Offences Against the State and Terrorism

A. Waging war (s.147; IPC s.121)

• Meaning: an organised attempt, by force or numbers, to overthrow or overawe the Government, or to coerce it by force of arms; mere riot or an attack with no design to challenge the government's authority is not waging war. Test: the purpose and the manner (arms, organised, intention to usurp governmental powers), not the number of persons or success.

• Cases: Mohd. Ajmal Mohammad Amir Kasab v. State of Maharashtra (2012) (26/11 Mumbai attacks; a group of foreign nationals who attacked to challenge the sovereign authority of India were guilty of waging war; the Court explained the "collective intention and design" test); State (NCT of Delhi) v. Navjot Sandhu @ Afzal Guru (2005) (Parliament attack; waging war inferred from the planned assault on a seat of sovereignty); Nazir Khan v. State of Delhi (2003) (hijacking of an aircraft can be an act of waging war only if it is intended to wage war against the Government, otherwise not).

• Constitutional protections: the President and Governor are protected under BNS s.151.

B. Sedition and the new s.152

• Old law (IPC s.124A): bringing or attempting to bring into hatred or contempt, or exciting or attempting to excite disaffection, towards the Government established by law; punishment life or up to three years, with or without fine.

• Kedar Nath Singh v. State of Bihar (1962): the Supreme Court upheld s.124A but read it down to apply only to acts involving incitement to violence or intention or tendency to create public disorder by acts of violence. Balwant Singh v. State of Punjab (1995): casual sloganeering ("Khalistan Zindabad") without any incitement was not sedition. Shreya Singhal v. Union of India (2015) distinguished discussion and advocacy from incitement and struck down s.66A of the IT Act. Dr. Binayak Sen v. State of Chhattisgarh (2011): possession of literature or sympathy with a cause does not by itself amount to sedition. S.G. Vombatkere v. Union of India (2022): the Supreme Court put the sedition law in abeyance and asked the Government to re-examine it; the BNS then dropped the word "sedition".

• BNS s.152: whoever, purposely or knowingly, by words (spoken or written), signs, visible representation, electronic communication, use of financial means or otherwise, excites or attempts to excite secession, armed rebellion or subversive activities, or encourages feelings of separatist activities, or endangers the sovereignty or unity and integrity of India, shall be punished with imprisonment for life or up to seven years and fine. Explanation: comments expressing disapproval of Government measures or administrative action by lawful means without exciting the above do not amount to an offence. Differences from sedition: the term "sedition" and "disaffection" are gone, the mens rea "purposely or knowingly" is explicit, punishment has risen (minimum is no longer three years; the maximum is life or seven years), and electronic communication and financial means are added. Critics argue it may be wider and vaguer.

These sections sit in Chapter VI (between culpable homicide and hurt) but are best learnt as a group.

A. Organised crime (s.111; modelled on MCOCA, 1999)

• Definition: any continuing unlawful activity (kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, economic offences, cyber-crimes, trafficking in persons, drugs, weapons or illicit goods/services, human trafficking for prostitution or ransom) by a person or group acting singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence, threat of violence, intimidation, coercion or other unlawful means, with the objective of gaining direct or indirect material benefit, including financial benefit.

• Continuing unlawful activity: an activity prohibited by law, punishable with imprisonment of three years or more, undertaken by a person acting individually or jointly as a syndicate member, in respect of which more than one charge-sheet has been filed before a competent court within the preceding ten years and the court has taken cognizance.

• Organised crime syndicate: a group of two or more persons who, acting singly or collectively as a syndicate or gang, indulge in any continuing unlawful activity.

• Punishment: if the offence results in death: death or imprisonment for life and fine of not less than ₹10 lakh; in other cases: imprisonment of five years to life and fine of not less than ₹5 lakh. Abetting, attempting, conspiring, being a member of a syndicate, harbouring and possessing property derived from organised crime are separately punishable (typically three to ten years and fine of ₹5 lakh or more; membership at least five years).

• Background: Maharashtra Control of Organised Crime Act, 1999 (MCOCA), Karnataka Control of Organised Crimes Act, 2000, Gujarat Control of Terrorism and Organised Crime Act, 2015 (GCTOC), UP Control of Organised Crime Act, 2017. State of Maharashtra v. Bharat Shanti Lal Shah (2008) upheld the validity of MCOCA, including its provisions on interception of communications and confessions to police.

B. Petty organised crime (s.112)

• Any act of theft, snatching, cheating, unauthorised selling of tickets, unauthorised betting or gambling, selling of public examination question papers, or any similar criminal act by a group or gang that causes general feelings of insecurity among citizens. Punishment: imprisonment of one to seven years and fine. (Marked as a new offence aimed at street-level gangs.)

C. Terrorist act (s.113; modelled on UAPA)

• Intent: to threaten or likely to threaten the unity, integrity, sovereignty, security or economic security of India, or to strike terror or likely to strike terror in the people or any section of the people in India or any foreign country.

• Means and outcomes: by using bombs, dynamite, explosives, inflammable substances, firearms, lethal weapons, poisonous or noxious gases, chemicals or any hazardous substance (biological, radioactive, nuclear), to cause or likely cause (i) death or injuries; (ii) loss, damage or destruction of property; (iii) disruption of supplies or services essential to the life of the community; (iv) damage to property used for defence or government purposes; or by (b) overawing by criminal force or show of criminal force or causing the death of a public functionary; or (c) detaining, kidnapping or abducting any person and threatening to kill or injure in order to compel the Government or any other person to do or abstain from doing any act.

• Economic security: the Explanation covers smuggling or circulating high-quality counterfeit Indian currency and similar acts damaging the monetary stability of India.

• Punishment: if the act results in the death of any person: death or imprisonment for life (the remainder of natural life) and fine; in other cases: imprisonment of not less than five years up to life and fine. Conspiring, attempting, advocating, abetting, advising or facilitating a terrorist act, organising a terrorist camp, recruiting, harbouring and being a member of a terrorist organisation have separate punishments (typically five years to life; harbouring three years to life; membership life).