– Adeeba Hasan, Asad Naushad Khan
ABSTRACT
The intersection of warfare and legislation poses significant challenges in balancing national security with legal and ethical standards. Section 125 of the Indian Penal Code (IPC), which criminalizes waging war against an Asiatic power allied with or at peace with India, epitomizes this complexity. Rooted in colonial-era concerns, the provision’s ambiguous language, specifically terms like “Asiatic Power” and “waging war”, has led to varied judicial interpretations and raises questions about its applicability in modern geopolitical contexts. This article explores the historical context, key controversies, and contemporary relevance of Section 125, emphasizing the necessity for clear definitions to navigate evolving threats such as cyber warfare and terrorism. India’s active participation in international forums over the past decade highlights its evolving stance on global cooperation and security. However, certain ambiguous national laws pose challenges for the judiciary and impact the nation’s stance on international matters. The ambiguity in Section 125 creates difficulties in balancing contemporary problems, historical importance, and the ethical stance of the Constitution. The undefined terms “Asiatic Power” and “waging war” result in varied court interpretations, leading to legal uncertainties. This article delves into the historical origins of Section 125, which was designed during British rule to protect British interests in Asia. Today, its applicability is questioned due to the lack of clear definitions and the changing nature of warfare, including non-traditional forms like cyberattacks and terrorism. Case studies, such as the High Court of Kerala made a groundbreaking decision in Union of India v. Yasmeen Mohd. Zahid[1], illustrates how courts have interpreted the provision, emphasizing individual freedoms and the need for precise legal definitions. The Kerala High Court’s ruling, which determined that merely supporting the ideology of ISIS does not equate to waging war against an Asiatic power, underscores the need for clearer legal definitions. The case highlights the importance of defining what constitutes “waging war” to prevent unjust accusations and the need to specify which countries qualify as “Asiatic Powers.” Furthermore, the article discusses the broader implications of Section 125, intersecting with issues of human rights, freedom of expression, and political dissent. The evolving nature of conflicts and the rise of non-state actors necessitate constant adaptation and vigilance in legal interpretations. India’s commitment to maintaining peace and stability through diplomatic endeavors and strategic policies like the Look East and Act East policies further underscores the importance of clear and relevant legal provisions. In conclusion, Section 125 of the IPC stands as a testament to the complexities of law, geopolitics, and human behavior. Its evolution reflects the changing dynamics of international relations and the ongoing struggle to balance security concerns with individual rights and freedoms. As India navigates an increasingly interconnected world, it is imperative to continue scrutinizing and refining legal provisions such as Section 125 to ensure they remain relevant and equitable in the face of evolving challenges. The article argues that India must refine its legal frameworks to balance national security concerns with the protection of individual rights.
INTRODUCTION
India’s legal landscape is deeply influenced by its historical context, particularly its colonial past, and the need to address contemporary geopolitical challenges. One such legal provision that exemplifies these complexities is Section 125 of the Indian Penal Code (IPC). This section, which criminalizes waging war against an Asiatic power allied with or at peace with India, is rooted in colonial-era concerns but continues to be relevant today. However, the ambiguity in its language, especially regarding terms like “Asiatic Power” and “waging war,” poses significant challenges for the judiciary and impacts India’s stance on international matters.
Since gaining independence, India has evolved into a key player on the global stage, actively participating in international forums and contributing to global cooperation. Yet, certain ambiguous national laws, such as Section 125, create hurdles in navigating the intricate balance between national security, historical significance, and constitutional ethics. The undefined terms within this section lead to varied judicial interpretations, resulting in legal uncertainties that complicate India’s diplomatic and strategic endeavors.
Section 125 was originally designed during British rule to protect British interests in Asia by deterring actions against allied Asiatic powers. In today’s context, however, the provision’s lack of clear definitions raises questions about its applicability in modern geopolitical scenarios, where threats have evolved to include cyber warfare and terrorism. This article explores the historical origins of Section 125, its contemporary relevance, and the key controversies surrounding its interpretation.
As India continues to engage with the global community, it is imperative to refine legal frameworks like Section 125 to address evolving threats and geopolitical dynamics. Balancing security concerns with the protection of individual rights remains a crucial challenge. This article argues for a nuanced approach to legislation that ensures laws remain relevant and just, reflecting India’s commitment to maintaining peace, stability, and justice in an increasingly interconnected world.
HISTORICAL CONTEXT
The genesis of Section 125 can be traced back to the colonial era when India was under British rule. The provision was originally crafted to address threats posed by individuals or groups attempting to undermine British interests in Asia. During this period, the British Empire sought to consolidate its hegemony over various Asiatic powers, including territories in present-day India, Pakistan, Bangladesh, and neighboring regions.
ESSENTIALS OF SECTION 125
The essentials of this Section are:
- There must be an Asiatic State along with an international influence.
An Asiatic State refers to a nation located in Asia, which may have its own political, economic, and cultural influences within the region. However, it’s important to note that many Asian states also have international influence, meaning they exert some level of power beyond their borders, whether diplomatic, economic, or military. This could involve having alliances or trade agreements with other nations, participating in international organizations, or being involved in global affairs.
- Such a State should be other than India.
This suggests that the provision applies to situations where an individual or group is accused of waging war against an Asiatic State that is not India. In other words, if someone were to engage in activities aimed at overthrowing or destabilizing the government of an Asiatic State other than India, they could be charged under this section of the IPC.
- Such a State should be in alliance with or at peace with the Government of India.
A state’s affiliation with or alignment with the Government of India is a crucial aspect emphasized in this condition. It underscores the diplomatic ties between the mentioned Asiatic State and the Indian government. This clause becomes relevant when the Asiatic State in question is either allied with or in a state of peace with the Indian government. For example, India’s Look East Policy[2] has played a pivotal role in fostering robust economic and strategic partnerships with various Southeast Asian nations, like South Korea, Japan, and Taiwan. Additionally, India maintains cordial relations with countries in the Persian Gulf region like Iran, Iraq, Kuwait, Saudi Arabia, Qatar, Bahrain, United Arab Emirates and Oman (exclave of Musandam) Consequently, if an individual or group is found guilty of instigating conflict against an Asian state with which India shares amicable ties or a formal alliance, they would be subject to legal repercussions under this section.
India’s initial venture into strategic diplomacy began in 1991 with the inception of the Look East policy. This policy recognized the strategic significance of Southeast Asia for Indian security but was more of a visionary concept than a detailed plan of action. Subsequently, in 2014, India took a proactive stance with an introduction of the Act East policy which is a strategic initiative aimed at strengthening economic, strategic, and cultural ties with countries in the Asia-Pacific region. Launched by Prime Minister Narendra Modi, it builds on the earlier Look East Policy. Key objectives include enhancing trade and investment, improving connectivity and infrastructure, and deepening security cooperation with ASEAN countries, Japan, South Korea, Australia, and other nations in the region. The policy reflects India’s commitment to playing a larger role in the regional affairs of the Asia-Pacific and contributing to the region’s stability and prosperity. This shift marked a deliberate effort to engage with the region actively, aimed at countering potential Chinese influence. The Act East policy has witnessed India steadily strengthening its key partnerships across Southeast Asia, especially with nations along the maritime periphery of the Indo-Pacific region. These initiatives underscore India’s commitment to collaborating with its Southeast Asian allies who share its dedication to upholding the rule-based international order and established norms in the face of escalating assertiveness from China in the region.[3]
INTERPRETATIONS AND CONTROVERSIES
Over the years, Section 125 has undergone various interpretations and applications. One of the key controversies surrounding this provision is the ambiguity of the term “Asiatic Power.” While the language of the statute suggests a broad scope, encompassing all Asian nations, the lack of specific definitions has led to confusion and inconsistent judicial rulings.
Furthermore, the requirement of “waging war” has been subject to differing interpretations. Courts have grappled with defining the threshold for what constitutes an act of war, particularly in the context of modern warfare, which may include cyberattacks, terrorism, and other non-traditional forms of aggression.
CONTEMPORARY RELEVANCE
In the contemporary geopolitical context, Section 125 retains its relevance, albeit with adjustments to accommodate the intricacies of the modern era. The emergence of non-state actors, the spectres of transnational terrorism, and the looming threat of cyber warfare have mandated a reassessment of conventional understandings of warfare and national defence.[4]
This particular section serves as a deterrent against individuals engaging in clandestine activities aimed at reinstating deposed rulers or other similar objectives. The execution of the State’s responsibilities towards allies and friendly nations necessitates the prohibition of aiding such endeavors. Each sovereign entity is obligated to uphold the rights and sovereignty of other nations beyond its borders. However, it’s important to note that this provision doesn’t impede India’s sovereign prerogative to grant political asylum to ousted rulers.
Furthermore, this provision intersects with broader issues concerning human rights, freedom of expression, and political dissent. Critics contend that Section 125 might potentially be exploited to suppress legitimate forms of opposition or activism, especially when individuals express solidarity with movements perceived as antagonistic to Asian powers.
Expanding on these points, it becomes apparent that Section 125 embodies legal as well as ethical considerations regarding state conduct and individual rights. The complexities of modern geopolitics demand a delicate balance between national security imperatives and the protection of fundamental liberties. Moreover, the evolving nature of conflicts, with the proliferation of non-state actors and cyber threats, underscores the need for constant adaptation and vigilance in the interpretation and application of such legal provisions.
In a speech delivered at the Carnegie Endowment for International Peace (CEIP) in June 2005, Pranab Mukherjee, the then Indian Defence Minister, hinted at India’s approach to global issues. He emphasized the profound impact of events in the 20th century, particularly those rooted in imperial history, on India’s relationships with its neighboring nations. Mukherjee highlighted the partition of India as a pivotal moment, illustrating how it significantly altered India’s historical connections with the world.[5]
Viewed through this historical lens, Mukherjee suggested that the first half of the 20th century represented a departure from India’s traditional relationships with other countries. Colonialism disrupted these age-old ties, and the subsequent Cold War period further impeded their restoration. However, with the collapse of the Berlin Wall and the conclusion of the Cold War, Mukherjee identified an opportunity to revive India’s traditional connections, which had weakened during the Cold War era. He advocated for rekindling engagement with a broader and increasingly interconnected global community. This opportunity, he believed, offered India a chance to reaffirm its place on the world stage and forge stronger bonds with nations worldwide.[6]
CASE STUDIES
The interpretation and application of Section 125 has been significantly influenced by various legal cases. One such instance occurred in the High Court of Kerala, where a woman was accused of supporting the ideology of the Islamic State of Iraq and Syria (ISIS). The court overturned her conviction, asserting that mere alignment with ISIS’s ideology did not equate to waging war against an Asiatic Power.[7]
In a separate case, Midlaj v. Union of India[8] and Hamza U.K. v. Union of India[9], the accused was convicted under various sections, including Section 125 of the IPC, for allegedly conspiring to wage war against friendly nations like Iraq and Syria. The National Investigation Agency (NIA) claimed that the accused returned to India intending to carry out terrorist activities, including targeting the Mumbai Police Headquarters. However, no fatalities resulted from these alleged plans as the respondent was apprehended upon arrival in India.[10]
CONCLUSION
Section 125 of the Indian Penal Code embodies a complex interplay between historical legacies, diplomatic relations, and contemporary challenges. Its essentials underscore the intricate dynamics of India’s engagements with Asiatic states, reflecting the nation’s evolving geopolitical strategies. The provisions demand a nuanced understanding of international alliances and regional contexts, highlighting India’s diplomatic endeavors and commitments to maintain peace and stability. However, the interpretation of Section 125 has not been devoid of controversies, particularly concerning the ambiguity surrounding terms like “Asiatic Power” and the definition of “waging war” in modern contexts. These ambiguities have led to debates and inconsistent judicial interpretations, reflecting the ongoing evolution of legal frameworks amidst changing global dynamics. Section 125 of the Indian Penal Code stands as a testament to the complexities of law, geopolitics, and human behavior. Its evolution reflects the changing dynamics of international relations and the ongoing struggle to balance security concerns with individual rights and freedoms. As we navigate an increasingly interconnected world, it is imperative to continue scrutinizing and refining legal provisions such as Section 125 to ensure they remain relevant and equitable in the face of evolving challenges.
[1] (2019) 7 SCC 790.
[2] Amb (Retd) Dilip Sinha, India’s Look East Policy and Northeast, Central University of Mizoram, https://www.mea.gov.in/distinguished-lectures-detail.htm?505.
[3] Derek Grossman, India Is Becoming a Power in Southeast Asia, RAND OBJECTIVE ANALYSIS. EFFECTIVE SOLUTIONS, (July 10, 2023) https://www.rand.org/pubs/commentary/2023/07/india-is-becoming-a-power-in-southeast-asia.html.
[4] NM Khilnani, The Organization of the Indian Ministry of External Affairs, 23 India Quarterly, (1975).
[5] D Suba Chandran, ‘India’s Strategic Vision’ (CSIS, 1 September 2009) https://csis-website-prod.s3.amazonaws.com/s3fs-public/090201_bsa_chandran.pdf accessed 21 June 2024.
[6] Ibid.
[7] Yasmeen Mohd. Zahid, supra note 1, at 1.
[8] 2023 SCC OnLine Ker 998.
[9] 2023 SCC OnLine Ker 997.
[10] National Investigation Agency v. Areeb Ejaz Majeed, 2021 SCC OnLine Bom 239.
The writers are second-year BALLB (Hons.) students at the Faculty of Law, Jamia Millia Islamia, New Delhi.