🕵️ Section 121 of BNS, 2023 – Conspiracy to Wage War Against the Government of India: Law Beyond the Battlefield

Published by: Legal India 999
Category: Criminal Law | Tags: Conspiracy, National Security, Anti-State Acts, BNS 2023
Word Count: Approx. 3000 words

📌 Introduction

The concept of “conspiracy” in criminal law is not new. However, the Bharatiya Nyaya Sanhita (BNS), 2023, elevates its significance in the context of national security. Section 121 is one of the most critical legal tools under the new code, addressing conspiracy to wage war against the Government of India. While actual war or rebellion is a rare event, plots and conspiracies to subvert the state are far more common—and dangerous.

This blog provides a detailed legal breakdown, comparative perspective, and real-world relevance of Section 121, aimed to educate lawyers, law students, policymakers, and concerned citizens.

📘 Text of Section 121 – Conspiracy to Wage War

Section 121 – “Whoever within or without India conspires to commit any of the offences punishable by Section 120, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

⚖️ Essence of Section 121

Section 121 criminalizes planning, discussion, or agreement to engage in war against the Indian Government. It’s a preparatory offence—punishable even if the planned war or attack never occurs.

Key Elements:

Element	Explanation
Conspiracy	A secret agreement or plan between two or more people to commit a crime
Offence under Section 120	Refers to actual waging of war (includes cyberwar, armed rebellion, etc.)
Overawing the government	Using threat or show of criminal force to intimidate government
Territorial Scope	Applies even if the conspiracy occurs outside India
Punishment	Life imprisonment or up to 10 years + fine

🧠 What Is “Conspiracy” in Legal Terms?

In legal doctrine, a criminal conspiracy does not require the crime to be committed—intent and agreement alone can be sufficient.

Conditions Required:

Agreement: Between two or more persons
Intention: Must be to commit an unlawful act (like waging war)
Act in Furtherance: Any action, even minor, that advances the conspiracy

Example: Two people exchanging encrypted messages about attacking military bases – even without executing it – may be charged under Section 121.

⚔️ “Overawing” the Government: Meaning & Implications

The term “overawe” adds a unique dimension to Section 121. It criminalizes:

Using threats or force to intimidate the central or state government
Creating fear of violence to coerce policy decisions
Mobilizing mobs, armed or unarmed, to challenge state authority

📌 Note: Peaceful protests or criticism of government policies are not punishable under this law unless accompanied by criminal force or threats.

📜 IPC vs BNS: Conspiracy to Wage War

Criteria	IPC Section 121A	BNS Section 121
Offence	Conspiracy to wage war or overawe the state	Similar, with wider scope including cross-border acts
Punishment	Life imprisonment or 10 years	Same, but stricter in practice due to expanded definitions
Territorial Extent	Mostly within India	Includes international conspiracies
Modernization	Traditional definition	Includes cyber, digital & economic conspiracies

🌐 Cross-Border Implications

One of the most powerful elements of Section 121 is its extraterritorial application. It covers individuals:

Who conspire outside India
With foreign nationals or groups
Using digital tools, such as encrypted messaging, cryptocurrency, etc.

Use Case:

If a person in the UAE funds and helps plan a terrorist act in Kashmir, even if they never set foot in India, they can be prosecuted under Section 121.

This strengthens India's hand in international legal cooperation through:

Extradition treaties
Interpol red notices
Bilateral counter-terrorism agreements

🧑‍⚖️ Judicial Interpretation of Conspiracy

Over the years, Indian courts have refined the doctrine of conspiracy. Let’s look at landmark rulings that will influence how Section 121 is interpreted:

🔹 State vs Nalini (Rajiv Gandhi Assassination Case)

The Supreme Court held that mere knowledge of a conspiracy is not enough—the person must actively participate or agree to it.

🔹 Kehar Singh vs Delhi Administration (Indira Gandhi Assassination)

The court reaffirmed that mental intent (mens rea) and active agreement are vital for proving conspiracy.

🔹 Navjot Sandhu (Parliament Attack Case)

Held that circumstantial evidence, such as call records, email exchanges, and travel history, can be used to prove conspiracy.

🧠 Insight: For Section 121 to apply, prosecution must establish not just association—but clear agreement to wage war or overawe the government.

📡 Technology, Social Media & Conspiracy

Section 121 takes on new relevance in the era of:

Dark web communications
Anonymous forums
End-to-end encrypted apps like Signal or Telegram

These tools are often used to:

Plan attacks
Spread extremist ideology
Mobilize youth or foreign fighters

Digital footprints left behind—IP logs, message backups, metadata—can serve as evidence to prove conspiracy under Section 121.

⚠️ Important: Section 121 ensures that even those behind the keyboard, planning violence or inciting armed resistance, can face life imprisonment.

🧾 Hypothetical Scenarios of Section 121 in Action

Case 1: Digital Terrorist Network

A group of Indians and Pakistanis run an encrypted Telegram channel where they plan to bomb public places in Delhi and Mumbai. One of them purchases explosives while another coordinates travel logistics.

Applicable Law: Section 121, BNS
Why? – There's a conspiracy to wage war, involving cross-border actors and criminal preparation.

Case 2: Rebel Army Formation in Forest

A group of radicalized youths in Chhattisgarh begin building a rebel force to fight the government, recruit tribal villagers, and plan attacks on security forces.

Applicable Law: Section 121
Why? – They are conspiring to use force to overawe and destabilize the state.

Case 3: Influencer Incites Armed Revolution

A political YouTuber, with a massive following, consistently calls for armed rebellion, shares bomb-making tutorials, and creates fear about government collapse.

Applicable Law: Section 121
Why? – Inciting and conspiring to use criminal force against the government qualifies under the provision.

🔐 Balancing State Security & Civil Liberties

Section 121 is powerful—but it must be used judiciously to prevent:

Misuse against dissenters
Suppression of free speech
Unlawful surveillance

India’s Constitution provides strong safeguards:

Right	Protection
Article 19(1)(a)	Freedom of speech and expression
Article 21	Right to life and liberty
Article 22	Rights of arrested persons, including legal representation

✅ Legal Checks:

Judicial approval needed for prolonged detention
Trial must follow due process
Evidence must prove intent and agreement, not just ideology

📢 Free speech is not a license to incite violence, but lawful dissent is not punishable under Section 121.

🌍 International Counterparts

Country	Law Equivalent	Scope
USA	18 U.S.C. § 2384 (Seditious Conspiracy)	Punishes two or more people conspiring to overthrow the government
UK	Treason Act 1351 & Terrorism Act 2000	Includes conspiracy to wage war or incite rebellion
Australia	Criminal Code Act 1995 (Part 5.3)	Covers conspiracy to commit terrorist acts
Canada	Criminal Code Section 465	Covers conspiracy to commit indictable offences against the state

India’s Section 121 is on par with global legal standards, ensuring it meets international norms while remaining rooted in constitutional values.

📈 Role of Intelligence & Law Enforcement

Section 121 empowers Indian agencies such as:

NIA (National Investigation Agency)
IB (Intelligence Bureau)
RAW (Research and Analysis Wing)
Cyber Crime Units

These agencies can:

Intercept communications
Monitor suspicious digital activity
Identify radicalization patterns
Track cross-border funding and ideology transfer

But they must operate under:

Judicial oversight
Parliamentary committees
Internal accountability mechanisms

📝 Conclusion

Section 121 of the BNS, 2023, represents a bold legal tool to counter not only actual war efforts, but also the planning, plotting, and preparation that precedes such acts. In a time when enemies of the state operate through keyboards, crypto wallets, and clandestine cells—this section ensures the law stays one step ahead.

Its strength lies in its broad applicability—domestic and international, digital and physical. But its enforcement must always respect the fundamental rights and democratic values of the Indian Constitution.

📢 Next in Series:

➡️ Section 122 – Collecting Arms with Intent to Wage War: Criminal Preparations in the Digital Age

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