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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]

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 as foreigners.

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 state.

Historical Aspect
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[2]. 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 [3] 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 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.

The position 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.[4]

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.[5]

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 Operations, which had a perspective to offer on the respective term.

It said:
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.[6]

A factual precedent could be taken from the famous case of Jublia Mallah v. Emperor[7], 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 other.

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 war 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.

Case Studies

• Barendera Kumar Ghosh V. Emperor[8]

  It 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[9]. There must have been an insurrection of a general nature, as well as force
  accompanying that insurrection.[10]
   

• Mir Hasan Khan & Others V. State[11]

  
  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 [12]

  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 speech.

Conclusion
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.

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[13]

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.

Bibliography

• https://blog.ipleaders.in/offences-against-the-state-all-you-need-to-know-about-it/
• https://advocatespedia.com/Section_121_of_ipc
• https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1831501
• https://www.scribd.com/document/278941424/IPC-Case-Empror-vs-Barendra-KumarGhose
• https://www.ejusticeindia.com/offence-against-the-state-under-ipc-important-provision-case-law/#_ftn3

End-Notes:

1. Indian Penal Code (1860)
2. 1995 CanLII 3947 (SK CA)
5. 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
6. Suresh, Mayur, Dead Man Walking: Sovereignty and the Supreme Court in the Age of Terror , Sarai Reader 07, Sarai CSDS, Vol. 4, 2007 .
7. AIR 1944 Pat 58 (B)
8. 14 Cal WN 1114 : 11 CrLJ 453 : 7 IC 359 : (1910) 37 Cal 467
9. Hasrat Mohani, (1922) 24 Bom LR 885
10. Frost, (1839) 9 C&P 129
11. AIR 1951 Pat 60.
12. AIR 1951 CriLJ 449
13. Ratanlal & Dhirajlal, The Indian Penal Code (2007 31st Edn. Wadhwa Nagpur) 616.