There's a simple way to solve the crime problem, obey the law; punish those who
do not.~ Rush Limbaugh
Section 121 of the Indian Penal Code (IPC):
Waging, or attempting to wage war, or abetting waging of war, against the
Government of India. - 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. 
This section deals with various ways which has the potential to waging war
against the government, the expression waging war
here refers to a
deliberate and organized attack upon the government forces and government
institutions; the term whoever
applies to Indian citizens as well
In other words, making an attempt to conduct an offence of public nature with
the aim to fulfill any criminal purpose against the state, in this aspect, the
intention or the purpose behind the act is taken in consideration and not the
murder or use of force, as such acts disturb the public tranquility, public
order and national integration. Whomsoever tries/attempts to of waging war
against the Government of India shall be punished with death, or imprisonment
for life while also being liable for a fine.
The above section is not to be confused with Section 124A of IPC i.e., Sedition.
It refers to:
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
shall be punishable with Life Imprisonment.
Both the offences are cognizable,
non-compoundable and non-bailable. Theses offences can be tried in a Court of
Session. It is said to be an offence committed under sedition, if anyone abets
or attempts to incite hatred or contempt in other people against the government
which is established under law, in a case under Section 121 of IPC if the charge
doesn't set out the speeches to be seditious, then this doesn't spoil or affect
the proceedings. Thus, it can be concluded that there is a difference between
sedition and abetting war.
Abetment is defined under section 107 of IPC, 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
The authors of the Code have deliberately used the expression wages war
The words seem naturally to import a levying of war by one who throwing off the
duty of allegiance arrays himself in open defiance of his sovereign in like
manner and by the like means as a foreign enemy would do, having gained footing
within the realm. The words mean waging war in the manner usual in war. The
expression 'waging war' is similar to the English law expression levying war
The famous words of Chief Justice Lord Mansfield in R. v. Gordon
 explain the
There are two kinds of levying war : one against the person of the king, to
imprison, to dethrone, or to kill him, or to make him change measures, or remove
councilors; the other, which is said to be levied against the majesty of the
king, or in other words, against him in his regal capacity, as when a multitude
rise and assemble to attain by force and violence any object of a general public
nature, that is levying war against the majesty of the king, and most reasonably
so held, because it ends to dissolve all the bonds of society, to destroy
property, and to overturn government, and by force of arms, to restrain the king
from reigning according to law.
The initial draft of this section came into being in 1870, where it was illegal
for conspiring against the nation itself, it was the primary reform in the
subject in hand. 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.
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.
The development of Section 121 has provided a literal exposition of the proverb
that One man's terrorist is another man's revolutionary
. Before independence,
several freedom fighters were convicted under this Section. The members of the
Indian National Army, who were tried between 1944 and 1946, were also primarily
charged with waging war. Subsequently, however, Section 121 has been employed as
a mace to bring perpetrators of terrorist activities to justice.
The word War
has been through various meanings and has been considered to
be independent from all the ambiguity, as it evolved significantly. In the year
2006, the Indian Army released a document named Doctrine of Sub-conventional
, which had a perspective to offer on the respective term.
Total war as an instrument of state policy has become less relevant than ever
before… However, this has given further impetus to sub-conventional operations
as the predominant form of warfare. Sub-conventional warfare is a generic term
encompassing all armed conflicts that are above the level of peaceful
coexistence amongst states and below the threshold of war. It includes
militancy, insurgency, proxy war and terrorism that may be employed as a means
in an insurrectionist movement or undertaken independently.
A factual precedent could be taken from the famous case of Jublia Mallah v.
, 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
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
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
The Supreme Court, the High Courts and the Chartered High Courts have played a
vital role in keeping this section in sync, as it came into force more than
seven years ago, while adapting it to the day-to-day demands of the legal
fraternity of this country.
Barendera Kumar Ghosh V. EmperorIt was stated that Section 121 must be constructed in such a unique but
simplistic way that, in ordinary sense, its ambit is not necessarily restricted
to overt acts including the collection of men, arms and ammunition. It is vital
to establish the fact that there was an attempt to accomplish by violence, any
object of a public nature, striking at the root of the sovereign's authority.
There must have been an insurrection of a general nature, as well as force
accompanying that insurrection.
Mir Hasan Khan & Others V. State
In this case, it was held that under section 121 it should be demonstrated that
the individual has wanted to possess any kind of an armory and has utilized the
rifles and ammunitions against the State troops, yet in addition that the
seizure of the ordnance was a vital part of an arranged activity.
Tara Singh V. Territory Of Punjab In this case, it was held that under section 124A was struck down as illegal
being in opposition to the right to speak freely of speech and expression
ensured under Article 19(1)(a). It hence held that Section 124A is ultra-vires
of the constitution as it tries to rebuff simply awful sentiments against the
Government. There have been different ideas to change section124A to suit the
fundamental structure of the constitution which ensures the right to freedom of
Section 121 of IPC is an act which condemns an individual to wage wars against
the Government of India and its one of the most serious of the penal offences
under Indian Law. This section is not be confused with Abetment
, since the
latter distinguished between a successful and a failed attempt of the same but
this Section eschews this distinction, it deals equally with both the abettor
and the one whose instigation has no effect whatsoever, the authors of IPC had
stated something in this regard The murderer is in greater danger after his
victim is dispatched than before. The thief is in greater danger after the purse
is taken than before.
But the rebel is out of danger as soon as he has subverted
the Government. As the penal law is impotent against a successful rebel, it is
consequently necessary that it should be made strong and sharp against the first
beginnings of rebellion, against treasonable designs which have been carried no
further than plots and preparations.
We have therefore not thought it expedient
to leave such plots and preparations to the ordinary law of abetment ... Under
that general law, a conspiracy for the subversion of the Government would not be
punished at all if the conspirators were detected before they had done more than
discuss plans, adopt resolutions and inter-change promises of fidelity.
conspiracy for the subversion of the Government… would be punished very much
less severely than the counterfeiting of a rupee, or the presenting of a forged cheque. We have, therefore, thought it absolutely necessary to make separate
provision for the previous abetting of great State offences. The subsequent
abetting of such offences may, we think, without inconvenience, be left to be
dealt with according to the general law
Along with being the only one of the nine offences under the IPC which
prescribes the penalty of capital punishment, it was originally made in
contemplation of a rebellion and not for the modern-day predominant application
to the sub-conventional warfare.
- Indian Penal Code (1860)
- 1995 CanLII 3947 (SK CA)
- Chandrachud, Chintan, The Evolution of Section 121 of the Indian Penal
Code: From the Revolutionary to the Terrorist (January 25, 2011). Madras Law
Journal (Criminal), Vol. 1, No. 9, 2011
- Suresh, Mayur, Dead Man Walking: Sovereignty and the Supreme Court in
the Age of Terror , Sarai Reader 07, Sarai CSDS, Vol. 4, 2007 .
- AIR 1944 Pat 58 (B)
- 14 Cal WN 1114 : 11 CrLJ 453 : 7 IC 359 : (1910) 37 Cal 467
- Hasrat Mohani, (1922) 24 Bom LR 885
- Frost, (1839) 9 C&P 129
- AIR 1951 Pat 60.
- AIR 1951 CriLJ 449
- Ratanlal & Dhirajlal, The Indian Penal Code (2007 31st Edn. Wadhwa
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