The question that arises for consideration, therefore, is what is the true import of the expression “Government of India”? In its narrower sense, Government of India is only the executive limb of the State. It comprises a group of people, the administrative bureaucracy that controls the executive functions and powers of the State at a given time. Different governments, in continuous succession, serve the State and provide the means through which the executive power of the State is employed. The expression “Government of India” is surely not used in this narrow and restricted sense in Section 121. In our considered view, the expression “Government of India” is used in Section 121 to imply the Indian State, the juristic embodiment of the sovereignty of the country that derives its legitimacy from the collective will and consent of its people. The use of the phrase “Government of India” to signify the notion of sovereignty is consistent with the principles of Public International Law, wherein sovereignty of a territorial unit is deemed to vest in the people of the territory and exercised by a representative government.
546. It is important to note here that earlier the word used in Section 121 (as well as all the other Sections referred to above) was ”Queen”. After the formation of the republic under the Constitution it was substituted by the expression “Government of India” by the Adaption of Laws Order of 1950. In a republic, sovereignty vests in the people of the country and the lawfully elected government is simply the representative and a manifestation of the sovereign, that is, the people. Thus, the expression “Government of India”, as appearing in Section 121, must be held to mean the State or interchangeably the people of the country as the repository of the sovereignty of India which is manifested and expressed through the elected Government.
547. An illuminating discussion on the issue of “Waging war against the Government of India” is to be found in this Court’s decision in Navjot Sandhu. In paragraph 272 of the judgment P. Venkatarama Reddi, J., speaking for the Court, referred to the report of the Indian Law Commission that examined the draft Penal Code in 1847 and quoted the following passage from the report:
“We conceive the term ‘ wages war against the Government’ naturally to import a person arraying himself in defiance of the Government in like manner and by like means as a foreign enemy would do, and it seems to us, we presume it did to the authors of the Code that any definition of the term so unambiguous would be superfluous.”
548. To us, the expression, “in like manner and by like means as a foreign enemy” (highlighted by us in the above quotation), is very significant to understand the nature of the violent acts that would amount to waging war. In “waging war”, the intent of the foreign enemy is not only to disturb public peace or law and order or to kill many people. A foreign enemy strikes at the sovereignty of the State, and his conspiracy and actions are motivated by that animus.
549. In Navjot Sandhu, the issue of “waging war” against the Government of India has also been considered in relation to terrorist acts and in that regard the Court observed and held as follows:
“275. War, terrorism and violent acts to overawe the established Government have many things in common. It is not too easy to distinguish them……
276. It has been aptly said by Sir J.F. Stephen:
“Unlawful assemblies, riots, insurrections, rebellions, levying of war are offences which run into each other and not capable of being marked off by perfectly definite boundaries. All of them have in common one feature, namely, that the normal tranquility of a civilized society is, in each of the cases mentioned, disturbed either by actual force or at least by the show and threat of it.”
277. To this list has to be added “terrorist acts” which are so conspicuous now-a-days. 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. Terrorist acts can manifest themselves into acts of war. According to the learned Senior Counsel for the State, terrorist acts prompted by an intention to strike at the sovereign authority of the State/Government, tantamount to waging war irrespective of the number involved or the force employed.
Source : Md.Ajmal Md.Amir Kasab @Abu … vs State Of Maharashtra (2013)3SCC(Cri)481
