for its removal.
The report said if this law is to be removed solely based on the fact that it has colonial influence then the whole BNS, BNSS should be quashed because all of this law has their origin from colonial rule.
Recommendations Of The Law Commission
- The report also recommended a preliminary inquiry that should take place by a police officer of Inspector rank before registering any FIR (First Information Report) for sedition.
- The report published by the Commission suggests amending Section 151 of BNS and making it declare that individuals with a tendency to incite violence or cause public disorder would be penalized.
- This report also recommended amendments in the jail term for the law of Sedition to seven years or life imprisonment which was earlier up to three years or life imprisonment.
- This report also suggested that its misuse cannot justify the demand for repeal of Section 151 of BNS.
- This report says that various laws have been misused by various political parties for their personal gain and suggested that repealing Section 151 of BNS will have severe consequences for the national security and territorial integrity of India.
Important Judicial Pronouncements
Ram Nandan v. State of U.P.9 was the famous case in which the constitutional validity of sedition was questioned. The Allahabad High Court held that the Section imposed a restriction on freedom of speech and was not considered to be in the interest of the general public. Therefore, this Section was considered as ultra vires to the Constitution.
However, it was overruled in the case of Kedar Nath Das v. State of Bihar10. In this case, it was held that this Section would only limit the acts involving an intention to create a disturbance of law and order or enticement of violence. Thus, the Supreme Court held this Section intra vires.
Sedition Law And Its History
What Is Sedition?
(151) Sedition—Sedition is an offence which is said to be committed when any person either by words, either spoken, written or by visible representation or otherwise, attempts to bring into hatred or contempt, or excites to excites disaffection amongst the community of people against the government established by law.
Punishments For The Offence Of Sedition
- Punishment for sedition is defined under Section 151 which includes imprisonment up to a term of 3 years or life imprisonment, to which a fine may also be added in some circumstances.
- Sedition is considered to be a non-bailable offence.
- A person once charged under this law cannot apply for any government jobs in future.
- A person charged with this offence is asked to appear before the court whenever it is required by the court.
- A person charged under this offence is barred from leaving the country under any circumstances.
Comparison With Other Countries Of The World
Though sedition continues as a law in India but many countries around the world had already abolished this law because they feel such type of law act as a barrier in the overall growth and development of the country.
There are some developed countries given below who had abolished such laws in their countries:
| Country | Status Of Sedition Law | Remarks |
|---|---|---|
| United Kingdom | Repealed In 2009 | The country which ruled over India for almost a century has already repealed this law in 2009 because they felt that they do not need such laws in their country and it was rulers of this nation only who introduced sedition law in India. But India still practices this law although the nation which introduced this law in our country regards this law as obsolete and had abolished it a decade ago. |
| America | Rarely Used / Considered Obsolete | In this country freedom of speech have been granted wide production by the courts and this law is rarely used in America. This law is regarded by the citizens of America as obsolete and unconstitutional. This law has not been used by this nation for years. |
A Registered Society Through Its Director V. Union Of India And Others. May 1, 1996
Facts:
“Common Cause” a registered society advocating for public causes, filed a writ petition under Article 32 of the Constitution of India seeking general directions regarding cases pending in criminal courts throughout the country. The directions requested were:
- Quashing of all proceedings against persons accused of offences under the Motor Vehicle Act where the proceedings were initiated more than one year ago and are still pending in any court in the country; and
- The unconditional release of the accused and dismissal of all proceedings pending in criminal courts with respect to offences under the Bhartiya Nyaya Sanhita,2023 or other penal statutes which have been pending for more than three years from the date of their institutions and for which the offences the maximum sentence provided under law is not more than six months – with or without fine.
Issue:
Whether the directions requested by “Common cause” are consistent with the spirit underlying Part III of Constitution of India and the criminal justice system.
Ruling:
The court held that the directions requested by Common Cause were well-meaning and consistent with the spirit underlying Part-III of the Constitution of India and the criminal justice system. The court noted that even in cases where the maximum sentence provided under law is not more than six months, prosecution is kept pending for years and years together in criminal courts.
Therefore, the court directed that criminal courts shall try the offences mentioned in the writ petition on a priority basis. The court also directed that all courts trying criminal cases shall take appropriate actions in accordance with the above directions. The writ petition was disposed of with the above directions.
State Of Madhya Pradesh V. Supreme Court Of India, Jan 04, 2019
Facts:
The Respondent No.5 Birbal Sharma, filed a complaint against Respondent Nos.1-4 for the offences under Section 307,294read with sections 34 of the Indian Penal Court.
The original accused filed an application for bail, which was rejected by learned Session court. Subsequently, the original accused approached the High Court by filing the Miscellaneous Criminal Case No. 6075 of 2013 Under Section 482 of the Code of Criminal Procedure. The accused requested the quashing of the criminal proceedings, citing an amicable settlement between the accused and the original complainant.
Issue:
Whether the High Court erred in quashing the criminal proceedings against the original accused based on the settlement between the complainant and the Accused.
Ruling:
The present appeal is allowed. The impugned judgement and order passed by the High Court in Miscellaneous Criminal Case No. 6075 of 2013 are hereby quashed and set aside.
Reasoning:
The High Court’s decision to quash the criminal proceedings against the original accused was based on the existence of a settlement between the complainant and the Accused, as well as the Complainant’s unwillingness to further prosecute the Accused.
However, it is argued that the High court erred in its decision as the settlement and the Complainant’s refusal to prosecute do not automatically warrant the quashing of criminal proceedings.
Conclusion:
The High Court’s judgement and order in Miscellaneous Criminal Case No. 6075 of 2013 are hereby quashed and set aside.
Bibliography
End-Notes:
- Bhartiya Nyaya Sanhita (BNS) Bare Act 2023
- AIR 1951 Pat 60
- Supra note 1
- https://www.writinglaw.com/chapter-vi-121-130-of-ipc-offences-against-the-state/
- https://indiankanoon.org/doc/1641007/
- (1917) 19 BOMLR 211
- 1951 AIR 441, 1951 SCR 729
- 1962 AIR 955, 1962 SCR Supl. (2) 769
- AIR 1959 All 101, 1959 CriLJ 1
- 1962 AIR 955, 1962 SCR Supl. (2) 769
- 1993 SCC (Cri) 961 (Abetment)
Books
- The Indian Penal Code, Ratanlal & Dhirajlal, 33rd Edition
- Bare Act IPC
- Bare Act BNS
Websites
- https://indiankanoon.org/
- https://www.necrtbooks.guru/llb-books
- https://www.scconline.com/
- https://www.indiatoday.in/education-today/gk-current-affairs/story/use-and-misuse-of-sedition-law-section-151-of-ipc
- https://www.writinglaw.com/chapter-vi-121-130-of-ipc-offences-against-the-state/
