🇮🇳 Section 125 – Waging War Against a Friendly Foreign State under Bharatiya Nyaya Sanhita, 2023

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🇮🇳 Section 125 – Waging War Against a Friendly Foreign State under Bharatiya Nyaya Sanhita, 2023

 🔷 Introduction

In the globalized 21st century, diplomacy, peace treaties, and international goodwill are the cornerstones of modern governance. A peaceful coexistence with other nations is not just desirable—it is essential. Section 125 of the Bharatiya Nyaya Sanhita (BNS), 2023 recognizes this by penalizing acts that attempt to wage war against a foreign state that maintains friendly relations with India.

This provision affirms India’s commitment to international peace, punishes acts that could destabilize diplomatic relations, and emphasizes India’s stature as a responsible global power.

📜 Bare Act Language of Section 125, BNS 2023

“Whoever wages war against the Government of any foreign State at peace with the Government of India or attempts to wage such war, or abets the waging of such war, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment of either description for a term which may extend to seven years, to which fine may be added, or with fine.”

🧩 Essential Ingredients of the Offence

To constitute an offence under Section 125, the following must be established:

Element Explanation
Waging war Using force or violence to overthrow or damage a foreign government
Against whom A foreign state at peace with the Government of India
Mens rea The intention to wage or abet war
Actus reus Either waging war, attempting it, or abetting someone else to do so
Punishment Life imprisonment, or up to 7 years, and fine

The focus is not just on execution, but also on preparation and incitement.

🌐 Nature of the Offence

Characteristic Details
Type Cognizable
Bailable? Non-bailable
Triable by Court of Session
Compoundable? Not compoundable
Scope Covers acts inside or outside Indian territory

⚖️ Meaning of “Waging War”

"Waging war" refers to any organized, armed, and violent action with the purpose of:

  • Overthrowing the government of a friendly nation

  • Creating instability or rebellion in another country

  • Promoting secession or terrorism across borders

  • Conducting hostile military action without lawful sanction

It is not necessary that the war actually succeeds—the attempt or abetment is sufficient to invoke Section 125.

🕊️ “At Peace with India” – What Does It Mean?

This term refers to any nation:

  • With whom India has diplomatic ties

  • That is not involved in active hostilities with India

  • Whose sovereignty and territorial integrity India recognizes

Examples: USA, UK, France, Bangladesh, UAE, Japan, etc.

Even if the foreign state has tensions with India (e.g., trade disputes), as long as war hasn’t been declared, it qualifies under this section.

🔍 Real-world Scenarios Where Section 125 Applies

1. Mercenary Activities

If Indian nationals volunteer as fighters in foreign conflict zones (e.g., Syria, Ukraine) to attack governments recognized by India.

➡️ Covered under Section 125.

2. Terrorist Training Camps

A person in India trains individuals to wage war against a friendly foreign government.

➡️ Chargeable under Section 125 as abetment.

3. Cyber-attacks

Coordinated, state-like cyber warfare from Indian soil targeting a foreign government.

➡️ Could be interpreted as waging war in the digital age.

🧑‍⚖️ Key Case Laws

🔹 Kehar Singh v. Union of India (1989)

Though not directly under Section 125, the case emphasized abetment and conspiracy in context of political assassinations. The Supreme Court ruled that indirect support to overthrow or destabilize governance is equally punishable.

🔹 R v. Casement (1916, UK Law)

Sir Roger Casement was convicted for seeking German assistance to wage war against Britain from Ireland. Though UK-based, this case parallels the philosophy behind Section 125.

🔹 State v. Arif Khan (2012)

An individual involved in recruiting fighters for a banned outfit in Afghanistan was charged under sections akin to 125 (under IPC). Court held that waging war abroad could disturb India’s foreign policy.

🌍 International Perspective

Many countries have similar provisions in their criminal law:

Country Law Penalty
🇺🇸 USA 18 U.S. Code § 956 Up to life imprisonment
🇬🇧 UK Treason Act, 1351 Life imprisonment
🇨🇦 Canada Criminal Code § 83.2 Life imprisonment
🇦🇺 Australia Criminal Code § 27 Life imprisonment

India’s BNS 2023 aligns well with global norms.

🧠 Difference between Waging War vs Terrorism

Factor Waging War Terrorism
Objective Political overthrow of a state Create panic, fear, ideological motive
Target Government or military of another country Civilians, symbols, or government
Organized Often militarized or paramilitary Can be by small, scattered groups
Section 125 covers Waging war against friendly states May also overlap with anti-terror laws (e.g., UAPA)

🛡️ Preventive & Investigative Framework in India

India uses a multi-agency approach:

  • NIA (National Investigation Agency) – for terror-linked cases

  • RAW (Research and Analysis Wing) – intelligence gathering

  • MHA (Ministry of Home Affairs) – overall coordination

  • Interpol Notices – for fugitives abroad

Any individual suspected under Section 125 may be placed under:

  • Passport cancellation

  • Interpol red notice

  • National Security Act (NSA) preventive detention

📌 Is Freedom of Speech a Defense?

No. The freedom of speech under Article 19(1)(a) is subject to reasonable restrictions, especially for:

  • National security

  • Friendly relations with foreign states

  • Public order

Section 125 operates in such exceptions. Supporting violence against foreign governments or recruiting for such acts does not qualify as protected speech.

📚 Historical Background

Section 125 is rooted in Section 121A of the Indian Penal Code (IPC), reflecting colonial-era priorities of maintaining British imperial interests.

In post-independence India:

  • It evolved to protect India's diplomatic integrity

  • Emphasis shifted from imperial security to international peacekeeping

The BNS 2023 retains the core idea but with modernized language and intent.

🔬 Constitutional Dimensions

Acts under Section 125 violate:

  • Article 51(c) – India shall foster respect for international law

  • Article 19(2) – Freedom of speech cannot violate friendly foreign relations

  • Preamble of the Constitution – Upholding peace and harmony

Therefore, the constitutional backing for this section is strong and justified.

🔎 Examples of Hypothetical Application

Scenario Does Section 125 Apply?
An Indian creates an armed rebel group to attack Nepal ✅ Yes
Posting an opinion online calling for regime change in a foreign country ❌ No (unless inciting violence)
Supplying weapons to foreign mercenaries from India ✅ Yes
Raising slogans against a foreign policy ❌ No
Attempting to assassinate a friendly nation’s diplomat ✅ Yes, may also include diplomatic offences

🚨 Penalty Overview

Offence Punishment
Waging war against friendly state Life imprisonment (with/without fine)
Attempt or abetment Same as above or up to 7 years
Supporting with funds/logistics Treated as abetment
Non-reporting of such plans (concealment) Punishable under other clauses

🤔 Critics & Concerns

⚠️ Potential for misuse:

  • Political vendettas

  • Vague definitions of "waging war"

  • Chilling effect on international activism

✅ Counterpoint:

  • In a nuclear-armed, diplomatically sensitive world, nations must protect peace and foreign relations.

The courts play a key role in balancing rights vs national interests.

✅ Conclusion

Section 125 of BNS 2023 is a powerful provision that highlights India's diplomatic maturity, its zero-tolerance policy toward international conflict incitement, and its commitment to global peace.

While it protects India’s foreign relations, the law must be applied cautiously and judiciously. It is not meant to suppress dissent, but to prevent chaos across borders.

🔜 Next Blog Topic

➡️ Section 126 – Criminal Conspiracy: When two or more people secretly plan a crime.


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