DAMODARAM SANJIVAYYA

NATIONAL LAW UNIVERSITY

SABBAVARAM, VISHAKAPATNAM, A.P, INDIA

PROJECT TITLE:

WAGING WAR AGAINST STATE – A CRITICAL ANALYSIS

SUBJECT:

CRIMINAL LAW -1

NAME OF THE FACULTY

Dr. V SUNITHA

NAME OF THE CANDIDATE:

JAYA SRI SAI JOTSNA CHALAMCHARLA

Roll No: 21LLB020

Semester: III

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TABLE OF CONTENT

ACKNOWLEGEMENT……………………………………………………………………

ABSTRACT………………………………………………………………………………..

INTRODUCTION………………………………………………………………………….

SYNOPSIS…………………………………………………………………………………

THE DISTINCTIVENESS OF SECTION 121…………………………………………….

SECTION 121: PRE-INDEPENDENCE JURISPRUDENCE……………………………..

(A) WAGING WAR AND THE ‘KINGS TWO BODIES’…………………………

(B) ACTIONS DIRECTED AGAINST STATE MACHINERY……………………

CO RELATED PROVISION OF THE SECTION 121…………………………………

AFTER INDIAN INDEPENDENCE, THE "WAGING WAR"…………………………....

BURDEN OF THE PROOF……………………………………………….

JUDGMENTS THAT METAMORPHOSED SECTION 121………………………………

MAGANLAL RADHAKISHAN V. EMPEROR (MAGANLAL)…………….

STATE V. MOHAMMED AFZAL AND OTHERS (MOHAMMED AFZAL)…

STATE (NCT OF DELHI) V. NAVJOT SANDHU……………………………

CONCLUSION…………………………………………………………………………

BIBILOGRAPHY…………………………………………………………………………..

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 ACKNOWLEDGEMENT

“I would like to express my sincere gratitude towards my IPC professor, Dr.V Sunitha, for her
help and guidance throughout the making of this project. This would have not been possible
without her insight and kindness.”

3
ABSTRACT

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.”1

The word "waging war" refers to an intentional and coordinated attack against government forces
and institutions, and it applies to both Indian nationals and outsiders. This section discusses
numerous methods that have the ability to wage war against the government.

In other words, attempting to commit a crime of a public nature with the intent to further any
unlawful goal against the state. In this context, the intention or purpose of the action is taken into
account, not the murder or use of force, as these actions disturb the peace, order, and unity of the
nation. Anyone who attempts to wage war against the Indian government would be sentenced to
death or life in jail and will also be required to pay a fine.

One man's terrorist is another man's revolutionary, as the creation of Section 121 has
demonstrated quite literally. Several freedom fighters were imprisoned under this Section before
independence. War was also the main accusation against the Indian National Army men who
were tried between 1944 and 1946. However, Section 121 has since been used as a weapon to
bring terrorist activities perpetrators to justice.

The researcher's goal in this project is to examine how Section 121 has changed since it went
into effect more than seven decades ago. This provision has been kept in line with the changing
requirements of contemporary criminal law attributable in large part to the Supreme Court and
the High Courts, particularly the Chartered High Courts.

1
Section 121 of IPC, 1860

4
INTRODUCTION

The phrase "wage war" was purposefully used by the Code's authors. The words seem to imply a
declaration of war by someone who refuses to be loyal to his king and stands in open defiance of
him in a similar way to how a foreign enemy would act if they had taken territory inside the
realm. The phrase refers to fighting in the conventional way. The term "waging war" is akin to
the legal term "levying war" in English.

The famous words of Chief Justice Lord Mansfield in R. v. Gordon2 explain the concept thus:

“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 first revision to the law against conspiring against the nation itself occurred in this section,
which was written in 1870, making it unlawful at the time. Conspiring to use criminal force
against the Indian government or using criminal force in public is illegal.

This section does not require any act or illegal omission to occur in order for it to be in effect,
whereas section 107 defines abetment as participating with one or more people in a conspiracy in
order to carry out an action if an act or illegal omission occurs as a result of that conspiracy and
in order to carry out that action. In other words except in respect of the offences particularized in
sec.121A conspiracy per se is not an offence.

With the passage of the Criminal Law Amendment Act in 1913, the situation was altered. It
passes a piece of emergency legislation that extends the reach of India's conspiracy law. Secs.
120A and 120B of the IPC were added as a result of this. The Chapter V addition broadened the
scope of the conspiracy.

2
R. v. Gordon JM 1974 CA 104.

5
The meaning of the word "war," particularly in the context of intra-state conflict, has undergone
significant change in recent times. The Indian Army published a book named "Doctrine of
Subconventional Operations" in 2006. It was suggested in this doctrinal article that:3

“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.”

3
“Mayur Suresh, “Dead Man Walking: Sovereignty and the Supreme Court in the Age of Terror ”, Sarai Reader 07,
Sarai CSDS : 2007 (4).”

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 SYNOPSIS

OBJECTIVE OF THE STUDY:

1. To understand the concept of the waging war against the state.

2. To understand the notion of waging war against state pre independence and post
independence.
3. To know how the section 121 of IPC, 1860 has evolved.
4. To analyse the case laws related section 121 of IPC.

SCOPE OF THE STUDY:

The study is limited to the section 121 and the sections correlated only. It doesn’t discuss
anything about the sections in the IPC.

SIGNIFICANCE OF THE STUDY:

The study helps us to know waging war against the state and how it was in pre independence
time and at present how it is, with the help of case laws.

LITERATURE REVIEW:

The researcher has taken information from various books, web sources, articles, journals, and
case laws.

RESEARCH METHODOLOGY:

The study is based on a doctrinal method of research. The research is descriptive and analytical.

RESEARCH QUESTION:

Whether there are changes to section 121 of IPC, 1860 from pre independence period?

MODE OF CITATION
Oxford style of citation has been used.

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THE DISTINCTIVENESS OF SECTION 121

One of the most serious offences under Indian law is waging a war against the Indian
government. It varies from the majority of other offences in the following ways:

1. Under the general law of abetment, a distinction is made between a successful and a
failed act of abetment for the purposes of punishment. This distinction is avoided in
Section 121. It addresses both abettor whose incitement started a conflict and one whose
instigation did not. has had no impact at all. In keeping with this, the IPC authors
concluded4
“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. A 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.”
This statement is interesting because it shows that Section 121 of the IPC was never
meant to address a danger with the characteristics of terrorism. Although the IPC's
authors thought that only a rebellion (or the planning for one) would fall under the
purview of this section, in recent years, sub-conventional warfare has received the
majority of Section 121's application.
4
“ Ratanlal & Dhirajlal, The Indian Penal Code (2007 31st Edn. Wadhwa Nagpur) 616 pg. 300”

8
 2. It is one of only nine crimes listed in the IPC that is punishable by death.
3. The elements of Section 121, in contrast to most other capital offences, do not call for the
commission of, or an attempt to commit, even a single act of homicide. Furthermore, a
violation of this provision could possibly be carried out without the use or possession of
any weapons, arms, explosives, etc. However, in actuality, courts have  acknowledged
that, while though using weapons is not a requirement for committing an offence, it is a
crucial factor in determining whether a conduct qualifies as waging war against the
Government of India.5

SECTION 121: PRE-INDEPENDENCE JURISPRUDENCE

5
Public Prosecutor v. Palathingal Valia, 84 Ind Cas 547

9
 The original version of Section 121 was three ways from what is now written in the statute
book:

1. The offence was waging a war on the Queen rather than the Government of India;
2. The death penalty or transportation for life was imposed as punishment (as opposed to life
imprisonment); and
3. The mandatory forfeiture of all property was substituted with an unlimited fine.

It was unquestionably acknowledged that the IPC's definition of "waging war" was derived
from the English Statute of High Treason's definition of "levying war".6 When deciding
whether the legal threshold for waging war had been crossed, the majority of Indian rulings
referenced English law.

(A) WAGING WAR AND THE ‘KINGS TWO BODIES’

In his acclaimed work ‘The Kings Two Bodies: A Study in Medieval Political Theology’ 7,
Ernst
Kantorowicz draws the notional distinction between two bodies of the medieval ruler: his
personal being, and the political body of subjects which he ruled over. Courts recognized this
distinction as a facet of Section 1218:

“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 counsellors; 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 tends 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.”

(B) ACTIONS DIRECTED AGAINST STATE MACHINERY

6
Treason Act, 1351, 25 Edw. III St. 5 c. 2.
7
Princeton University Press, 1957: New Jersey.
8
Maganlal Radhakrishnan v. Emperor, AIR 1946 Nag 173

10
 In Barendra Kumar Ghosh v. Emperor,9 is was stated that Section 121 must be construed in its
ordinary sense, and that its ambit is not necessarily restricted to overt acts including the
collection of men, arms and ammunition. It was essential to establish that there was an attempt
to accomplish by violence, any object of a public nature, striking at the root of the sovereign’s
authority.10 There must have been an insurrection of a general nature, as well as force
accompanying that insurrection.11

On this account, those who attacked government institutions, whether related to

administration, policy or law and order, were frequently convicted of waging war. In Aung
Hla v. Emperor,12 a group of insurgents who undertook a deliberate and organized attack upon
government forces, with the motive of preventing the general collection of capitation tax were
convicted under Section 121 by the Rangoon High Court.

CORRELATED PROVISIONS OF THE IPC

9
“Barendra Kumar Ghosh v. Emperor ,14 Cal WN 1114 : 11 CrLJ 453 : 7 IC 359 : (1910) 37 Cal 467.”
10
“Hasrat Mohani, (1922) 24 Bom LR 885”
11
Frost, (1839) 9 C&P 129.
12
Aung Hla v. Emperor, (1931) 9 Ran 404.

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Section 121 is the spine upon which several provisions of Chapter VI of the IPC rest. Section
121A, for instance, punishes two forms of conspiracy:

(i) Conspiring (within or outside India) to commit any of the offences punishable by
Section 121; and
(ii) Conspiring to overawe by means of criminal force or the show of criminal force, the
Government.

Section 121A resembles Section 121 in that the essence of an offence is merely an agreement to
do all or any of the prohibited acts. It is not necessary that any act or illegal omission should take
place in pursuance of the agreement.13

Section 122 seeks to draw the fine distinction between preparation and an attempt to commit an
offence. It reads:14

“Collecting arms, etc., with intention of waging war against the Government of India - Whoever
collects men, arms or ammunition or otherwise prepares to wage war with the intention of either
waging or being prepared to wage war against the Government of India, shall be punished with
imprisonment for life or imprisonment of either description for a term not exceeding ten years,
and shall also be liable to fine.”

The prosecution must prove not only that personnel, weapons, ammunition, etc. have been
gathered but also that this has been done solely to prepare to wage war against the Government
of India in order to establish that an offence has been committed under Section 122.15

Further, Section 123 of the IPC encompasses the intentional concealment of a design to wage
war against the Government of India. Its essential ingredients are:

(i) The existence of a design to wage war against the Government of India;
(ii) Intentional concealment of such a design;
(iii) Such concealment should be with the intention to facilitate the waging of war against
the Government of India.

13
Nilkanta v. Emperor, 13 CrLJ 305 : 14 IC 849.
14
Section 122 of IPC, 1860.
15
Javed Ahmed v. State of Maharshtra, 2007 Cri LJ 1386.

12
 In Shaukat Hussain Guru v. NCT, Delhi 16 , the Supreme Court highlighted the distinction
between Sections 121 and 123 of the IPC:

“To prove an offence under Section 121, IPC, the prosecution is required to prove that the
accused is guilty of waging war against the Government of India or attempts to wage such
war, or abets the waging of such war, whereas for proving the offence under Section 123, IPC
against the accused the prosecution is required to prove that there was a concealment by an act
or by illegal omission of existence of a design to wage war against the Government of India
and he intended by such concealment to facilitate, or he knew that such concealment will
facilitate, the waging of war.”

War against the governments of any Asian powers that are allies or at peace with the
Government of India is forbidden under Section 125.

AFTER INDIAN INDEPENDENCE, THE "WAGING WAR"

16
“Shaukat Hussain Guru v. NCT, Delhi AIR 2008 SC 2419 : (2008) 6 SCC 776.”

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 Although in theory Section 121's application has not altered since independence, its meaning
has undergone a substantial jurisprudential modification. The analysis of the Mohammed
Afzal17 and Navjot Sandhu18 instances maps a significant portion of the development of this
Section in the post-independence era. Other notable case law from this time period has
emerged, nevertheless.

BURDEN OF THE PROOF

As time has passed, courts have placed more and more emphasis on the fact that the burden of
proof for the prosecution to prove the commission of an offence under Section 121 is
substantial because of the magnitude of the offense. This was noted by the Gujarat High Court
when it said that “it is not incumbent on the accused to show what the object and meaning of
the acts done were, but it is the duty of the prosecutors to make out their case against the
accused.”19

When the Patna High Court had to decide whether a mutiny among some members of the
police force constituted an offence under Section 121 in the case of Mir Hasan Khan and
Others v. State,20 it expressed its opinion as follows:

“The expression ‘waging war’ means and can, I think, only mean ‘waging war in the manner
usual in war.’ In other words, in order to support a conviction on such a charge, it is not
enough to show that the persons charged have contrived to obtain possession of an armoury
and have, when called upon to surrender it, used the rifles and ammunition so obtained against
the King's troops. It must also be shown that the seizure of the armoury was part and parcel of
a planned operation and that their intention in resisting the troops of the King was to
overwhelm and defeat these troops and then to go on and crush any further opposition with
which they might meet until either the leaders of the movement succeeded in obtaining
possession of the machinery of government or until those in possession of it yielded to the
demands of their loaders.”

17
Mohammed Afzal Kumar v. State, 107 (2003) DLT 385.
18
State v. Navjot Sandhu, AIR 2005 SC 3820.
19
State of Gujarat v. Shahnawaz Abdulgafur Bhatti, (2008) 1 GLR 346.
20
AIR 1951 Pat 60. Cited in Javed Ahmed v. State of Maharshtra, 2007 Cri LJ 1386

14
 This ruling clarifies the fact that, in the absence of other evidence, every attack on a sovereign
institution does not qualify as an act of war. The importance of the evidentiary transition from
a general offence to an offence against the state has been correctly highlighted by courts.

JUDGMENTS THAT METAMORPHOSED SECTION 121

In this part, I analyse three cases which, to borrow the words of Lord Denning, 21 not merely
ironed out the creases, but altered the fabric of Section 121.

1. MAGANLAL RADHAKISHAN V. EMPEROR (MAGANLAL)22

Maganlal served as an officer with the anti-colonial organisation known as the
"Hindustani Lal Sena," which was founded on the anniversary of the Jallianwala Bagh
Massacre. He spoke at public events in 1942, urging the attendees to win Indian
independence. He then organised a group of volunteers known as a "sanrakshak dal" who
were told to mobilise when a whistle was blown. Maganlal organised this gathering to
attack police stations and outposts, kill police officers inside, and steal their property. The
"sanrakshak dal" that demolished the station-house included a person by the name of
Mallu Koshti. Charges against Maganlal and Mallu Koshti (Apellants) included one for
waging war against the Queen under a number of IPC clauses.
The Appellants were found guilty by the Sessions Court of violating Section 121 and were
given transportation for life. The Nagpur High Court dismissed Maganlal's appeal and
upheld his conviction. However, Mallu's Section 121 conviction was overturned:
“It is no doubt true that there is no distinction between a principal and an accessory in an
offence under Section 121. But there is a line of distinction, though fine, which consists of
a difference between men who plan and execute a raid, and those who, swept along in the
maelstrom of events in the sudden frenzy, participate in an offence of that kind. The latter
cannot be held liable under Section 121.”
In acquitting Mallu, the court made a distinction between being lured into the crime by a
"herd mentality" and being a part of a pre-planned plot to start an uprising. Although this
strategy is commendable, it has undoubtedly increased the burden on the prosecution and
the courts to establish a distinct and direct link in the evidence between the planning and
21
Seaford Court Estates Ltd. v. Asher, (1949) 2 KB 481.
22
Maganlal Radhakishan v. Emperor AIR 1946 Nag 173.

15
 execution of an assault. In other words, courts would be reluctant to recognise that
engaging in an act of waging war qualifies as waging war in accordance with Section 121.
Maganlal is acclaimed more for the process the Nagpur High Court used to reach its
conclusion than for the actual ruling, though. Numerous instances have since
acknowledged the Court's brief examination of the pre-independence authorities on
"waging war":
“From the authorities the following principles emerge:
(i) No specific number of persons is necessary to constitute an offence under Section
121, IPC;
(ii) (The number concerned or the manner in which they are equipped or armed is not
material;
(iii) The true criterion is the quo animo with which the gathering assembled;
(iv) The object of the gathering must be to attain by force and violence, an object of a
general public nature, thereby striking directly against the King’s authority;
(v) There is no distinction between principal and accessory and all who take part in the
unlawful act incur the same guilt.”

Since the incident involving Maganlal Radhakishan, where police buildings were
damaged, an attack on a public institution has evolved into a covert component of the
crime of waging war. It is irrelevant to ask whether judges would be likely to find
terrorists or rebels guilty under Section 121 if they only target private buildings. One
wonders if their position would be affected if they encountered and retaliated against
police forces while doing so.

2. STATE V. MOHAMMED AFZAL AND OTHERS (MOHAMMED AFZAL).23

Five terrorists broke into the New Delhi Parliament House complex on December 13,
2001, while it was in session. They intended to demolish the structure and assassinate or
kidnap a number of state officials. Security personnel, however, neutralised the terrorists.
Four people were primarily prosecuted for their roles in the attack's planning and
execution: Mohammed Afzal, Shaukat Hussain, Navjot Sandhu (Hussain's wife), and
S.A.R. Gilani (an acquantiance of Shaukat Husain). Mohammed Afzal, Shaukat Hussain,
23
“State v. Mohammed Afzal and others 107 (2003) DLT 385 : 2003 (71) DRJ 178”

16
 and S.A.R. Gilani were found guilty on a number of offences by the Special Court
established by the Prevention of Terrorism Act of 2002, including waging war against the
government. Although the three persons convicted were sentenced to death, they were
given life imprisonment for contravening Section 121 of the IPC. Navjot Sandhu was
convicted under Section 123 of the IPC.

In the death reference at hand, the Delhi High Court increased Moahmmed Afzal and
Shaukat Hussain's punishment under Section 121 and sentenced them to death. The Court
found S.A.R. Gilani and Navjot Sandhu not guilty. J. Nandrajog said:24

“…though there were five terrorists who attacked Parliament… but from the fire power
available with them and they being armed to the teeth and had they succeeded, the entire
Parliament which was in Session would have been wiped out, we hold that the actions of
the terrorists would be acts of waging war against the Government of India. Accused
Afzal and Shaukat were active participants in providing the logistic support. If not acts of
waging war what they did would certainly be of acts of abetting the waging of war… The
attack was on Parliament, when in session. The sovereignty of the country was attacked.
To borrow the words of the Apex Court in … Krishna Mochi v. State of Bihar, the gravity
of the offence is of a magnitude that the collective conscious of the community is so
shocked that it will expect the holders of the judicial power centre, to inflict death penalty
irrespective of their personal opinion as regards desirability or otherwise of retaining the
death penalty. Indeed, after the unfortunate incident, this country had to station its troops
at the border and large scale mobilisation of the armed forces took place. The clouds of
war with our neighbour loomed large for a long period of time. The nation suffered not
only an economic strain but even the trauma of an imminent war.”

The Delhi High Court deserves appreciation for departing from a number of precedent-
setting cases and adopting a modern interpretation of Section 121. The Court asked for a
liberal interpretation of the idea of war and quoted extensively Yoram Dinstein's scholarly
writings:25

24
Ibid.
25
ibid.

17
 “To understand the meaning of ‘war’ a distinction has to be drawn between what war
signifies in the domestic law of a State and what it denotes in International Law… Where
the goal is a complete subjugation of the enemy and a State mobilizes all its resources in
full measure and goes into offensive with all its military might, undeniably, it is war. But
this is not the only concept of war. A dispute, like a bonder rectification mere so where it
comes with an emotional load, if sought to be attained with force may well be a war.
Hostilities do not cease to be wars merely because some weapons remain on the shelf… In
our opinion, wars may occur where belligerents are not States. Individuals having
different allegiance, especially political, may engage themselves against the State by use
of arms.”

Surprisingly, the Court ruled in obiter dicta that there may be circumstances where attacks
on public facilities result in the murder of innocent people yet do not constitute a violation
of Section 121. This finding implies that starting war cannot be inferred automatically
from an attack or even a siege on a public structure. The Delhi High Court also subtly
rejected a premise established in Maganlal by acknowledging that the level of hostility
assumed by an operation matters when determining whether an offence under Section 121
has been committed. The Supreme Court followed this strategy in Navjot Sandhu, which
is covered in more detail below.

3. STATE (NCT OF DELHI) V. NAVJOT SANDHU26

26
“State (NCT Of Delhi) V . Navjot Sandhu AIR 2005 SC 3820: (2005) 11 SCC 600.”

18
 Mohammed Afzal's appeals gave the Supreme Court a chance to definitively establish the
law concerning the conduct of war. The Delhi High Court provided the groundwork for
the Supreme Court's examination of Section 121. Mohammed Afzal's conviction and death
sentence were upheld by the court. Shaukat Hussain's appeal was partially upheld, and he
was only found guilty under Section 123 of the IPC, receiving a ten-year sentence of
solitary confinement. It was upheld that S.A.R. Gilani and Navjot Sandhu were acquitted
by the Delhi High Court.

The Delhi High Court's progressive interpretation of war in line with the Indian Army's
doctrine of sub-conventional operations was continued by the Supreme Court. The court
stated that:27

“The expression ‘war’ preceded by the verb ‘wages’ admits of many shades of meaning
and defies a definition with exactitude… War, terrorism and violent acts to overawe the
established Government have many things in common. It is not too easy to distinguish
them, but one thing is certain, the concept of war embedded in Section 121 is not to be
understood in international law sense of inter-country war involving military operations by
and between two or more hostile countries. Section 121 is not meant to punish prisoners of
war of a belligerent nation… Though every terrorist act does not amount to waging war,
certain terrorist acts can also constitute the offence of waging war and there is no
dichotomy between the two… The normative phenomenon of war as understood in
international sense does not fit into the ambit and reach of Section 121.”

Needless to say, what conclusively established that the terrorist acts had met the threshold
of waging war was the fact that the operation was carried out in a structure which is
regarded as a symbol of Indian democracy and independence.

The principles outlined in Maganlal, which for a while were practically regarded as the
bible on Section 121, were also declared dead by the Supreme Court. Each of the
following principles is taken into account, along with the Supreme Court's ruling on it: It
is not necessary for an offence under Section 121 to involve a certain number of people,

27
Ibid

19
and it is also immaterial how many people are involved or how they are armed or
prepared.

These two principles have been categorically rejected by the Supreme Court. The Court
requested "clarification" about the fact that the number of parties engaged, the type of
weapons used, and the number of arms used may not necessarily be a deciding factor in
determining the commission of an offence under Section 121. The quo animo with which
the group came together serves as the actual criterion; the group's aim must be to
accomplish a objective of a general public character through force and violence, thus
undermining the king's power.

It is clear that the Supreme Court essentially established a new procedure for handling
issues arising under Section 121 in Navjot Sandhu. It has asked for a pertinent, forward-
thinking, and modern approach to the crime of waging war by eliminating the precedential
importance of various pre-independence cases.

20
SUGGESTIONS

One of the most serious criminal offences under Indian law is Section 121 of the IPC, which
forbids anybody from waging war against the Indian government. This section should not be
confused with abettment because the latter made a distinction between an attempt that was
successful and one that was unsuccessful. Instead, this section treats both the abettor and the
person whose instigation has no effect at all equally. The authors of the IPC had made a
statement to this effect. After killing his victim, the murderer faces a bigger threat than before.
After stealing the pocketbook, the criminal faces higher risk than before.

However, once the rebel has overthrown the government, he is no longer in danger. Due to the
criminal law's ineffectiveness against a successful insurrection, it is imperative that it be
strengthened and sharpened un order to combat the early signals of revolt and treasonous plans
that have just reached the stage of plotting and planning.

21
CONCLUSION

The modern form of terrorism in particular was never intended to be addressed by Section
121. Nevertheless, although having remained essentially unaltered in form since its origin,
it has over time come to be recognised as one of the most effective tools against terrorist
activities. First , praise must go to the draftsmen for their thorough yet exact codification
and incredible foresight; next, the courts deserve praise for adopting a flexible strategy to
The accommodate the changing needs of the criminal justice system.

The then Home Minister P. Chidambaram in 2010, suggested that India's legal system is
adept at dealing with terrorist activities because of the comparatively swift and successful
prosecution of Ajmal Kasab. Although Section 121 has been a crucial tool in bringing
terrorists to jail, one cannot help but think that it is only a short-term answer in India's
battle against terrorism.

BIBLIOGRAPHY

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1. Ratanlal & Dhirajlal, The Indian Penal Code (2007 31st Edn. Wadhwa Nagpur) 616.

2. Mayur Suresh, “Dead Man Walking: Sovereignty and the Supreme Court in the Age of
Terror ”, Sarai Reader 07, Sarai CSDS : 2007 (4).
3. Maganlal Radhakishan v. Emperor AIR 1946 Nag 173.
4. State v. Mohammed Afzal and others 107 (2003) DLT 385 : 2003 (71) DRJ 178
5. State (NCT Of Delhi) V . Navjot Sandhu AIR 2005 SC 3820: (2005) 11 SCC 600.

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