Offences Against The National Security

[Cites 183, Cited by 0]

Law Commission Report

Offences Against The National Security

 

LAW COMMISSION
OF INDIA

FORTY-THIRD REPORT

ON

OFFENCES AGAINST THE NATIONAL SECURITY



K. V. K. Sundaram New Delhi
August 31, 1971

Dear Law Minister,

I have pleasure in sending herewith the Fortythird Re-
port of the Law Commission on oﬂences against the national
security- The Report, as will be evident from its subject matter,
supplements the Commission's recommendation for revision of
the Indian Penal Code, as embodied in its 42nd Report.

2. As' we have done in our Report on the Code of Cri-
minal Procedure and on the Indian Penal Code, we have in this
Report added a draft Bill, together with a draft of the conse-
quential amendments which will be found necessary in the Penal
Code and the Code of Criminal Procedure.

Yours sincerely,
K. VJC. Sundaram

Shri H. R. Gokhale,

Minister of Law & Justice,

Government of India,

Shastri Bhavan,

New Delhi.



CHAPTER 1
INTRODUCTORY

REPORT ON THE OFFENCES AGAINST THE NATIONAL -

, . SECURITY

I.l. Treason is the gravest crime known to society and bythe
law of every country traitors are liable to the severest punish.-
ment. It is a crime directed against the very existence of the
State itself and is therefore peculiarly odious. "Treason is the
crime of betraying a nation or sovereign by acts considered dan-
gerous to its security. Sedition though it might have the same
ultimate objective as treason refers generally to the offence of
organising or encouraging opposition to Government in a man-
ner (such as by speech or writing) that falls short of the more
dangerous acts constituting treason."1

1.

2. While revising the Indian Penal Code, we considered the question of the adequacy of the law of treason with reference to the consolidation of the law which at present is scattered in several special Acts. We observed in our Report1 on the Indian Penal Code------

"6.4 We notice that treason, sedition and cognate olfences which may be classiﬁed as offences against the secu- rity of the state, are dealt with in foreign codes in much greater details than in our Penal Code. In particular, it is noticeable that treason and trcasonable activities are spelt out elaborately, and not limited to waging war against the Government and assaulting the Head of State. On a pre- liminary study of the problem, we have come to the con- clusion that the strengthening, consolidation and revision of this important branch of the criminal law should be taken up as a separate project and studied in depth". ' 1.3. In February, 197], the Ministry of Law-"' also had re-- quested the Commission to "consider the enactment of a self» contained law on treason relating to substantive as well as pro-- cedural matters and the preparation of a self-contained law on this subject." After submitting the Report on the Penal Code, the Commission therefore made a detailed study of the various enactments in force relating to treason and allied activities and also the corresponding law i various other countries available here. This Report contains t e recommendations of the Com- mission on the subject.

The crime of treason.

Genesis of the Re-

port.

Suggestion to conso-

lidate the law.

1. Encyclopaedia Brittannica, Vol. 22, p. 196.

2. 42nd Report, para. 6.4. The Report was submitted to the Governsrnent in June, 1971.

3. Vide Law Sec:-etary's letter No. Law Secy. 95171, dated 20-2-197).

Scopeof treason.' Title of National Security Act recom-

mended.

Existing Central Acts on the subject.

Foreign Recruit-

ment Act.

1.4_. The expression 'treason' in its narrow and restricted sense is generally applied to those very serious offences which directly and dangerously affect the security and integrity of the State. Thus, waging war against the State, adhering to its enemies, compassing the death of the Head of State and such other offences usually described as 'high treason' will come within this narrow sense. But the crime has also been treated inits widest aspect as including not only high treason but also other acts of disloyalty which have the effect of directly or in- directly endangering the security and integrity of the state.- We notice that vrhile in Britain and U.S.A. treason is generally re- stricted to- what may be conveniently described as high treason. in other foreign countries where codiﬁed penal law is in force, various other acts of disloyalty of lesser gravity have also been included under this class.

1.5. We consider that the expression "crime against national security" conveys more comprehensively the idea of treason in a wide sense, and hence recommend that the consolidated law on the subject may be entitled "The National Security Act".

1.6. The various enactments in force in India dealing with offences against the national security are ;--

(o chapters 6 and 7 of the Indian Penal Code;

(ii) the Foreign Recruiting Act, 1874;

(iii) the Oﬂicial Secrets Act, 1923;

(iv). the Criminal Law Amendment Act, 1938;

(_v) the Criminal Law Amendment Act, 1961; and

(vi) the Unlawful Activities'(Prevention) Act, 1967.

Of these chapters 6 and 7 of the "Indian Penal Code have been fully considered by us in our Report on that Code. We have recommended! therein that the Criminal Law Amendment Act, 1938, shouldbe included in chapter 7 of the Code. A brief summary of the other statutes on the subject will be useful.

\ \ 1.7. The Foreign Recruiting Act, 1874 deals mainly with re- cruitment in India for service in a foreign state. The deﬁnition of "foreign state" is very wide and will include all countries beyond the limits of India, including not only de jure Govern- ments but also de facto Governments. Recruitment for service in such foreign states has an indirect but close bearing on national security and hence should ﬁnd a place in the proposed law.

1.8. Reference should also be made to the foreign Enlistment Act, 1870, an Act of the_British Parliament which, though not formally repealed, is-of doubtful application to India; since the "1. 42nd Report, para. 7.10.

.3 Constitution. This Act regulates the conduct of British sub- jects throughout Her Majesty's dominions during theiexistence of hostilities between foreign States with which. the British Crown is at peace. It is obvious that similar legislation should ﬁnd place in our statute book. 1 Like recruitment for a. foreign State, enlistment for service in a foreign State has also an indirect but close bearing on national security.

1.9. The Official Secrets Act, 1923 is the main statute for ﬁght- ing espionage activities which vitally alfect the national security. The main offences created by this Act are as follows:--

(i) "spying", or entry into a prohibited place etc., trans-

mission or collection of secret information, and the like;

(ii) wrongful communication of, or receiving secret information of the speciﬁed type;

(iii) harbouring spies;

(iv) unauthorised use of uniforms, falsiﬁcation of re- ports etc., in order to enter a prohibited place, or for a pur- pose prejudicial to the safety of the State;

(v) interference with the police or military, near a pro- hibited place.

1.10. The primary object of the Criminal Law Amendment Act, 1961 is to punish persons who question the territorial in- tegrity or frontiers of India in a manner prejudicial to the safety and security of the country. Though there is undoubtedly neces- sity for retaining some of these provisions which have a direct bearing on national security and integrity, in view of the pas- sing of the Unlawful Activities (Prevention) Act, 1967, some of the provisions of the earlier Act may not be necessary. This question will be considered at the appropriate place.

1.11. The Unlawful 'Activities (Prevention) Act, 1967 was passed for the effective prevention of disruptive activities, whether they are in support of cession of a partiof the territory of India, or in support of the secession of a part of the territory of India from the Union, or otherwise disclaim, question or disrupt the sovereignty and territorial integrity of India. It deals with such activities of individuals and also of associations. Its provisions as to unlawful associations are detailed and elaborate.

1.12. That this Act constitutes a vital link in the chain of enactments of importance to national security, cannot be doubted. Activities intended to "detach a part of the territory of a coun- try".(as described in some of the foreign Penal Codesi ) stand Ofﬁcial Secrets Act.

Criminal Law Am-

endment Act, 1961.

Unlawful Activities (Preven-

tion) Act.

Its impor-

tance.

1. Cf. 5th Report of the Law Commission, British Statutes Applicable to India, page 50, item 87.

' 2. 13.3. section 80 0' the German Penal Code provides that anybodywhu by force or threat of force undertakes to detach a part of the territory therefrom shaIl"'be' guilty of high treason. Article 101 of the Yogoslav Penal Code punishes acts aimed at detaching a socialist republic, autonomous unit or any part of the territory from Yugoslavia by Force or in any other unconstitutional way.

Advan-

tages of consolida-

tion.

4| at the apex of treasonablc activities. They go much beyond the formation of a parallel Government or acts of overthrowing the t_Ci_ove.i'ii_ment, which are the subject matter of' some of the provisions in Chapter 6 of the Indian Penal Code. Such acti- vrt1es,_1f successful, would bring into existence 3 parallel nation with its own "sovereignty and territorial integrity" which will be a rival to the country from which the territory is "detached".

There is, therefore, enough justiﬁcation for bringing the oﬂences covered by this Act within the fold of legislation on national security}-

L13. Apart from the aforesaid statutes, there are provisions in other Acts mainly of a procedural nature which have a bearing on national security and integrity' but as they form part of special statues, dealing with other subjects also, we would not recom- mend their incorporation in the new law.

1.14. The ﬁrst question we have to consider is whether there is a really necessity for a separate consolidated law on the sub- ject, or else whether the aforesaid statutesl maybe allowed to remain as before. The main advantages of -consolidation of statutes are these:---

(1) Consolidation diminishes the hull: of the statute book and makes the law easier for those who have to adminis~ ter it (including Judges, administrators, the Bar and the liti- gant public}; for they have only one document to consult instead of two or more.

(2) The consolidated Act speaks from one and the same time, and thus the convenience arising from the interprets- tions of sections of various Acts speaking from dilferent times is avoided. The art of legislative drafting has altered very much during the last century and the language 'used, the length of the sentences, the arrangement of the clauses and the sections may have to be drastically altered to conform to modern style of drafting. This applies specially to the Foreign Recruiting Act and the Official Secrets Act which will, in any case, require revision.

(3) Some of the provisions of the earlier Acts may have to be omitted as unnecessary.

1. It appears that the constitutional validity of this Act is under challenge in tw--o_ writ petitions (Nos. 60 and 8| of 1971}, which have recently been admitted by the Supreme Court. But we may proceed on the assumption that Act is constitutional until the Supreme Court holds otherwise.

2. (ii) The Dramatic Performances Act, 1876, 5.?-lb), {I3} Sections 99!. to 99G and section 108 of the Code of Criminal Procedure, 1898.

In addition to these advantages. there arises an opportunity of incorporating in the new Act some of the provisions of the foreign code; dealing with national security which may be suited for Indian 'conditions also. For these reasons, we are of the View that there should be a consolidated statute entitled the National Security Act.

1.16. Another question is whether the new law should be a separate enactment, or else, whether it could be inserted as a separate chapter in the revised Indian Penal Code. It is true that crimes affecting national security form an essential part of the criminal law of the country, and we ﬁnd that in many Foreign codes, these crimes are included in 2 separate chapter in the penal Code. But we consider it desirable to pass separate legislation on the subject, for the following rca.sons:---

(1) A special rule of Iirnitationl may have to be presided for some offences affecting national security.

(2) The necessity of obtaining sanction from the Govern- ment before initiating prosecutions for offences under the new law is a special feature, not found in respect of most of the offences under the Penal Code.

(3) In some other respects also, the provisions of the Criminal Procedure Code may have to be modiﬁed in their application to offences under the new law.

(4) The rules of evidence ordinarily applicable for trial of criminal cases will have to be very much modiﬁed in their application l'or_the trial of some of the offences under the new law.

These reasons make the new law distinguishable from most of the provisions of the Indian Penal Code and it may, hence, be somewhat incongruous it" the new law is introduced as a separate chapter in the Indian Penal Code. We therefore re- commend separate legislation on the subject.

Form of the new law.

l. See Chapter 11 below.

CHAPTER 2 CoNsrrro'r1oNAL As1=ECrs, Exrsnr AND APPIJCATION C_0nStitI1-. 2.1. While our comments on the various chapters of the 33331 "'5; National Security Billl annex_ed to this Report will be given in some pm_ the succeeding chapters of this Report, we consider it desirable visions ex- to refer here to two possible constitutional grounds on which atnined the validity of some provisions of the Bill might be challenged. with refe-

l'6IlC-B l'.O 'public cl'-

der" and 'security of the State'. -

panda- 2.2. The ﬁrst is that these provisions are inconsistent with the mental fundamental rights guaranteed under clause (1) of article 19, n'shts- especially the right of freedom of speech, the right 'to assemble peaceably and without arms and the right to form associations or unions [sub--clauses (a), (b) and (c) respectively] 'We have no doubt that, as the Bill is drafted, the provisions are saved by clauses (2), (3) and (4) of article 19. They are entirely reasonable restrictions in the interests of sovereignty and integrity of India, security of the state and friendly relations with foreign states. Izsislaﬁvc 2.3. The second possible ground of objection is that some t°°mP"" of the provisions relate to 'public order' which is exclusively in en" the State legislative ﬁeld {Entry 1 of List 2) and consequently outside the legislative competence of Parliament. The expression 'public. order' mentioned in Entry 1 and List 2 and referred to in clauses (2), (3\ and (4) of article 19 is capable of a wide, or of a narrow, construction according to the context. Ifa wide construction is given, provisions dealing with the security of the state may be held -to fall within 'public order'. But, as observed by the Supreme Court in Romesh Thapar3----

"The Constitution thus requires a line to be drawn in the ﬁeld of public order or tranquility marking of, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of state and the relatively minor breaches of the peace of a purely local signiﬁcance treating for this purpose differences in degree as if they were differences in kind."

1. Appendix I.

2. Ramos}: Tlrapar v. The State of Madras', (1950) S.C.R. 594: A.I.R. 1950 S.C. 124,

128. 129.

6 7

These observations of Patanjali Sastri J. (as he then was) were cited with approval in Dr. Lohia's case' in the following; terms:

" 'Public order' is synonymous with public safety and tranquility: it is_ the absence of disorder involving breaches of local signiﬁcance in contradistinction to national upheavals, suchsas revolution, civil strife, war aﬁecting the security of the tate." ' In a later case,' Gajenclragadkar J. (as he then was), observed:

"So far as clause (2) [of article 19] is concerned, security of the state having been expressly and speciﬁ. ally provided for, public: order cannot "include the security of state, though in its widest stnse it may be capable of including' the said concept."

2.4. There is thus suflicient judicial authority to support the Provisions view that the expre..sion 'public-order' in Entry I of List 2 should 119* failing normally be given a narrow meaning, EL referring to the absence 1""

of disorder and involving relatively minor breaches ofthe peace order. in of a purely local signiﬁcance, in eontradistinction to thosr serious the nar- and aggravated forms of public disorder which are calculated. "rower . to endangtr the security of the state. We are satisﬁed that none of the provisions of the Bill will come within the scope of 'public order' in the narrow sense, and hem: the legislative competence:

of the Parliament may 'be taken as unassailable.

It is true that the subject 'security of state' does not ﬁgure: either in List I or in List III; but it may be taken as included in the expression 'defence of India' (Entry 1 of List I). which must. includi defence, not only from external aggression, but also from extensive internal insurrection and public disorder of a. violent type spread over a large area. We may, in this connec- tion, also refer to two articles of the Constitution which lend support to the above interpretation. Article 352(1) relating to the Proclamation of Emergency describes the situation in which the President can issue such a Proclamation as 'a grave emergency . .whereby the securiryof India or any part of the territory thereof' is threatened, whether by war or external aggression or internal"

disturbance'. Similarly, article 355 provides that it shall be the duty of the Union to protect every state against "external aggression and internal. disturbance". In any case, it can_ also' be brought under the residuary power of legislation mentioned in article 248. ' 2.5. The territorial extent of the new law may now be consi- Extent of dered. Of the various Acts whose provisions are to be incorpo- '1'? new rated in the new law,'the Unlawful Activities (Prevention) Act, W' 1967, the Foreign Recruiting Act, 1874, and the Official Secrets

1. Superintendent, Contra! Prison v. Ram Martohar Lama, (1960) 2 S.C.R. 321; A.I.R. 1960 so. 533, 541, para 18.

2. 0.1:. Ghosit v. Ex. Joseph, (1963) Suppl. i_s.c.R. 139; A.I.R. 1963 s C. 312. 314.

I Oﬁcnccs under the Pena Code.

Reoom-' mendauon.

Two alter-

natives as to exter-

ritorial a1:-~ plication.

»- in List I or List 11.

Act, 1923, extend to the whole of India1 including the State of Jammu and Kashmir. It appears to us that the provisions of these Acts fall under Entries I and 2 of the Union List, supported if need be by entry 97. Entries 1 and 2 apply without any modi- ﬁcation to the State -of Jammu & Kashmir. As regards entry' 97 it has in its application to this State been modiﬁed as t'o1lows:«--

"9'l'. Prevention of' activities directed towards disclaiming, questioning or disrupting the sovereignty and territorial integ-ity of India or bringing about cession of a part of the territory of India or secession of a part of the territory of India from the Union or causing insult to the Indian National Flag, the Indian National Anthem and this Constit1_:tion."

The modiﬁed entry clearly covers the Unlawful Activities (Prevenlzionj Act, 196?.

2.6. The subject-matter of Chapters 5 and 7 of the Penal Code which are to be incorporated in the new law also falls within Entry 1 and Entry 2, respectively, of the Union List. Though these matters pertain to "criminal law" and fall within "matters included in the Indian Penal Code at the commence- ment" of the Constitution (Concurrent List, entry 1:, they relate prirnai-il_v to the Union List, entries 1 and 2. The entries in the Concurrent List are to be read subject to those in the Union List-1. Moreover, Concurrent List, entry 1, expressly excludes offences against laws with respect to any of the matters speciﬁed There should accordingly be no constitutional diﬂiculty in extending those provisions also to the whole of India including the State of Jammu and Kashmir.

2.7. 'We, therefore, recommend that the new law should extend to the whole of India.

x 2.3. In our Report on the Indian Penal Code,-" we examined the general question of the exterritorial application of the criminal Laws of the land, and recommended that so far as that Code was concerned, its extcrritorial application to aliens should be limited to acts committed by them whilst in the service of the Govern- ment and relatable to oifences committed either in connection with their service or punishable under Chapters 6, 7 or 9 of the Penal Code. As to the exterritorial application of the National Security Act, two alternative courses are open to us. We may either adopt the same type of application clause as that proposed by the Indian Penal Code, or else, we may widen it so as to include all olfences against national security cornrnitted outside India by aliens whether or not they are in Government service.

1. The Unlawful Activities Act was amended in 1969 so as to extend it to the whole of India; the other two Acts were amended by the Part B Slates Laws Ac: (3 of' ISIS]: so as to extend their: to the whole ot' Indie.

2. Cf. fndu Bhzofmu 1:. Rome Sartdari, £1968'. 2 S.C.C. 289.

3. 42nd Report, paras. 1.12 to LED.

2.9. The second view is not so fantastic as may appear at Protected ﬁrst sight. Though Anglo-American jurisprudence is reluctant '"'.°T°.3' to extend the principle of exterritoriality to acts committed by pm°'p'°' aliens abroad, world opinion seems to be veering round to the view that where the security of a state is involved, widest extern- toriality must be given. This is based on what is known as "protected interest principle" and, in the Harvard Researches in International Law, one suggestion as to exterritoriality was as follows' :--

"A state has jurisdiction with respect to any crimes committed outside its territory....by an alien against the security, territorial integrity or political independence of that State, provided the act or commission which constitutes the crime was not committed in exercise of a liberty guaranteed to the alien by the law of the place where it was committed."

2.10. This principle has been accepted in the Penal Codes of .P1'°"I;i9'°.'1"

several nations. Thus in France3 it is provided that "every '(§'°dc';"°'g"

foreigner who outside the territory of the Republic renders based on himself guilty, either as perpetrator or as accomplice of a felony thc_ pro- or misdemeanor against the security of the state or the counter- *°'§'W.¢ felting of the seal of the state or current national monies, may he """°'p1°' prosecuted and tried according to the provisions of French law if he is arrested in France orif the Government obtains his extradition".

The German Penal Code provides3 that "Regardless of the law of the place of commission, the German Criminal law is applicable to. . . .conduct amounting to high treason or treason against the German Federal Republic or one of her member States, as well as felonies of constitutional treason." ' In the Swiss Federal Penal Code, 1942, article 4 provide:

that "whoever commits in a foreign country any felony or mis-- demeanor against [Switzerland], carries on an illegal news service:

establishes an illegal organisation, or disturbs military security shall be subject to this law."

In the Draft Penal Code of Japan it is proposed in Article ii that "the Code shall apply to an alien who, being outside Japan, commits a crime against the State of Japan or a Japanese national, punishable by death, or imprisonment or conﬁnement for life or for a maximum term of ﬁve years or more: provided that this shall not apply when such act is not criminal under the law of the place of olfence."

1. Harvard Researches in International Law---Jurisdiction with respect to crimer---Draft Convention (reprinted in (1935) 29 American Journal of International Law, (Supplement), pages 435-438), Article 'i'(c).

2. Section 694 of the French Code of Criminal Procedure, 1958.

3. Section 4, para. 3.

Dcsirabi--

lity of wider _ al-

ternatave considered.

Anglo-

American practice.

Special case of alien entering the country for a pur-

pose preju-

dicial to national security.

2.11. A}. ﬁrst sight, it may seem desirable if we also adopt a similaryextent clause for offences involving national security and malts it penal for any alien to commit a-ngyoifence under the National ,Sec_ Eity Act even outside India. 7 Daubtless there will be_ iﬁcul hes in enforcing this provision','unles_s he is subse- quent! __ 'ound in India orelse he is extradited ,a¢CCi1'ding__ to law. It won d indeed be extremely dilﬁcult to enforce such a provision and it may remain a dead letter on the statute book.

2.12. It will be useful to refer the well-known case of Joyce v. .D.P.P1. In that case the Lord Chancellor Lord Jowitt referred in wide :terms_to the following principleiiof exterritoriality in respect of thmerime of treason in the following terms:

"No principle of comity demands that a State should ignore the crime of treason _committed against it outside its territory. On the contrary, a proper regard for its own security requires that those who committed that crime whether they committed within or without the realmi should be amen- able to its laws." ' Having laid down this general proposition, the House of Lords, however, convicted Joyce of treason on the ground that, though he was an alien who committed _the act outside Britain, nevertheless during the relevant period he held a British passport and thereby owed allegiance to the British Crown. It is true

-that this judgement has raised some controversy in legal circles.

But neither England nor the United States appears to have gone to the extreme limit of applying the law of treason for aliens committing the crime outside their territories, unless allegiance to the country could be established either by the holding of a passport or otherwise.

2.13. If, however, an alien enters into our territory for the purposeof completing an'oﬁ'enoe involving national security for which he has made preparations abroad, he may be guilty by the express language of some of the provisions 'new ause the act of entry with that intention may itself be an overt act suﬂicient to fasten the guilt on himl. This View seems to prevail in U.S.S.R3. "The textbooks' consider a foreign citizen who enters the Soviet Union with the intention of committing a crime for which he has made preparations abroad, as punishable according to Soviet criminal law (e.g. espionage or srnuggling)".5 l.*J0)'CE V. D.P.P.. (1946) 1 All ER. 186, I92 (H.L.).

2. Compare. provision suggested below as to inﬁltration for a purpose prejudicial to the national security.

3. EJ. Feldbrugge, Soviet Criminal Law (1964). being Vol. 9 in the Series, Law in Fas- tern Europe, (University of Leyden) at page 68.

4. The refeience is to a textbook in the Russian language Soviet Criminal Law, Gen- eral Part, Edited by V.M. Chkhikvadze, Moscow, (1959).

5. In a footnote it is added "It is doubtful whether this view can still be held under the new legislation."

2.14. We do not therefore recommend the Widest form of territoriality for offences under the National Security Act. The application clause recommended by us for offences under the Indian Penal Code may be followed, and sub-clause (3) of clause 1 of the Bill may read:--

"(3) It applies also outside India-»

(a) to' eitizens of India; I (19) to aliens on any ship or aircraft registeretl in India; and

(c) to aliens in the seryice' of the Government."

Recom-

mendation as to ex-

territorial application.

Introduc-

tory.

Existing offences connected with wag-

ing war, etc. Preventing by force exercise of the autho-

rity of a State.

CHAPTER 3 INSU'RREC'I'l0N ' 3.1. We shall now deal with the offences to be included in the consolidating law. The ﬁrst group of such offences should deal with direct internal opposition to the authority of the State.

3.2. The most important of such offences is "waging war"

against the Government of Indial, or "levying war" as it is described in England, Canada and other Commonwealth countries. Preparation to wage such wari, and concealing a design to wage such war3, are connected offences. Then, there are less grave forms of opposition, illustrated by the offence of conspiracy to overawe the Government of India', or of any State, or the Parliament, or a State Legislature.

Opposition to the established Government may manifest itself in the form of a physical assault on its functionaries and other dignitaries.-" All these crimes are provided for in Chapter 6 of the Indian Penal Code, and the relevant provisions as propos- ed to be revised in our Report on the Code'. could be collected under the head "Insurrection".

3.3. In acfdition, we recommend a new provision to punish those who prevent, or attempt to prevent, by force the exercise of the authority of a State in furtherance of an inter-State dispute. During the last decade, there have been occasions for apprehend- ing a threat to the country's security from certain centrifugal forces, which aim at the disintegration of the country. Article 19(2) of the Constitution was amended in order to ensure that the freedom of speech and expression' is not abused by the propaga- tion of views supporting such tendencies. Two Central Acts, the Criminal Law Amendments Act, 1961 and the Unlawful Activities (Prevention) Act, 1967 have been enacted to deal with the menace to the country's integrity from such sources. A corresponding provision to protect the territorial integrity of States has not been considered necessary. Logicnlly, there ought to be adequate protection against any resort to force for preventing a State from exercising its lawful authority within its territory. Movements for the alteration of boundaries of a

1. Section 121, I.P.C. {No change in the 42nd Report).

2. Section 122, I.P.C., as amended in the 42nd Report

3. Section l23, I.l_'.C., as amended in the 42nd Report.

4. Section 121A, I.P.C., renumbered as section 12313, and amended in the 4.'2nd Report.

5. S124, I.P.C., as substituted in 42nd Report.

6. 42nd Report, Chapter 6.

I2 13 State or disputes which arise between two States should be pursu- ed in a constitutional manner and not by violent means. If by the use of force a State is prevented from exercising its authority over a particular area within the State, the security of the State, and consequently, the nation's security is gravely jeopardised. Any such activity should be punishable as a grave offence. _ Such a provision would not be an innovation, since we ﬁnd it in the Penal Codes of a few countries'.

The new provision may be as follows:

"Whoever, by means of force or show of force, prevents or attempts to prevent any State from exercising its authority in any part of the territory of that State, with a View to secu ting an alteration of the boundaries of that State or in furtherance of a dispute between" that State and another State, 'shall be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to ﬁne."

3.4. In some countries, there are special provisions against the assumption of dictatorial powers, intended perhaps to prevent the resurgence. of movements like Nazism and Fascism. Thus, the Penal Code of Argentina1 penalises any member of the Con- gress who gives dictatorial powers to speciﬁed persons or bodies of persons.

Similarly, the Draft German Penal Code3 has a section en- titled "preparation of a Despotism" punishing anybody who un- dertakesto promote groups set up for the purpose of subversion, violence, etc. and who thereby pursues eliorts directed against the existence of the Federal Republic or constitutional principles.

3.5. We considered the advisability of adopting some such provision against the possible assumption of dictatorial p0VtCl'S by any group of persons. We came to the conclusion that so far as the criminal law is concerned, it would be preferable to check speciﬁc acts which are in the nature of various steps-in--aid for such attempts at assuming dictatorship, than to punish the ﬁnal assumption of dictatorial powers. ll" the attempt succeeds, the provision will not be needed. if it has failed, it will not be difﬁcult to establish the offence ofattempt to wage war or prepar- ing to wage war, for that is what the act really amounts to.

3.6. The subject of treasonable acts against a State which forms part of a Federation is an interesting one, and we went into the question how far our law covers such acts. There was in fact. a suggestion that section l2l, Indian Penal Code, should make Penalty for assuming dictatorial powers.

Treason against a State unit of a Fede-

ration etc.

1. (a) Articles 100 and l0ll_l) of the Yogoslav Criminal Code. (bl Article 93(1) of the Denish Penal Code. (C) Article 229 of the Argentina Penal Code.'

2. Section 227, Penal Code of Argentina.

3. Section 369, Draft German Penal Code. 34M of .Law/7,l ---2 Offences to be included in this group.

punishable the waging of war not only against the Government of India but also against a State Government.

We looked into the position in other federal countries in this respect._ The Argentinian Penal Code provides1 that "anybody who,' without rebelling against the national government, arms one provi_nce_against another, or takes arms in order to change a local constitut1on,'or to overthrow any provincial or federal territorial government or sub-division thereof, or to force out or' any such government or sub-division thereof any measure or. concession. or to'prevent, although temporarily, the free exercise of its legal functions, or the formation or renewal in the time and ways es- tablished by law, shall be punished by jailing from one to three years". The matter has received some attention in the United States also.

We are not convinced, however.

suffers from any deﬁciency from the practical point of view. Conspiracy to overawe a State Gmernment or Legislature and exciting disaffection against a State Government or Legislature are proposed to be severely penalised.' Even if the violent action goes beyond the stage of conspiracy, the maximum punishment provided for conspiracy will suﬂ'ice for the completed offence. We, therefore, do not recommend any additional provision on the subject.

that the present law 3.7. In the result, the following offences will be inciuded order the heading "Insurrection":----

l. Waging war against the Government of India.

2. Preparation to wage war.

. Concealing design to wage war.

4. Conspiracy to overawe the Government, Parliament etc.

5. Preventing by force exercise of State authority in furtherance of inter-State disputes.

6. Assault on the President and other high dignitaries.

Constitutional Orifcr, Chapter 2, Sedition. The preceding titlc~Titlc 9--deals with I:t'in1e=a against the security of the Nation.

3. See clauses 6 and 39 of the proposed National Security Bill.' I. section is contained in Title 10, Crimes against the Governrncnt and the CHAPTER 4 Asstsrn-to _THi-: ENEMY 4.1. The preceding Chapterl was mainly concerned with direct opposition to the State from within. Threats from without form the subject matter of this Chapter.

4.2. The most direct of such threats arises from «the act of giving assistance to lndia's enemies. In our Report? on the Penal Code, we have brought out the defect in the existing law on the subject, and recommended the insertion of a provision for punishing a person who assists India's enemies or the armed forces of a country whose armed forces are engaged in hostilities with India, whether or not war has been declared between that country and India. ltis appropriate that that provision should form the first section in the group of sections with which we are now concerned.

4.3. Whileidirect assistance to the enemy country would be covered by the above provision, the law has also to take into account activities which represent an earlier stage of collabora- tion with a hostile power. Such collaboration may take various forms, and some of the acts of collaboration may fall within the corners of the Official Secrets Act. There is, however, a residue ofconduct which, though deﬁnitely inspired by a purpose prejudi- cial to the national security and aided usually by a hostilp power, requires to be checked. \ 4.4. It is well known that prior to the state ofdircct assistance to the enemy and much earlierthan the commencement of war or direct hostilities, clandestine measures are resorted to in order to carry on. later, activities prejudicial to the national security. Those prejudicial activities themselves would be punishable under the relevant speciﬁc penal provisions, such as, sabotage, espionage. sedition, or incitement of disaﬁection among the members of the armed forces. But the mere act of inﬁltrating into the country for carrying out those nefarious activities is at present not punish- able.

4.5. During recent times, inﬁltration into India with the object of doing acts prejudicial to security has been on the increase. Such act should obviously be checked at the very inception. The Foreigners' Act etc. and similar laws, are designed primarily for other purposes. The technical offence of illegal entry (i. e. entry without a valid travel document) or similar acts, which may be punishable under those laws, are quite different from an in- ﬁltration with a sinister motive.

1. Chapter relating to waging of war and connected offences tfhapter 3)

2. 42nd Report, Para. 6.7, and Bill annexed to the Report, section 123./\.

I5 introduc-

tory.

Assisting lndIa°s enemies.

Collabora-

tion with hostile cotmtrics.

Inﬁltration.

Offences concerned with priso-

ners of war.

_ 4.6. We consider that unlawfully entering into, or remaining in, the Indian territory, with the object of committing an offence against the national security, should itself be an oﬂenee. Such acts are preparatory to, and pave the way for, more harmful activities, and there is enough justiﬁcation for the law punishing frughdacts, provided, of course, the prejudicial purpose is estab- IS e .

4.7. Exactly parallel provisions are not found in foreign Codes. But it is of interest to ﬁnd in the Yugoslav Criminal Code' which punishes with "strict imprisonment" any one who "inﬁl- trates himself into the territory of Yugoslavia for the purpose of carrying out hostile propaganda". Hostile propaganda is de- ﬁned comprehensively in the same section to include all types of subversive or treasonable propaganda affecting the national security.

A writer on Soviet Criminal Law1 says thatftihe text--books3 consider a foreign citizen who enters the Soviet Union with the intention of committing a crime for which he has made prepara- tions abroad, as punishable according to Soviet criminal law (e.g. espionage or smuggling)". But he adds in a footnote that ,"it is doubtful whether this view can still be held under the new legisla- tion".

We think, however, that the provision which" we are proposing below is justiﬁable on the principle that the offender has been guilty of preparation for a crime against which the State has right to act in the interests of protection of its security.

4.8. The new parovision may be on the following lines :--

"Whoever unlawfully enters into, or remains in, lndia for the purpose of committing an offence under this Act shall be punishable with rigorous imprisonment for a term which may extend to ten years. and shall also be liable to ﬁne."

4.9. If a war does take place with an external power. and pri- soners are captured. the question of preventing their escape arises. There are provisions in the Penal Code concerned with the escape of prisoners of war'. These penalise any person who aids the escape of or rescues or harbours a prisoner of war, or a public servant who voluntarily allows or negligently suffers a prisoner of war to escape. These acts. usually committed -in the course of or after hostilities, are proper for inclusion in the group under discussion.

1. Section 118. p

2. FJ. Feldbruggc. Soviet Criminal Law (I964), being Vol. 9 in the Series. Law in Eas-

tern Europe (University of Leyden}, page 68.

3. The reference is to a Text-book in the Russian |anguage--Soviet Criminal Law, General Part, Edited by \'.M. Chkhikvadzc. Moscow (1959)

4. Section 128 to 130, Indian Penal Code.

4.10. In the result, the following oﬁences will be "included in 0ff'==nCﬁST0 the Chapter:---- ' .b'""°]"d'id 1n ll1lS

(l) Assisting India's enemies; g'°"P- {2} Inﬁltration for committing offences against national security;

(3) Alclingicscape of, rescuing or harbouring prisoner of war;

(4) Public servant voluntarily allowing prisoner of war to escape; ~ \ (5) Public servant negligently suffering prisoner of war to escape.

1 , Introduc-

tory.

Offences connected with war or depreda-

tions on foreign States.

CHAPTER 5 RELATIONS WITH FOREIGN STATES 5.1. Indian statute law is not unfamiliar with legislative pro- visions on the subject of relations with foreign States. For some time, the statute book had a speciﬁc Act on the subject'. The Penal Code has a few provisions intended to act as a deter- rent against waging 'war or depredations on foreign states which are friendly with Indiaz. The Constitution, while guaranteeing the freedom of speech and expression, expressly per.mits3 reason- abie restrictions in the interests of friendly relations with foreign states'. One of the grounds on which the Government can pro- hibit the import of a book under the Customs Act" is the main- tenance of friendly relations with foreign States. The primary reason why the matter did not receive prominent attention during the last century was, perhaps, the political status of the country and the comparative infrequency of occasions raising questions involving such relations.

5.2. There is of course no doubt as to the close connection between friendly relations with foreign States and national security. The maintenance of friendly relations with foreign States is of vital importance for the protection of the country mainly from external danger. Protection from internal danger also cannot be wholly ruled out because a hostile foreign power may try to create internal disturbances through ﬁfth columnists in the country. The connection between the two may be indirect in point of causation, but is unquestionable. Besides, there is a practical advantage in utilising the present opportunity for con- solidating the law on the subject.

5.3. Chapter 6 of the Penal Code has three provisions which punish the following olfences:---

(1) Waging war against any foreign State in alliance or at peace with India;

(2) Committing depreciation on territories of foreign State in alliance or at peace with India;

(3) Receiving property taken by means of such waging war or depredations.

1. The Foreign Relations Act, 1932 (12 of 1932) (Repealed).

2. Sections 125 to 127, I.P.C.

3'. Article 19(2) of the Constitution.

4. Also see Union List, Entry 10. "Foreign Affairs; all matters which bring the Union into relation with any foreign country." i

5. Section 1l(2)(t), Customs Act, 1962.

18 19

These provisions are obviously intended to ensure the main- tenance of friendly relations, and will be placed in the group under discussion.

5.4. Recruitment For service in the armed forces of foreign State and voluntary enlistment of Indians for such service are two other matters which could have repercussions on our external relations. The subject is regulated partly by a Central Act' and partly by a British Statutez. Such recruitment may fall in one or other of the following categories .:----

(1) recruitment for a foreign State at war with India, which can be called, for brevity. an enemy country;

(2) recruitment for 3. foreign State at peace with lnciia, which can be called, for brevity, a friendly country;

(3) recruitment for a country which is friendly to an enemy country; and {4} recruitment for a country which is enemy of a friendly country. ' ' 5.5- Recruitment for an enemy country {at least where the recruitment is for military or semi-military service.) is treason in "English iaw3. In India, it is bound to be held as abetment of the waging of war against India punishable under section 121 of the Penal Code.

5.6. Recruitrnent for a friendly country can, in England, be regarded as criminal, if it subjects the party to an inﬂuence or control inconsistent with the allegiance due to the sovereign. Russell says':

"Entering into the service of a foreign State without the consent of the King, or contracting with a foreign State any engagement which subjects the party to an inﬂuence or control inconsistent with the allegiance due to our own sovereign, is said to be a misdemeanour indicatable at common Law5, and where the foreign State is at war with Great Britain, is treason5".

In India, such recruitment can be regulated under the Foreign Recruiting Act, 1374.

5.7. Recruitment for at country friendly to an enemy country may or may not amount to treason in England or to abetment of Recruit-

ment and enlistment of foreign States.

1. The Foreign Recruiting Act, 1874.

2. The Foreign Enlistment Act, 1810 (33 and 34 Vic. c. 90).

3. R. v. Lynch, (1903) 1 [(3. 444; Russell on Crime, (I964), Vol. 2, page 545.

4. Russell on Crime. (1964), Vol. 2, page 1544.

5. 1 East P.C. Bl;4 Bl. Corn. 122.

6. R. v. Lynch, (1903) 1 KB. 444.

Two Acts on the Sub-

Jed.

Foreign Recruiting Act, 1874.

The Foreign Enlistment Act, 1870 (33 and 34 Vict. c.90}.

"\U1-L'-L>J[x)»--

).

waging war in India. The answer depends on the nature of the service to which the person is recruited, the use to be made of the person recruited, and other circumstances. Usually, if the third country is giving solid military assistance to the enemy country, war would have been declared against that country also. The regulatory power under the Foreign Recruiting Act, 1874, can also be exercised.

\ 5.8. Recruitment under the last category, i.e. for the enemy of a friendly country was not, in itself, an olfence at common law. Russell saysl, "It appears not to have been an offence at common law for British subjects to enter into the service of belligerent powers at peace with Great Britain unless the act involved a breach of duty to the Crownl. This category is now regulated by the (U.K.) Foreign Enlistment Act, 1870.

5.9. The (U.K.) Foreign Enlistment Act, 1870 applies only when the recruiting is for the service of any foreign State at war with any foreign State at peace with the Government. The Foreign Recruiting Act, 1874, on the other hand, authorises the Government to prohibit or regulate recruitment in India for _ any type of foreign service. As the wider of the two, it may be discussed ﬁrst.

5.10. Under the Foreign Recruiting Act, 1874, recruitment for the service of any foreign State may be prohibited by the Central Government3. or that Government may impose conditions on such recruitment4. Where such prohibition or condition has been imposed, then a person who, i'n violation thereof, induces or attempts to induce any person to accept a commission or employment in the service ofa foreign State, or induces any person to proceed to any place to obtain such commission etc. or know- ingly acts in the engagement of any person so induced, is punisha- ble with imprisonment upto seven years, or fine, or both5.

5.11. The (U.K.) Foreign Enlistment Act, 1870 regulates the conduct of British subjects throughout Her Majesty's dominions during the existence of hostilities between foreign States with which the British Crown is at peace' . Section 4, which is the crucial provision, prohibits (in the absence of a licence from the Government,a British subject from enlistrnent in the service of a foreign State which is at war with another foreign State, friendly with the British Crown.

. Russell on Crime, (1964), Vol.2, page 1544. . See also para. 5.12, below.

. Section 3, Foreign Recruiting Act, 1874.

. Section 4, Foreign Recruiting Act, 1874.

. Section 6, Foreign Recruiting Act, 1874. The British Act has not been repealed in its application to India by the British Slatu -

tcs ctc. { Repeal) Act, 1960.

5.12. The position at common law has been thus stated'-3 :--

"A foreigner who enlists in the forces of either belligerent when an international war is in progress (including a civi.l war in which recognition of belligerency has been granted by the parent Government or by his own Government) commits no crime against the other belligerent, who is not entitled to punish him if captured. But, following the great example of President Washington (and it was of him that George Canning said : 'If I wished for a guide in a systemof neutrality, I should take that laid down by America in the day of the Presidency of Washington and the Secretaryship of _l'eﬂ"erson'), many countries, including our own, have made it a criminal offence to join the forces of any Government at war with a State which is at peace with His Majesty. Our present statute is the Foreign Enlistment Act, 1870. We dc- not often enforce this part of it, and it is notorious that Britisl'. subjects are found ﬁghting in nearly every war that occurs."

5.l3.The present English Act on the subject. prohibits : (1) the enlistment by a British subject in the military or naval service of either belligerent, and similar acts3; (2) the building, equipping:

and despatching of vessels for employment in the military or naval service for employment in the military or naval service of either belligerent'; (3) the increase by any person on British territory of the armament of a man-of-war of either belligerent being at the time in a British port5; (4) the preparing or ﬁtting out of a naval or military expedition againstafreindly State'. The last two prohibitions apply to any person, subject or alien, within Her Majesty's dominions.

5.14. The extra territorial application ofthe Act is interesting.

The draltsmen of the Act seems to have devoted considerable atten- tion to this aspect, as is abvious from the care he has taken to indicate, in most of the penal sections, whether the act is to be punished when committed "within Her Majesty's dominions,"

or when committed "within or without" those dominions.

5,15. In its Report on British Statutes applicable to India, the Law Commission' observed in regard to this Act7 :--

"This statute regulates the conduct of British subjects throughout the Dominions during the existence of hostilities between foreign States with which the British Crown is at

-- 1. Me. Nair "Law relating to Civil War in Spain", (1937) 53 Law Quarterly Review, 471, 494.

'5 See also para. 5.8, above.

Sections 4'to 7, Foreign Enlistment Act, I870.

Sections 8 and 9, Foreign Enlistment Act, 1870.

Section 10, Foreign Enlistment Act, 1870.

Section 11, Foreign Enlistment Act, 1870.

Fifth Report of the Law Commission (British Statutes applicable to India), page 50__ Item B7.

II

3.

4.

5.

6.

7. .2 Recom-

mcndation regarding the F0- reign Re-

cruiting Act.

Rrco m-

mendation regarding the Foreign Enlistment Act.

peace. Thus; section 4 prohibits; a Briti-sh subject from enlistment in service of a. foreign State which is at war with another foreign State, friendly with the British Crown.

Since the extent clause of this statute refers to 'Domi-.1ions"

it has become inapplicable to India, according to Mcnoifs case'-2.

Butcsuch a legislation is necessary for India, for no Indian citizen _can be allowed to side against a State friendly with India, in case of war between that State and another. F urthcrm.-nether the beneﬁt of the legislation should be exten- ded to all members ofthe Commonwealth is another question to be considered."

3.16. As regards the Foreign Recruiting Act, £374, we are of the view that it is suﬁicient to incorporate the substance of section 4 of the Foreign Recruiting Act and the penal provision in section 8 of that Act, with the modiﬁcations indicated below. That section gives power to the Central Government to issue a general order prohibiting recruitment for service under It foreign State, or imposing conditions on such recruitment. This should, in our view, serve a weapon to deal with any situation that may arias by reason of attempts at recruitment on a large scale.

The other elaborate provisions which are contained in the Foreign Recruiting Act, mostly deal with acts in the nature of abetmcnt of the commission of, the principal offence of unautho- rised recruitment for service in a foreign State. They are unnece- ssary as the general provision of the Penal Code' punishing ahetmenl; Wonk! apply to all olfenoes under the proposed law.

Further, we think that there is no need to have a provision directing a parricuiar person to stop recruitment as is found in section 3 of the Foreign Recruiting Act. The general power under section 4 will do.

5.17'. As regards the (U.K.} Foreign Enlistment Act. 13?0. which concentrates on recruitment for a foreign. State at War with a Friendly State, we do not think that elaborate provision under that category is required. The matter couid be left to be dealt with by the Central Government, which can be given general powers to prohibit or regulate enlistment for foreign State similar to its general powers under section 4 of the Foreign Recruiting Act. 1334. Moreover, many of the activities made punishable by the British Act. like illegal ship building, are such that in the conditions of the present day it Wﬂllldxbe physically impossible for individuals to embark on them without detection. The rest of #1. sum nfﬁafrrciras v. on. .Me.'zort, A.'[.R. 1954 so. 51 7; (1955) 1 sIc.a. 250.

2. After the Fifth Report. similar -questions as to copyright arise in H'&1ckwo.:;a' :1': Sam' 1:. Parusaranzon, AIR. 1959 Mad. 410. -.

3'. Para. 5.13, below.

4. Existing sections I09 to I 16. 1.P.C.; proposed sections 67 to 74, 42nd Report.

the activities punishable under the Act could be dealt with' as ahelment of the commission of, the principal crime, which 15-- to put the matter shortlygunauthorised recruitment for a foreign State.

A provision similar to section 4 of the Foreign Recruiting Act would be adequate to regulate, restrict or prohibit such re- cruitment, whatever be the status of the t"oreign_country in ques- tion.

5.18, Existing section 4 of the Foreign Recruitment Act, how- ever. is very wide in two respects. First, as the Central Govern- ment is given unlimited power to prohibit recruiting for service of any foreign State or to impose conditions on such service, the section is not conﬁned to military service, and covers all kinds of non-military service. Secondly, it does not specify the COSidt:TE1- tions which should weigh with the Government in issuing a pro- hibition or restriction. In our opinion, the section needs to be modiﬁed, in both these respects. Apart from any objections that could be raised from the constitutional point of view with reference to article l9[l)(g) of the Constitution, such a wide power is not needed now. Need for restrictions on civil service under a fri- endly foreign State' is extremely improbable, at the present day. Even as regards restrictions for enlistment, in service in the armed forces of a foreign State, there should be some criterion on which the Central Government could act. We think that the interests of national security or maintenance of friendly relations with foreign States are adequate criteria in this context.

5.19. We are, further, of the view that a maximum punishment of imprisonment for 3 years will be adequate forthe offence.

3.20. We, therefore. recommend the incorporation of the following provisions in the Bill' :---~ (I) The Central Government may, if satisﬁed that it is necessary to do so in the interest of the national security of the maintenance of friendly relations with foreign State, by general-order notiﬁed in the Official Gazette either prohibit recruiting or enlistment for service in the armed forces of a foreign State or impose conditions on such recruiting.

(2) Contravention of the prohibition or breach of am:

of the conditions of such restriction will be punishahle with imprisonment of eithr description for a term which may extend to three years, or with ﬁne, or with both.

5.21. We car_efull_v considered a suggestion for inserting a provision punishing the acts of individuals which jeopardise the Modiﬁt.".i-

tions rc-

quircd in section 4, Foreign Rccrttiting Act.

Punish-

ment to be three -_vears' imprison-

ment.

Recom-

meni:la-

Lions as to recrui1~ merit and enlistment.

Jeopardi-

sing neut-

raiity.

1.(As to service in an enemy country during war, sec para. 5.5, above.

2. See clause 17 of The Nation .' 'f'ecurity Bill, below.

2.4 neutrality of the country. Attention was invited to the provisions in some of the foreign Penal Codes'.

\ \ English 5.22. The British practice on the subject of neutrality legis-

Wactice 35 lationz does not favour general and permanent provisions oi" the :gmY"fe"gti"S_ nature which we ﬁnd in South American countries3, but conﬁnes 1m,-0,,' itself to dealing with the important matters, leaving other measures to be undertaken as and when a situation arises. Examples of such speciﬁc measures are furnished by the Foreign Enlistment Act, 1870 and by orders issued under the Customs Act which prohibit (without licence from the Board of Trade or other com- petent authority), the export of arms and othe-r'materials of war. But most measures adopted in England are ofa temporary charac- ter. For example, during the Spanish Civil War, the Merchant Shipping (Carriage of Munitions to Spain) Act, 1936, was passed, to prohibit the carriage of ammunitions to Spain. Section 2(5) of the Act declared that the Act 'shall continue in force "until His Majesty by Order in Council is pleased to declare that it is no longer necessary or expedient that it should continue in force." Another device is to pass statutory orders under a particular sta- tute, such as the Treaty of Peace Act, 1919. Yet another device is to issue executive orders, circulars. instructions and depart- mental communications drawing attention to the provision of the Foreign Enlistment Act or other relevant law and its applica- bility in a particular situation which has arisen at the particular moment.

~..

po;;gn'on in 5.23. in some of the South American and Central American South countries and in some Continental Codes, however, there are A"""'i9a" provisions in the Penal Code of a permanent and general nature, w""""eS punishing acts compromising the neutrality of the country. At and in . . .

some cm. the same time, in the event of a particular war between other tint'-intal States, detailed legal prohibitions are also issued'.

Co es.

Position in 5.24. The United States represents a midway position. The the U-S-«N provisions for enforcing neutrality are more numerous than in England and Commonwealth countries. But they are speciﬁc and precise, rather than general and abstract as in the South American countries.

Various 5.25. Acts jeoparclising neutrality have various facets.

aspects of First, there is the question of international law. Where there £1395 J00' isa war between two countries, international law may impose I. (a) Argentinian Penal Code, Articles 219 and 220.

lb) Sections 121 to 131, Colombian Penal Code.

(cl) Section IIOC, Danish Penal Code.

2. See Deak and Jessup, Neutrality Laws, Regulations and Treaties, (1939), Vol. 1, Preface, page xv.

3. As to Sotith American countries, see para. 5.23, below.

4. See Deak and Jessup, Neutrality Laws, Regulations and Treaties, (Carrnei-igie Endow- ment for International Peace) (1939) Vol. 1, page 82.

certain obligations on the States as a consequence of its neutra- lity. The precise extent of such obligations maybe gathered from leading text books on the subjectl.

Secondly, there is the question of friendly relations with foreign States. irrespective of the question whether or not abstaining from a certain act is required as a matter of its obligations under international law, a neutral State may desire to abstain from that act in order to maintain its friendly relations with foreign States in general.

Thirdiy, there is the question of internal security. A State which has adopted the position of a neutral one may wish to avoid jeopardy to its neutrality in the interests of its own secu- rity. . - ' 5.26. It appears to us,_however, that the subject is one of considerable complexity involving a number of repercussions. General rules framed in abstract terms may lead to consequen- ces which cannot be anticipated at the time of framing the rules, and this may cause embarrassment. M Further, such a provision may result in considerable vagueness in its application, partly because of the dilﬁculty of precisely deﬁning an act which jeopardises neutrality. We do not there- fore think it proper to have a penal provision on the subject of a general and permanent nature.

5.27. As a result of the above discussion, the following oﬁences are recommended for inclusion under the group dealing with foreign States:~--

(1) Waging war against any foreign State at peace with India: _ (2) Committing depredations on territories of foreign State atpeace with India:

(3) Receiving property taken by means of such waging war or depredations;

(4) Recruitment to. or enlistment in, armed forces of foreign States.

et seq.

pardising neutrality.

Provision as to act jeopardis-

ing neut-

rality not favoured.

Offences to be indicat-

ed in this group.

1. Scc._C)_pperThcin1, "international law, (1960:. Vol. pages 653 to 6tiI. and hag;-45' lntro€luc-

tory.

Existing provisions to he in-

corporat-

ed.

Provisions relating to armed f orce5--im-

portance of.

Statutory provisions in England L4-J|.)--'-i . 42h'd_Report, Chapter 7.

. 42nd Report, paragraphs 7.] and 7.2. . Section 3, Aliens Restriction (Amendment) Act, 19l9 (9 & 10 Geo. 5 c. 93).

CHAPTER 6 OF!-'ENC-Es RELATING TO ARMED Foncss 6.1. We have so far dealt with direct attacks on national security. .

The security of a country may also be threatened by indirect acts, such as those which weaken the agencies established for the maintenance of its security. Since the armed forces of a country are the most important of such agencies, provisions punishing interference with their preparedness and efficiency in the dis- charge of' their functions are found in the criminal law oi' all countries.

6.2. In India, such provisions are contained in Chapter 7 of the Indian Penal Code. and it is appropriate that tlxey should be placed in the new law, with the changes recommended in our Report on that Code 1.

6.3. It is not a mere coincidence that in the Indian Penal Code, the Chapter dealing with offences relating to armed forces appears immediately after the Chapter relating to offences against the State. The importance of armed forces as the chief instru- ment for maintaining 'national security must have been I.he princi- pal reason. The Chapter attempts to provide. in a manner more consistent with the general character ofthe Code. for the punish- ment of civilians who abet military crimes. The inter--relation- ship of the offences in Chapter 7 of the Code with the oﬁ'cnces in the laws relating to armed forces has been explained brieﬂy in our Report on the Penal Code} The necessity for these pro- visions is obvious. The military law does not apply to civilians, as so they cannot be punished as abettors under that law. And the general provisions of the Penal Code as to abetment would also not apply, because the principal olfences of mutiny, deser- tion, insubordination and the like, are outside the Code.

6.4. In England, there are several enactments on the Statute Book which are designed to prevent the spread of disalfection. These are mainly concerned with the protection of public ser- vants. and more particularly members of the Armed Forces who may be exposed to attempts to seduce them from their duty or allegiance. Thc.Aliens Restriction (Amendment Act}. 19193 prohibits an alien from causing sedition or disaffegction among the civil population as well as among the Armed F0l'C'E.'S of the 26 27 Crown and those of its allies, and provides for summary punish- ment for the promotion of, or interference in an industrial dis- pute by, an alien in any industry in which he has not been en- gaged in the United Kingdom for at least two years immediately preceding.

6.5. In 1797, on the occasion of the mutiny at the Note, an Act' was passed punishing, as a felony without beneﬁt of clergy, the incitement of soldiers or sailors to mutiny. it was at first a temporary measure', intended to expire at the cud of the ﬁrst month of the then next session, but it was several "times re-enac- ted, and was in force till?' August l, 1807. when it was suffei'ed to expire, but it was revived and made perpetual' in 1817.

6.6. The incitement to Disaffection Act, 1934 was intended , to provide less harsh penalties than those under the (unrepealed) incitement to Mutiny Act, I797. The principal olfence under the Act punishes a person who seduces a member of' the forces from his duty or allegiance5. The Act contains stringent pro- visions for the prevention, and detection of this olfence. More- over, it is an offence for any person to be in" possession (with in- tent to commit, or to abet, counsel or procure the commission of the principal offence). of any document of such :1 nature that the dissemination of copies thereof among members of the Forces would constitute the principal offence'.

A leading author on Constitutional law has made the follow- ing comment after referring to the provision relating to posses- sion of documents in the 1934 Act--

"This measure arms the Government with a means of restricting the distribution of political propaganda; parti- cularly it could be used to suppress the distribution of paci- ﬁst literature. It must be admitted that prosecutions are rare and that juries are reluctant to convict?"

6.7. A few suggestions for the addition of new provisions relevant to armed forces may be brieﬂy discussed.

6.8. We had, during our consideration of the subject of offences against the national security. looked into the Trea- chery Act". an English Act passed during the second world war. The Act, which was a temporary one, has been repealed Other sug-

gcstions Considered.

Trcacliery.

l. The Incitement to Mutiny Act, 1797 (37 Geo. 3 c.

2. Stephen, History of the Criminal Law of England, Vol. 2, page 193.

3. 41 Geo. 2 c. 29.

4. 57 Geo. 3, c. 7 referred to in Stephen, History of the Criminal Law of E 2, Page 193.

5. Section I, incitement to Disaﬁ'ection Act, 1934 (24 & 25 Gen. 5, c. 525}.

6. Section 2, incitement to Disaffection Act. E934 (English).

7. Wade and Phillips, Constitutional Law, (1970). page 529.

8. The Treachery Act, 1940 I3 & 4 Geo. 6 c. 21).

nglantl, Vol.

Propa-

ganda amongst armed forces.

Oilencesto be included in this group.

in England. It has also been repealed in its application to India. 1 BU}, In View of the importance of the subject, its provisions re- quire consideration. The main section' read :--

"If, with intent to help the enemy, any person does, or attempts or conspires with any other person to do, any act which is designed or likely to give assistance to the navaL_ military or air operations of the enemy, to impede such opera~ tions of His Majesty's forces, or to endanger life, he shall be guilty of felony and shall on conviction suﬂ'er death."

We have given some thought to the subject; but we have ulti- mately come to the conclusion that the practical importance of such a provision would be very limited, and we are not, there- fore, inclined to recommend any such provision. if war is dec- lared or is very imminent, suitable emergency legislation could be readily enacted, and such legislation would be comprehen- sive enough to cover such acts.

6.9. Propaganda in the nature of subversive activities among the armed forces was referred to during our discussions and it was suggested that a speciﬁc provision aimed at such acts corrup- ting the minds of members of the armed forces was needed. It was stated that the acts would not amount to inciting mutiny nor fall under section 505. Indian Penal Code.

Now, an attempt to seduce an oﬁlcer or member of the armed forces from his duty is punishable3 even under the present law. So is a statement, rumour or report inducing him to fail in his duty.' If there is no such incitement or inducement, a more attempt at indoctrinationﬁthough morally reprehensible---- cannot. in our opinion, be made penal. Special provisions applicable to armed forces may be needed, and may be pro- vided in the special Acts applicable to armed forces. But per- sons outside the armed forces cannot be punished for more in- doctrination falling short of incitement or inducement to seduc« tion or other objectionable conduct.

6.10. Hence we recommend that the offences to be included in the Chapter relating to armed forces may be as follows':~-- (I) Abetment of mutiny.

\ (2) Attempting to seduce an ofﬁcgr or member of any of the armed forces from his duty.

1. The British Statutes (Application to India} Repeal Act, 1960.

2.. Section 1.

3. Section 133, [.P.(.'. as proposed in the 42nd Report; existing section 131.

4. Existing section 505; proposed scction I39, 1.P.C. (-12nd Report).

5. Cf article 33 of the Constitution.

6. These are the same as sections 132 to 140 of Chapter 7 of the Indian Penal Code as proposed to be revised in the 42nd Report.

(3) Abutment of assault on a superior officer.

(4) Abelment of' desertion from armed forces.

(5) Harbouring a desertcr.

(6) Abetment of an act of insubordinatiom (7) Incilcment to mutiny or other act of msubordination.

- (8) Dissuasion from eniiéfing, and instigation .to mutiny or 1nsubordinati_on after enlistment. -

(9) Wearing garb or carrying token used by officer or member of the armed force. _ 34 M of Law/71%} Introduc-

non.

Disru ptivc activity.

CHAPTER 7 SUuvL=ns1vE Acrwirtts 7.1. In the preceding Chapters, we were concerned with nuts in the nature of direct opposition to the State. " Le~';scr fornis, or indirect modes, of attacks on the secttrity of the State will now require consideration. These could assume a variety of t'orm.~:_. such as disruptive activities, organising para-military groups. maintaining relations with a foreign power or body for Lt pur- pose prejudicial to the national security. deceiving a public ser- vant For a purpose prejudicial to the national security, sabotage. espionage and seditious acts. Though the external characteris- tics of these acts may diﬁ'er, they all share some common charac- teristics, nan1ely--(i) the acts are the result of, or are intended to cause, a shift of allegiance, a split between the nation and its citizens; and (ii) the acts represent a preparatory or other stage earlier than treason proper. The ultimate end is not in doubt; but the connection between the visible act and the ulti- mate end is not always easy to discern. For example. sedition usually consist of words, not action. The ultimate end is to destroy the bond between the nation as represented by the Go- vernment established by law and those whose 0b€dl€i'1C€ the Government is entitled to command. But the means adopted

-----usualIy, words--represent.s a stage preparatory towards gravcr acts. Similarly, an act of sabotage; undoubtedly conimitted with the object of impeding the defence efforts of the nation. is, nevertheless, an indirect---and, therefore, not easily discoverable mode of achieving that object. The expression "subversive activities" is, we think, apt as a convenient label for describing these acts, as distinct from graver acts of 'overthrowing' the Government. And we proceed now to indicate the oﬁ'e':ices to be included in this group.1

722. We think that the principal oliencez dealt with in the Unlawful Activities (Prevention) Act, 1967 (so far as relates to individuals), namely, taking part in, committing advocating, abetting, inciting or advising certain activities described in the Act as 'unlawful activities' could form the ﬁrst section in the group of subversive activities. The deﬁnition of an 'unlawful activity' in that Act comprises three kinds of acts, concerned respectively with (ii cession of Indian territory, (ii) secession of a part of the territory from the Indian Union, and (iii) disclaim- ing, questioning or disrupting the sovereignty and territorial integrity of India. The ﬁrst two are really in illustrative of the third, which is the most general, and the essence of it is disrup-

1. Discussion as to constitutionality is contained in Chapter 2 above.

2. Section 13(1), Unlawful Activities (Prevention) Act, 1967.

30 31

tion. A more expressive designation for this type of anti- national activity would, therefore, be "disruptive activity"- It is obvious that such acts are in their essence subversive acts. As has been stated more than once, the essence of treason is destruction of the bond between the citizen and the State. These acts are aimed at such destruction.

The provision which we propose on the subject is modelled on section 13(1) of the Act, which contains the penal provision. The gist of section 20') which deﬁnes "unlawful activity" and of section 2(b) and 2(d) which explain "cession" and "secession" respectively, is put in the Explanation.

The relevant section will be as follows:----

"Whoever commits, or abets the commission of', any disruptive activity, or advocates 'or advises any disruptive activity, shall be punishable with imprisonment for a term which may extend to seven years and shall also be l'iable to ﬁne. I Explana2'z'on.----For the purpose of this section,----~

(a) "disruptive activity" means any action tal_<en, whether by act or speech, or by written words, signs or visible representation, or otherw1se,------ ' ' (i) which questions, disrupts; or is intended to disrupt the sovereignty and territorial integrity of India, or

(ii) which is intended to bring about, or supports any claim for, the cession of any part of India, or the secession of any part of India from the Union, or

(iii) which incites any person to bring about such cession, or secession;

(b) _"cession" includes the admission of the claim of any foreign country to any part of India;

(c) "secession" includes the assertion of. any claim to determine whether a part for India will remain within the Union:

Exception.--Nothing in this section applies to any treaty, agreement or convention entered into between the Govern- ment of India. and the Government of any other country or to any negotiations therefor carried on by any person autho- rised in this behalf-by the Government of India."

7.3. The waging of war against the Government of India can 'be committed etfectively only by organising large groups. But there could be lesser offences committed by groups, such as the setting up of a para-military group. It is a serious defect in DiSt'upti\ r activity.

Para-mili-

tary groups for subver-

sive pur-

poses.

\ Prohibited by law in some countries.

our law that there no provision for punishing the act of setting up of a private military organisation, by whatever name called, whose objects are of a subversive character. Thai; such organi- sations are capable of developing into a serious threat to internal security cannot be denied. This' is particularly so when the object of the group is to usurp the functions of the armed forces. Further, in a society organised on the rule of law, any group trained to use force in the achievement of its objects should be regarded as criminal.

7.4. We notice that the laws of many countries prohibit the formation of such groups. Thus in England, quasi-military organisations are penalised by statute asfollowsl---

"If the members or adherents of any association of persons, whether incorporated or not, are:--

(a) organised or trained or equipped for the pur-

pose of enabling them to be employed in usurping the functions of the police or of the armed forces of the Crown; or

(b) organised and trained or organised and equip- ped either for the purpose of enabling them to be em- ployed for the use or display of physical force in promot- ing any political object, or in such manner as to arouse reasonable apprehension that they are organised and either trained or equipped for that purpose;

then any person who takes part inthe control or management of the association, or in so organising or training as afore-

said any members or adherents thereof, shall be guilty of an' offence under this section."

In Denmark, the Penal Code has a provision? punishing, with imprisonment upto six years, "participation in, or subs- tantial support to, any corps, group or association which in- tends, by the use of force, to inﬂuence public alfairs or to dis- turb public order." The same section punishes participation in "unlawful military organisation" (not deﬁned) with ﬁne, sim- ple detention or (in aggravating circumstances) imprisonment upto two years.

The French Penal Code has, in the chapter entitled "Felo- nies against the Internal Security of the State," a provision3 punishing a person, who raises or causes to be raised an armed force, enlists or causes enlistment of soldiers or supplies or pro- vides them with arms and ammunition without legitimate autho- rity.

1. Section 2(1), Public Order Act, 1936.

2. Section 114, Danish Penal Code.

3. Article 92, French Penal Code.

The Russian Penal Code has', under the Chapter "Crimes against the State," a group -of sections under the head "Espe- cially dangerous crimes against the State." One of these sections punishes organisational activity directed to the preparation or commission of especially dangerous crimes against the State or to the creation of -an organisation which has for its purpose:

the commission ofisiich crimes, or participation in an antic-soviet organisation.

7.5. There should hardly be any question that such organisa-

tions ought to be prohibited and participation in them severely punished. The question of deﬁning in precise terms the kind of . organisations to be prohibited was carefully considered by us. Before a group can be regarded as punishable, two tests should in our opinion, be satisﬁed. First, the group must be of such a character that its members are trained or equipped to use force for achieving its object. Secondly, t-he group must be organised for a purpose prejudicial to the national security. That will include, of course, the purpose of usurping the functions of the armed forces, or of committing any acts of sabotage. But the last two purposes may be speciﬁcally mentioned. ' The following section is recommended :+~ "Whoever organises, trains, maintains or promotes any group the members of which are trained or equipped to use force for achieving its object and which is organised--

(a) for the purpose of usurping the functions of the armed forces; or

(b) for the purpose of committing any acts of sabo- tage; or

(c) for any other purpose prejudicial to the national security. ' shall be punished with rigorous imprisonment. for ii term which niayextend to ten years, and shall also be liable to ﬁne:

and whoever participates in, _or belongs_ to, any such group as aforesaid shall be punished with rigorous imprison- ment for aterm which may extend to ﬁve years, and shall also be liable to fine."

7.6. The offences referred to above are concerned primarily with internal security. Danger to external security can arise from other acts, and these will now be dealt with.

The gravest act endangering external security is, of course, what has been described in England and U_.S.A. as being adherent to the (country's) enemies, giving them aid and comfort and 111 the Canadian Code as "assisting the King's enemies." Such acts Provision recom-

mended.

Maintain-

ing rela-

tions with foreign States for purpose prejudicial to national security.

i ii. Section 72, read with sections 54.71, R.S.F.S.R. Penal Code. . I Provision in foreign Codes.

if 2

3.'

34. will be covered by the new section which we have recommen» ded in our Report on the Penal Code} and which is to be in- cluded in the proposed Consolidation Act. But there are lesser offences which require attention. While assisting an enemy is an act conﬁned to time of war, there are acts committed in peacetime which show a guilty association with a hostile country. In some respects, these are different from the graver act of assis-~ ting the enemy, because~

(i) the country assisted may not have commenced war or hostilities,

(ii) the assistance is not direct, but is of a subtle character not easily descernible.

But precisely because the assistance is indirect and the situa-» tion has not yet attained the stage of war, there is greater reason for punishing such sinister preparatory acts which pave the way for treason in its highest form. We shall refer below to a few of such acts.

For example, collaboration with hostile countries may be referred to. It appears that certain groups are in league with hostile foreign powers in some of the border, areas and indulge in hostile acts, preparatory to insurrection. Owing to want of evidence, it is diﬂicult to bring any charge of waging war or pre- paration of waging war. But collaboration with a "potential enemy in a secretive form and for a subversive purpose, is un- questionably resorted to. For example, a group of Indian citi- zens go over the border, obtain some arms from an neighbouring hostile country, come back to India and then carry on subver- sive activities. The preparatory acts are built up slowly, and before any convincing evidence could be obtained. The State. therefore, loses ground while the insurgents are gaining ground. After arrival in India, the insurgents do not go with arms openly and usually scatter themselves. The essence of their crime is foreign- inspiration coupled with such preparatory acts showing collaboration with a foreign power. Such acts should, it was suggested, be dealt with by a specific provision.

7.7. We ﬁnd. that some of the foreign Codes have provisions designed to punish collaboration with the "enemy" and, in some cases, collaboration with a foreign state in a manner detrimen- tal to the State.

For example, the Norwegian Penal Code has this provision?

"Any Norwegian citizen or resident of Norway who

-receives from a foreign power or party or orga-njsation acting in its interest, for himself or for a party or organisation,

- 125:1 Report. section 12.3A..

. Chapter 4. above.

Scctio 97:: Norwegian Penal Cod 35 economic support to inﬂuence. -public opinion about the country's form of Government or foreign policy or for party purposes, or is accessory thereto, shall be punished by jailing or imprisonment upto two years." ' The German Penal Code,provid'els punishment for such 'trea- sonable relatioris' in a section' reading as follows: m "1. Anybody who, with the intent of bringing about or furthering a war, an armed undertaking, or coercive measures against the Federal Republic of Germany or one of her States, enters into or" "main ains relations with a Government, a party. an alliance "or organisation in existence in a territory outside the territorial jurisdiction of this law. or with a personvvho acts in the service of such a government, party. alliance or organisation. shall be punished by -conﬁnement in a peni- tentiary. ' \

2. If the perpetrator acts with the intent of bringing about or furthering other measures or efforts of a government, party, alliance, oi' organisat_ion in existence in a territory outside the' territorial jurisdiction of this law, which are desig- ned to impair theexistence Moi-[the security of the Federal Republic of Germany or to abrogate "or invalidate the consti- tutional principles designated in section 88, the punishment shall be imprisonment. The attempt is punishable."

The provision in tire' Yugoslav Penal Code for participating in hostile activity against the country is simpler?

"A Yugoslav .citizen who with intent to overthrow the State system and;social organisationvor because ,of any hos- tile activity against Yugoslavia establishes contacts with a foreign state. foreign organisation or a particular foreign group of refugees, .or _who assists them in the performance of hostile activ_itie_s, shall be punished by strict imprisonment."

7.8. it is obvious that as the law in India stands now, colla--

_ horation with, or receiviligassistancefrom, a foreign power with which there is no war or active hostilities. is not an offence. ex- cept where the collaboration takes the shape of transmission of secret information falling under the Oﬂicial Secrets Act. A special provision, is therefore, required, to penalise such acts, if committed for a purposepprejudicial to national security.

During our discussions. it was suggested that persons who have contact with countries which commit or have committed aggression against ind-ia and propagate" their ideology should

-be punished. "The provision we recommend below" will cover such activities to some extent. The essential mem rea, namely, a purpose prejudicial to the national security, will, ofcourse, have to be proved. ' ' ' Provision reconn-

mended.'

1. sceuen 100d, oerman Penal Code". 2 Article 109. Yugoslav "Penal Code.

Treasonable ' deception.

Provision recom-

mended.

Sabotage.

Different motives for destruction of properly.

1. Cfl(a)Secti;17;9l,Drad't'(§erman Penaltfd .

The new section may be as follows :--

"Whoever, for any purpose prejudicial to the national security; maintains relations with a foreign State .o:r with an institution or organisation outside India shall be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

7.9. Threat to external security of a country may arise not only from the use or likelihood of use of force, but also from acts done fraudulently or clandestinely. It is possible to conceive of fraudulent acts which mislead the public authorities, and there- by prejudice the national security by disrupting its relationship with a foreign country.

7.10. Violence, when constituting a threat to external secu- rity, is amply taken care of by the present provisions of the Penal Code; and clandestine acts, which usually consist inthe collec- tion or transmission of intelligence, are also fully proxdded for in the laws relating to espionage. But fraudulent acts of the nature mentioned above are not speciﬁcally provided for, and the lacuna should, we think, be ﬁlled.

7.11. We propose a new section' on the subject, as follows:---

"Whoever, for a purpose prejudicial to the national security, intentionally transmits to a public servant a false report, the content of which is likely to disrupt relations bet- ween India and a foreign state or an international institution, shall be punished with imprisonment for a term which may extend to seven years, or with ﬁne, or with both."

7.12. Another subversive activity of which serious notice has to be taken is sabotage. The oﬂence consists not only in wanton destruction of, or damage to, the property and under- taking required for defence purposes, but it also includes organi- sing and participating in unlawful strikes in defence plants, and in the essential services which impair and impede the proper functioning of such plants and services and thereby endanger national security.

7.13. Malicious or wanton destruction of property could be committed from different motives. The object may be to impair the defence eﬂ'ort of the nation, or to undermineitseconomic prosperity, or to harm the owner of the property, or some other object. Provisions in different Penal Codes of foreign countries emphasise one or more of these objects. Here we are primarily concerned with those provisions which deal with jeopardy to the security of the country. , (bl Swedish Penal Code. Chapter 19, section 8.

37' In Canada, under the Heading 'offences against public order', there is a section' punishing sabotage as a 'prohibited act'. The purpose must be one prejudicial to the safety, securityor defence of Canada or to the safety or security of the armed forces of any other country lawfully present in Canada. impair the efficiency of any vessel, vehicle, aircraft, machinery, apparatus "or other thing", or cause loss, damage etc. of property. The property need not be State property; this is emphasised by the words "by whomsoever it may be owned".

7.14. There is no separate offence of sabotage in England. But in C.'htmdler's casez, it was pointed out that the Oﬂicial Secrets Act is widely framed so as to cover some acts of sabotage.

Lord Radcliffe observed (with reference to the Official Secrets Act):--

"The saboteur just as much as the spy in the ordinary sense is contemplated as an olfender under the Act."

7.15. The French Penal Code punishes3 such acts by a provi- sion appearing in the Chapter entitled "Felonies and misdemean-

-ours against the security of the State".

In the German Penal Code', the oifence of sabotage is included under Chapter 2, entitled "Endangering the State". The object must be to impair the existence of the Republic, or of abrogating, invalidating or undermining the constitutional principles etc. 7.16. in the Russian Code5,' sabotage is included under "Chapter One--~--Crimes Against the State", "Sub-Chapter I-- Especially dangerous Crimes Against the State". The purpose should be to weaken the Soviet State. The gist of the offence is the destruction or damage by explosion, arson, or other means, of enterprises, structures, routes and means of transportation, means of communications or other state or social property. Death is a permissible punishment. _ 7.17. There is also, in the same Code the offence of wrecking. The gist of this offence is an act or omission directed towards subversion of industry, transport, agriculture, monetary system, trade or other branches of national economy or activity of state agencies or social organisations, for the purpose 0!' weakening the Soviet State.

7.18. Mere destruction or material impairment of property with such intent is not left unpunished even at present. A group of sections in the Penal Code dealing with mischief and its aggravated forms provides adequate punishment for such

1. Section 52, Canadian Criminal Code. '

2. Cimndfer v. D.P.P., (I962) 2 All England Law Reports, 142, I48 (H.L.).

3. Section 76, French Penal Code.

4. Section 90 and 190e, German Penal Code (I871).

5 Sections 68-69, R.S.F.S.R. Penal Code.

The act may 5 Position in England regarding sabotage.

Provision in France and Ger-

many.

Provision in Russia relating to sabotage.

Crime of "wreck-

ing"

Russia.

in Present provisions in India as to destruc-

tion of pro-

pcrly.

Provision recom-

mended .

Espiona ge {Official Secrets Act).

3.8 destruction and impairment. But the emphasis in that group of sections is on the proprietary aspect, as is evident from the fact that the sections are placed in the Chapter on offences rclatin g. to property; We consider that, for cases where such destruc- tion and impairment take place for the purpose of prejuclicing national security, a speciﬁc provision is required; the offence may be conveniently described as "sabotage".

7.19. The physical act punishable would be an act which impairs the eﬁiciency or impedes the working of or causes damage- to:--- '

(a) any means of public transportation.

(b) any means of telecommunication, (C) any place used for the production of any article- useful for the defence of" India or any machinery or apparatus therein.

Theie should be an exemption clause dealing with stoppage-

of work arising out of an industrial dispute.

The provision which we recpmniend on the subject is, in form, less elaborate than that which was contained in the [)efencc~ of India Rules'.

' The newisection may be as fellowsh-

"Sabo'rage.,-e--(l) Whoever. for any purpose prejudicial to the national security, does any act which impairs the-

efﬁciency or impedes' the working of, or causes damage to,--~ (ti) any prohibited-place or any machinery or apparatus therein, or

(b) any means of public transportation, or

(c) any means Of'l'ClCCOITlIl'!L1l'llCaTi011, shall ti.

punishable with rigorous imprisonment for a term which may extend to fourteen years, and shultl also be liable to ﬁne.

(2') A person shall not be guiltv of an offence under this section by reason only that he stops worlt as a result of an industrial dispute as deﬁned in clause (k) of section 2 oi"

the Industrial Disputes Act, 1947; but nothing in this sub- section shall aﬁfect his liability to be prosecuted for any offence which he may have committed against the' provisions oi' that Act."

7.20. A number of olfences relating to espionage are dealt with in the Official Secrets Act. Hence it is necessary to consider in detailthe various provisions of that Act.

tile 36 Defence of India Rules, 1962.

" 39 7.21. Section 2(1) says that any reference to a place belonging: Section to Government includes a place occupied by any department of %(1).--D°' f. the Government, whether the" place is or is not actually vested pl"a':;°"b:_ in Government. The deﬁnition is unnecessary, and should be longing to omitted. Govern-

ment t: be ' Omitte .

7.22. Section 2(2) is an inordinately long sentence mixing Seﬁtion up several ideas. First, it explains the scope of expressions (2.)'""l"'°' which refer to communicating or receiving. Next, it explains rt:

the scope of expressions which refer to obtaining or retaining. communi- Lastly. it explains that expressions referring to the conimunica-- Cafirgs. re- iion of any sketch, plan, model, article or document include the "'°"""5'-

transfer or transmission of the sketch, plan, model. article, note 3E"a'r':.',2§n_ or document. ing to be-

omitted.

The whole deﬁnition appears to be unnecessary, and should be omitted.

7.23. Section 2(3) deﬁnes "document" as including part of Section 2 a document. The deﬁnition is unnecessary because the deiini-- (3J""df."

tion of 'document' in the General Clauses Act' is applicable to cumem ' the whole as well as a part of a document. Clause (3) of section 2 should therefore be omitted.

7.24. We considered the question whether the expression D°ﬁ"l"0"

"enemy" should be deﬁned. The expression occurs at several "F °"°"'3"

places in the Ofﬁcial Secrets Act. There is an English decision2 which contains observations to the effect that the word 'erneny' in the Official Secrets Act includes a potential enemy.

7.25. In one of the foreign Penal Codes3 the concept of Provision 'constructive enemy country' has been introduced in these terms. gfrﬁggsfgll' "In any of the crimes of Article 93 through the preceding §3f,:?:.y=s Article} a foreign country or a group of foreigners taking in Korea- a hostile action against the Republic of Korea shall be deemed an enemy country."

The English decision5 is likely to be followed in India also and it is not desirable to deﬁne the expression 'enemy'. It may be left undeﬁned so as to facilitate an elastic construction according to context.

1. Section 308), General Clauses Act, 1397, deﬁnes a document as including "any matter» written, expressed or described upon any substance by means of letters, ﬁgures or marks, or by more than one of those means which is intended to be used; or which may be used, for the purpose of recording that matter." -

2. R. v. Parrott, (1913) 8 Cr. App. Rep. 186 (C.C.A.).

3. Section 102, Korean Penal C0dc._

4. Article 93,_Korcan Penal Code pun'ish_ed a person who ﬁghts against the Republic of Korea by joining an enemy country. Article 10! punishes, inrer alin, a preparation on conspiracy to commitaii offence under article 93.

'5. Para. 7.24 above. ' 40 Deﬁnition 7.26. There is, in section 4(2) (b) a deﬁnition of 'foreign ;';mft'3§"§3 agent', which needs no change but can be included in the general be mm5_ deﬁnition'.

ferrecl from sec-

tion 4(2)

(b) of the Secrets Act.

Section 7.27. Section 2(4) which deﬁnes 'model' needs no change? 2 ,' d . . . .

Sggﬁiozg) 7.28. Section 2(5) deﬁnes 'munitions of war'. The importance 4,.mm;t;o,,s ' of this deﬁnition is mainly for the purposes of the definition of of war'. 'prohibited p]ace'3, and for one of the penal provisions'. No change of substance is needed in this deﬁnition5.

'Section 7.29. Section 2(6) deﬁnes the expression 'oﬂice under Govern- 2(€)_-- De: ment', as including any oﬂice or employment in or under any 53%': °t department of the Government. We think that the definition under is unnecessary. The expression 'office under Government' is Govem- well understood. The deﬁnition should be omitted.

§'e°:l:1m;f The deﬁnition does not include employment under public enterprises, and hence a person holding ofﬁce in such enterprise does not fall within that part of the penal provision in se:tion5(I), which' relates to information entrusted in conﬁclence by a person 'holding ofﬁce under Government' or 'information obtained as a person who holds ofﬁce under Government'. -But that part of section 5(1) which refers to prohibited places or information likely to assist the enemy may be attracted. More- over, where munitions of war are the subject matter of t.he infor- mation, the speciﬁc provision relating to munitions of war in section 5(3) would also come into play. Hence the scope of the Act need not be expanded on this point.

Section 7.30. Section 2(7) deﬁnes photograph as including an undeve- }{(7)-- ioped ﬁlm or plate. It needs no change''.

photo-

graph".

Section 7.31. Section 2(8) deﬁnes the expression 'prohibited place'. '-'!(3)--_ _ ed This is the most important deﬁnition in the Act. Its importance ;;;'c';'.'_b" is illustrated by several provisions, but it is sufficient to mention section 3(1) which, inter alia, punishes, (under the head of 'spying'), any person who, for any purpose prejudicial to the safety or interest of the State, approaches, inspects, passes over or is in the vicinity of, or enters, any 'prohibited place'.

I. The deﬁnition of 'foreign agent' is proposed to be included in the general deﬁnitions. applicable to the whole Act.

2. The deﬁnition of 'model' is proposed to be included in the general deﬁnitions appli- cable to whole Act.

3. Section 2(S)(d).

4. Section 5(3).

_ 5. The deﬁnition of 'munitions of' was-' is proposed to be included in the general deﬁni- tions applicable to the whole Act.

6. Cfl para. 7.61, below.

7. The deﬁnition of 'photograph' is proposed to be included in the general deﬁnitions applicable to the whole Act.

F1' 41 7.32. The deﬁnition in section 2(8) covers four classes-of"

places. Clause (a) relates to certain works, which, broadly speaking, comprise works of defence or establishments relating to the armed forces, mines, military communications and the like, and factories etc. used for manufacturing munitions of war. The works, establishments, mines, communications and factories etc. must belong to or be occupied by the Government, under clause (a). Clause (b) covers any place not belonging to Government, where any munitions of war or any sketches, models, plans or documents relating thereto are being made, repaired, gotten. or stored, under contract' with, or with any person on behalf of, Government or otherwise on behalf of Government.

_ Clause (c) covers any place belonging to or used for the purpose of Government, which is for the time being declared by the Central Government by notiﬁcation in the Oﬁicial Gazette, to be a prohibited place for the purposes of the Act, on the ground that information with respect thereto, or damage thereto, would be useful to an enemyl.

Clause ((1) covers a railway, road etc. or other means of communications by land or water or any place used for gas, water or electricity or other public works etc., or a place where munitions of war etc. are being made etc. otherwise than on belaalﬁof Government, which is for the time being declared by the Central Government by notiﬁcation to be a prohibited place, on the ground that information with respect thereto, or the des- truction or obstruction thereof, would be useful to an enemyl.

7.33. Clause. (d) lacks clarity. While enumerating the various places, it does clearly not bring out the idea that the two requirements, namely,--

(i) a declaration should be made that information relating to, or obstruction etc. of the place, would help the enemy, and

(ii) a copy of the notice declaring the place to be a prohibited place should be aﬁixed, are intended to apply' to every one of the places enumerated in the clause.

7.34. Apart from this verbal defect, it would be seen from the above analysis, that while places directly concerned with defence installations are adequately covered, other places, information regarding which may be useful to the enemy, are not sufficiently provided for. Clauses (c) and (d), which relate to places, infor- mation regardingwhich may be useful to an enemy, are hedged in with minute" limitations; under clause (c), the place must belong to or be used by Government, and under clause (d), the l Deﬁnition of "prohi-

bited place"

analysed.

Defect in clause (cl) of the de-

ﬁnition.

Recom-

mendation for amen-

ding the deﬁnition of "probl-

bited place".

I. The clause requires that 3 copy of the notiﬁcation should be mixed to the place so notiﬁed.

Other minor changes recom-

mended.

emphasis is on the nature of the place (namely, means of com- munications or places used for public works or places where the munitions of war are made etc.). It is felt that there may he places which do not fall under clauses (c) and (d), and which, nevertheless, are important from the point of security, insofar as information with respect thereto may be useful to an ememy. The Central Government should have power to notify any piece as a prohibited place on that ground. We, therefore, propose a new clause, giving such power to the Central Government. This will render (c) and (d) unnecessary.

7.35. The changes which we recommend in clauses (a) and

(b) are of minor verbal nature. The deﬁnition is proposed to be split up into more intelligible categories. A short expression 'armed force establishment' is proposed to be used, in place of the lengthy enumeration of such establishments; the reference to 'mine' is to be omitted as unnecessary, as a 'mineﬁeld' is already mentionedl.

The revised deﬁnition will be as follows:--

"(z') 'prohibited place' means,--

(i) any armed force establishment, station or camp;

, (ii) any work of defence, wireless or signal station, telegraph or telephone installation, arsenal, mineﬁeld, ship or aircraft under the control of any of the armed forces;

(iii) any factory, dockyard or other place belonging to, or occupied by or on behalf of, Government, and used. for the purpose of making, repairing or storing any munitions of war or any sketches, models or documents relating thereto, or for the purpose of getting any metals, oil or minerals of use in time of war;

(iv) any place not belonging to Government where any munitions of war or any sketches, models or docu- ments relating thereto are being made, repaired or stored under contract with, or otherwise on behalf of, Govern- ment;

(v) any other place which is for the time being de- clared by the Central Government by notiﬁcation in the Official Gazette to be a prohibited place for the purposes of this Act on the ground that information with respect ' thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy, and at which a copy of such notiﬁcation is displayed for public information."

_ 1. The deﬁnition of 'prohibited place' is proposed to be included in the general deﬁni- rtions applicable to the whole Act. _ 43 7.36. Section 2(9) deﬁnes a 'sketch' as including any 'photo- graph' or other mode of representing any place or thing. We propose to add 'plan' in this deﬁnition, so as to avoid repetition of the Word 'plan' in the various succeeding provisions1.

7.31 Section" 2(1) 'superintendent of Police'. The only practical utility of the deﬁnititmwis . in the power of the Central Governi:t1entt'o designate lower oﬂ-icers as'Strperinten dents of Police. The various powers under the Act may well-be conﬁned to oﬁicers appointetlas Superintendent of Police. Where it is considered necessary to invest some power on subordinate police otﬁcers, this has been expressly provided ['01-3. As regards higher T officers, no practical difﬁculty is likely to be caused by the absence of a deﬁnition. We, therefore, recommend omission of this deﬁnition.

7.38. Section 3(1) deals with the most important offence under the Act. Though described as 'spying', it comprises acts of three types, as indicated in three clauses of the sub--section. Clause (at) emphasises certain acts done in relation to a 'prohi- bited place', described as approaching, inspecting, passing over, being in the vicinity of, or entering 'for any purpose prejudicial to the safety or interests of the State'. Clause (b) is concerned with making a sketch etc. useful to an enemy, with the same purpose. Clause (c) deals with obtaining or communicating etc. any secret oiﬁcial code or pass word or sketch etc. or infor- mation useful to an enemy, relating to :1 matter the disclosure of which is likely to aﬂ'ect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States, again with the same purpose.

7.39. For a correct interpretation of the expression 'safety or interests of the State" occurring in this provision, we may refer to an important English case' on a similar provision in the English Act. In that case the airﬁeld, which was occupied by the United States Air Force Squadrons, had been declared a 'prohibited place' within section 3 of the Ofhcial Secrets Act. 19911 (English). Thereafter, the appellants, members of 'Committee of 100', which was carrying on 3 campaign for nuclear disarmament by organising demonstrations of civil disobedience, planned to urge demonstrators to sit or lie on the road outside the entrance to the airﬁeld so as to black access to it, and to encourage a smaller number of persons to enter the ﬁeld, and, by sitting in front of aircraft, to prevent them from taking off. This second object was not carried out, as the demonstrators were prevented by the police from entering the ﬁeld. On these facts, the appellants were charged with conspiring to commit a breach of section} of the Ofﬁcial Secrets Act, 1531!.

Section 2(9J-

Deﬁnition of "sketch".

Section 2(i)----

"Superin-

tendent of police" to beomilled.

Section Zl(l)----

Analysis.

Chandlcr's case.

1. The deﬁnition of 'sketch' is proposed to be incliidcd in the general detiriitio-nu appli-

cable to the whole Act.

2. See paras. 7.82 and 7.84 below (relating to sections 8 and 10).

3. Para; 7.38, above.

4. csandlenv. D..F.P., (1962) 3 w.L.n. 694, 7o5(H.t..){Lorc1 Reid) .709 (Lord Raucittre).

Meaning 7.40. While constructing the expression "Safety or interests gggfgtety of the State," Lord Reid said :

State" ex-

plai ned by "Next comes the question of what is meant by the safety Lord Reid.

or interests of the States. "State" is not an easy word. It does not mean the Government. or the Executive. ,.'L'e'rar c'est moi' was a shrewd remiutlc, but can hardly have been intended as deﬁnition even..ilt=F1Inoe of the time. And! do not think that it means;-as counsel urged, the individuals who inhabit these islands." The statue cannot be referring to the inzeliests of all those individuals because they may differ and the interests of the majority are not necessarily the same as the interest of the State. Again we have seen only too clearly in some other countries what can happen if you personify and almost deify the State. Perhaps the country or the realm are, as good synonyms as one can ﬁnd and I would be prepared to accept the organised community as coming as near to a deﬁnition as one can get."

M_eanin_g 7.41. Lord Radcliffe dealt with motive and purpose in these °f('im'{"'~"=' words, "All controversies about motives or intentions or purposes gage. P2): are apt to become involved through confusion of the meaning of planed by the different terms and it is perhaps not diﬂicult to show by analy-

Lord sis that the ideas conveyed by these respective words merge into Rad'-'ﬁmi each other without a clear line of diﬁerentiation. Nevertheless a distinction betweertmotive and purpose, for instance, is familiar enough in ordinary discussion and there are branches of' law in which the drawing of such a distinction is unavoidable. . . . . .[ do not think that the ultimate aims of the appellants1 in bring- ing about this demonstration of obstruction constituted a pur- pose at all within the meaning of the Act. I think that those aims constituted their motive, the reason why they wanted the demonstration, but they did not qualify the purpose for which they sought to enter the airﬁeld.

We may assume that the Courts in India will adopt the same view.

Question 7.42. There is a suggestion that the maximum penalty for °{mi§§|_""'1 offences under sections 3 and 5 should be enhanced to include the ER," con, death penalty, if the actrelates to defence installationsz. The siclered, suggestion raises important and controversial issues as to the with r¢f€- desirability of capital punishment.

rencc to sections 3 The Law Commission in the Report on "Capital Punishment", and 5. 0] 'Fed.

"473. The oifence of espionage should, it has been suggested, he made a capital one. It may be noted, that where espionage

1. The ultimate aim was said to be the prevention of a nuclear war.

2. F.1(l)/71-L.G., S.No. 21 (Suggestion forwarded by one Ministry}.

3. 35th Report (Capital Punishment), paragraphs 473-474.

. -;.--'ii3' ' '\I 45 ' consists of acts which constitute an abetment of the waging of war against the State, the offence would be amply covered by section 121 of the Indian Penal Code, which allows the penalty of death. Other cases of collection and transmission of State secrets mostly fall under the Oﬂicial Secrets Actl, section 3(1) of which provides the maximum punishment of imprisonment up to 14 years. Intimes of emergency, additional provisions are made by special _1egislation3.

474. Thus, under section 5(4) of the Official Secrets Act, 1923, as amended by the Defence of India Act3, a person guilty of an offence under section 5 of the Official Secrets Act shall, if such olfence is committed with intent to wage war or to assist any country committing external aggression against India, be punishable with death, or imprisonment for life or imprisonment upto ten years »etc''.

We think that the provisions of the law on the subject as they exist now are, in substance, adequate."

7.43. We have also come to the same conclusion. We are aware that in some countries spying (disclosure of national defence secrets) is a capital oﬂ'ence5. These are China (Taiwan), Daho- may, Spain, some States of the U.S.A., France, Greece, Iran, Luxembourg', Poland, United Arab Republic, Central African Republic, South Africa, El Salvador, Somalia (Northern), Cze- choslavakia, Togo, Turkey, U.S.S.R. and Yugoslavia. But, having regard to the recent positive and unmistakable trend towards abolition of capital punishment all over the world, we do not think that death penalty for any olfence under the Act would be acceptable at the present day, except during emergency or war.

7.44. There 18, however, another point relating to punishment which requires attcrltion. Section 3(1) classiﬁes the offences into two parts, according to their gravity and provides for two types of punishment. The olfender (to quote the relevant portion) "shall be punishable with imprisonment for a term which may extend, where the olfence is committed in relation to any work of defence, arsenal, naval, military or-air force establishment or station, mine, mine-ﬁeld, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret ofﬁcial code, to fourteen years, and in other cases to three' years."

Death pen-

alty for spying not recom-

mended.

Question of punish-

ment un- der section 3(1) C0115]-

dered.

1. The Oﬂicial Secrets Act, 1923 (19 of 1923).

2. See the Defence of India Act, 1962.

3. See section 6(1)(b). I Defence of India Act, 1962 (51 of 1962).

4. See also rule 34(6), rule 3S(l)(a) and (b), rule 38(5), ru1e'39(l)(a) and rule 39(2), Defence of India Rules, 1962.

5. See U.N. Publication on Capital Punishment (1962), Table at the end.

6. Luxembourg is, however, de facto an abolitionist country. 34 M of LawI7l---4 Imprison-

ment under section 3(l}--- Re-

commen-

dation for amend-

ment.

Fine to be added.

Drafting changes recom-

mended in section 3(1).

Section 3(2). ﬁrst half, (Evi-

dence of purpose prejudicial to national security) to be extend-

ed.

7.45. This classiﬁcation is unnecessary. Apart from the involved nature of the language used, it may be difﬁcult in prac- tice to classify- offences into those two parts. It would -not easy to demarcate precisely the scope of the quoted words, especia- lly the phrase "in relation to the naval, military or air force aifairs of Governmen " If a wide meaning is given to that phrase, it may include almost all oﬁences under section 3(1) within the -grave:

part punishable with 14 years. We, therefore, recommend that the , distinction" should be removed, and the maximum should be 14 years' rigorous imprisonment. leaving it to the discretion of the trying court to impose a lesser sentence, accord- ing to the facts and circumstancescf each case.

7.46. We also propose the inclusion of ﬁne as an additional punishment, in section 3(1).

7.47. No other change of substance is necessary in sub-section (1) of section 3, but we recommend a few. drafting changes.

Some of these are consequential on the amendments proposed in the deﬁnitions, e.g., removal of the word 'plan'1 from section 3(1), and change in the expressions indicating prejudice to sovere- ignty and integrity of India or safety or interests of the State.' The lengthy phrase "which is calculated to he, might be, or is intended to be, useful to any enemy", which occur in section 3, is proposed to be replaced by the shorter but equally comprehen- sive phrase "which is intended or likely to be".

In clause (c) of section 3(1), words referring to the various types of documents or information are proposed to be shortened. In particular, the expression 'document or information' is regard- ed as suﬂicient to cover code words and pass words. It also appears to be desirable to split up the clause into two portions. _(i)3 obtaining etc. a document, or information, and (ii) publishing It .

7.48. Section 3(2) contains a special rule of evidence which relaxes the high standard of proof required for conviction on a criminal charge.

The ﬁrst part of this sub-section states that on a prosecution for an offence punishable under section 3(1), it shall not be nece- ssary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted, if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to 1:he safety or interests of the State.

I. See proposed deﬁnition of "sketch"; paragraph 7.36, above.

2. Sec proposed deﬁnition of the expression "prejudicial to national security".

3. Revised drafts of penal provisions in sections 3 to 10 are given in para 7.86, below.

47 -

i We consider that this partof section 3(2) should be extended to a few other olfences also. In all those offences, the essential ingredient is the mental element, namely, the existence of a pur- pose prejudicial to the national security. Such a purpose cannot be ordinarily proved by direct evidence and has to be inferred' from the facts and circumstances of such case and the antecedents of the accused. Hence the rule of evidence applicable for proof of the offence of spying may, with equal justiﬁcation, be applied for those oifences also.

Our recommendation will necessarily involve the omission of sub-section (4) of section 6, because according to our sugges- tion, the aforesaid special rule of evidence will be applicable? to the whole of section 6. .

7.49. The second part of section 3(2) provides that if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place or relating to anything, _in such a place, or any secret oﬁicial code or pass word is made, obtained, collected, recorded published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved itappears that his purpose was a purpose prejudicial to safety or interests of the State, such sketch, plan, model, article, note, document, information, code or pass word shall be presumed to have been made, obtained, collected, recorded, published, or communicated for a purpose prejudicial to the safety or interests of the State. ' ' 7.50. This provision corresponds to section 1(2) of the (English) Oﬂicial Secrets Act, 191], as amended in 1920. The latter, in its turn, appears to follow the language of a parallel provision in the (English, .Prevention of Crimes Act, 1870. That Act, provides with reference to the oﬁence of vagrancy3, that "in proving the intent to commit a felony (now an arrestable offence), it shall not be necessary to show that the person sus- pected was guilty of any particular act or acts tending to show his purpose or intent and he may be convicted if from the cir- cumstances of the case, andfrom his known character as proved to the justice of the peace or court before whom or which he is brought, it appears to such justice or court that his intent was Section 3(2), latter half-pre-.

surnptions in prosecu-

tions for swims-

Compara-

ble English p revision.

1. (a) Para~n'1i1itary groups;

(b) Treasonable relations with foreign State etc. or institution etc.

(d) Sabotage;

(e) Spring;

(f) Divulging ofﬁcial secrets;

(8) Using false oﬂicial uniform etc.

2. At present, section 6(4) applies the provisions of section 3(2) only where the offence relates to speciﬁed matters. _ _ . 3- Section 15. Prevention or Crimes Act, mp.

General rule as to evidence of bad char-

actermodi-

ﬁed.

Section 3(2) second part to be combined with sec-

tion 4.

Section 4(1).

Section"

4(2)-

to commit an arrestable offence; and the provisions of the said section, as amended by this section shall bein force in Scotland and Ireland . . . . . . "

7.51. It is well--establjshed in England1 as well as in Indiaz, that (subject to certain exceptions not relevant for the present purpose). evidence of bad character of the accused cannot be given. The provision in section 3(2) is in the nature of an excep- tion to that rule. The exception has, apparently, been considered necessary in view of the nature of the offence, and the diﬁiculty of securing direct evidence of purpose.

7.52. We recommend that the second part of section 3(2) should be combined with section 4, as they both deal with rules of evidence3.

7.53. Section 4(1) provides that in any proceedings against a person for an offence under section 3, the fact that he has been in communication with, or attempted to communicate with, a foreign agent, whether within or without India, shall be relevant for the purpose of proving that he has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to be or might be, or is intended to be, directly or indirectly, useful to an enemy.

This provision creates no presumption, but establishes rule about "relevance" of one fact to another. The relevance is for both the acrus reus and the mens we as will be clear if refer- ence is made to section 3. The act of obtaining information useful to an enemy, for a purpose prejudicial to the safety or the interests of the State, is, under section 3, punishable with im- prisonment for not more than 14 years. Section 3, thus, requires

(i) an act, and (ii) a purpose. The act is obtaining of the informa- tion. The purpose is one prejudicial to the interests or safety of the State. Under section 4(1), communication with a foreign agent is relevant, both to prove the act of obtaining information which might be useful to an enemy, and to prove the purpose.

7.54. Section 4(2) contains a variety of provisions relevant for decision of the question whether a person can be said to have been in communication with a foreign agent within the meaning of sub-section ( 1). Two of the provisions contain rebuttable presumptions, and one provision is in the nature of a deﬁnition applicable in construing one of the rebuttable presurnptions.

Under clause (a) of the sub--section, a person "may be presumed to have in communication with a foreign agent" if---

[i) he has, either within or without India, visited the address of a foreign agent or consorted or associated with a foreign agent, or

1. R. v. Butter wasser, (1947) 2 All ER. 415 (C.C.A.). 2» Section 54, Evidence Act.

3. Re-drafts of sections 3(2) and 4 are included in the procedural provisions at the -nd of this Chapter.

Paragraph 7.119, below.

(ii) either within or without India, the name or address of, or any other information regarding, a foreign agent has been found in his possession, or has been obtained by him from any other person;

Under clause (b), the expression "foreign agent" includes any person who employs or has been employed, or in respect of whom it appears that there are reasonable grounds for suspecting him of being or having been employed, by a foreign power, either directly or indirectly, for the purpose of committ- ing an act, either within or without India. prejudicial to the safety or interests of the State. it includes also a person who has or is reasonably suspected of having either within or without India, committed, or atternptd to commit, such an act in the interests of a foreign power.

Under clause (c) any address, whether within or without India, in respect of which it appears that there are reasonable grounds for suspecting it of being an address used for the receipt of communications intended for a foreign agent, or any address at which a foreign agent resides, or to which he resorts for the purpose of giving or receiving communications, or at which he carries on any business,-"rnay be presumed" to he the address of a foreign agent, and communications addressed to such an address to be communications with a foreign agent.

7.55. The ECIHS rear of obtaining useful information may, in short, be evidenced by attempted communication with the per- son reasonahly suspected of being a foreign agent. Proof of the mensrea is facilitated by allowing, in evidence 1, statements of the accused's past behaviour and character, under section 3(2).

7.56. These presumptions and rules of evidence may appear to be very drastic. But they are very necessary for offences of this type. We may, in this connection, refer to a view expressed in the U.S.A. where such presumptions are not available. An American writer has observed}-

"A further point in the program to improve our security posture is that we shouldreview and tighten up our espionage laws in certain respects. Since 1946, on several occasions, atte- rnpts, all abortive, have been made by the executive branch of government to amend the Espionage Act so that a prosecution would not fail merely because of diﬁiculties in establishing "an intent or reason to believe" that the information wrongly divulged or passed to a foreign government was "to be used to the injury of the United States or to the advantage of a fore- ign nation. This is hard to prove. Fortunately, the requirements of proof of such intent has already been eliminated in cases involving restricted data under the Atomic Energy Act and with regard to disclosure of classiﬁed information in the ﬁeld proof of mans i-ea facilitated.

Drasiic presumin-

tions necessary.

I. Paragraphs 7.49 and 7.50, above.

2. Allen Dulles, The Craft of Intelligence, (Harper), (1963), page 245.

Minor changes in section 4 recom-

mended.

Section 5(1).

Overlap-

ping in part bet-

ween sec-

tion 3(1) and section 5(l).

Wide scope of section5(1) and 5(3).

All conﬁ-

dential commun i-

cations covered by section 5(1).

of 'communications intelligence'. The ' requirements still holds, however, in cases where other types of secret and classi- ﬁed information are divulged". ' 7.57. We do not recommend any change in this section, except the transfer of the deﬁnition of "foreign agent" to the deﬁnition clause1 and the merger of section 3(2) with this section'.

7.58. Section 5(1) punishes the wrongful communication of the speciﬁed documents or information by a person in possession or control of the document or information. These may be conveniently described as "official secrets."

7.59. The wrongful communication of an ofiicial secret is also dealt with in section 3 (1) (c) and there may be some overlapping between that section and section 5(1). But section 3(l)(c) is restricted to communications intended to be useful to an enemy or relating to matters likely to aifect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States (after the amendment made by Act 24 of 1967). Section 5(1) on the other hand is somewhat wider, and penaiises not only communication and use for a purpose prejudicial to the safety and interest of the State but also unauthorised retention, or failure to take care of such oﬂicial secret.

7.60. Section 5 (1) and section 5 (3) speak, respectively, of "any person", "any foreign power or in any other manner pre- judicial to the safety of the State", and "directly or indirectly", to any foreign power or in any other manner prejudicial to the safety or interest of the State". These indicate suﬁiciently the wide scope of the section.

7.61. The wide language of section 5(1) may lead to some controversy. II penalises not only the communication of inform- ation useful to the enemy or any information which is vital to national security, but also includes the act of commu- nicating in any unauthorised manner' any kind of secret infor- mation which a Government servant has obtained by virtue of his oﬂice. Thus, every noting in the Secretariat ﬁle to which an oﬁicer of the Secretariat has access is intended to be kept secret. But it is notorious that such information is generally communicated not only to other Government servants but even to some of the non-official public in an unauthorised manner. Every such information will not necessarily be useful to the enemy or prejudicial to national security. A question arises whether the wide scope of section 5(1) should be narrowed down to unauthorised communication only of that class of informa- tion which is either useful to the enemy or which may prejudi- lcially affect the national security leaving unauthorised commu- nication of other classes of secret information to be a mere

1. Paragraph 7.26, above.

2. Paragraph 'X52, above.

5} breach of departmental rules of justifying disciplinary action. It may, however, be urged that all secret information accessible to a Government servant may have some connection with national security because the maintenance of secrecy in Govern- ment- functions is essentially for the security of the State. In this view, it may be useful to retain the wide language of this section, leaving it to the Government not to sanction prose- cution where leakage of such information is of a comparatively trivial nature not materially affecting the interests of the Statel.

7.62. Incidentally, we may point out that a query was raised whether the words in this sub-section are wide enough to include retired or dismissed Government oﬂicers also. We think that they are. The Words "has held)" should, in the context, be taken as including retired or dismissed Government servants also.

7.63. The language of sub-section (1) of section 5 is cum- bersome and lacks clarity. Hence,. without any change in substance, we recommend the adoptlon of the drafting device separately deﬁning "official secret" as including the enumerat- ed classes of documents and information.

7.64. The punishment for offences under sub-section (1) of section 5 is, at present, mentioned separately in section 5(4). We propose to include it in sub-section (1). Further, the present punishment---i1'np1'isonment of either description for three years or-ﬁne or both--is, in our view, inadequate, for some cases. We propose a maximum of seven years for important official secrets, and three years in other cases. In the former case, imprisonment will be mandatory, 'out fine can be added. In the latter case, the existing punishment will continue. Under the category of important oiﬁcial secrets we include secrets intended or likely to be directly or indirectly useful to an enemy or prejudicial to the national security.

7.65. Section 5(2) penalises voluntary receipt of oﬁicial secrets (fully described in that sub-section) if the offender at the time of such receipt knew or had reasonable grounds to believe that the secrets were communicated in contravention of the Act. It is extremely diﬂicult __to prove this mental ele- ment namely that he knew or had reasonable grounds to believe that the secrets were communicated in contravention of the provisions of the Act. The language of this sub-sect:ion_ is somewhat similar to the language of section 411, I.P.C. which requires guilty knowledge on the part of a person retaining stolen property. Just as there is a presumption of such guilty knowledge arising out of recent possession [see illustration

(a) to section 114 of the Evidence Act] we consider that a simi- lar presumption should be made to the effect that where a per- son is in possession of an official secret without lawful autho-

ritythere may, be a rebuttable presumption that he received ', Applica-

bility to retired Govern-

ment SCPVal'|lS.

Drafting change re-

commend-

ed in sec-

tion 5(1).

Provision of section 5(4) as to punish-

ment to be amended.

Section 5(2)--- Re-

oeiving ofﬁcial secrets.

1'.'7§hri Narasin-iham,' however, has a reservation on this subject.

it knowing or_ having reason to believe that it was communi- cated to him in contravention of the Act.

Section '{.66. Section 5(3) 'deals with certain acts regarding infor- ggittg 5° mat_ion_rela_ting to munitions of war. Brieﬂy,'a person who, ' ' having in his possession or control any sketch etc. document or information which relates to munitions of warl, communi- cates it directly or indirectly to any foreign power or in any other manner prejudicial to the security of the state, is punished under the sub-section. We think that most cases of such com- munication would fall either under section 3{l)(c) or under section 5 (1) (a), and, therefore, do not see any need for retain- ing sub-section (3). We recommend that it should be omitted as a redundant provision.

Section 7.67. Sub-section (4) of section 5 prescribes the punishment 5(4). for offences under the section. It has already been dealt with.= Section 6. 7.68. Section 6 punishes a variety of acts when committed 3-"d*h=V8- for the purpose of gaining admission to a prohibiI.ed placeii fgsycgf or for any other purpose prejudicial to the safety of the State.

cl. . . . . .

me This section deals with otfences relating to three kinds of articles, which can be coveniently labelled as oﬂicial uniforms, ofﬁcial passesor documents and official seals. The dominant object of the section is to punish frauds pertaining to any of these three, when committed for the purpose mentioned above. Many of the punishable acts would, no doubt, fall under the oﬁ'ence of cheating or the offence of forgery (or allied offence s) under the Penal Code. What distinguishes the offences under the Oﬂicial Secrets Act from such crimes under the Penal Code. is the purpose behind the offences, and it is this purpose which renders appropriate their inclusion in a law primarily design- ed to protect national security. It is this purpose, again. which constitutes the common link between types of conduct which are otherwise before hetereogeneous in character. "

This essential link may sometimes be overlooked due to the length of sentences in this section and their lack of clarity.

section 7.69. In the opening paragraph of section 6(1), the purpose 6(1), is described as one of gaining admission to aprohibited place, Opening (or of assisting another person to do so), pr "any other pur- g':J"r'°'§'3Ph' pose prejudicial to the safety of the State". The word 'other' some,» to is not correctly used in this context. it implies that the pur- beornitted. pose mentioned earlier in the paragraph, namely, the "purpose of gaining admission or of assisting any other person to gain admission to a prohibited place", is necessarily one prejudicial to the safety of the State. But that view would coriﬂict with

1. "Munitions of war" is 'deﬁned in section 2(5).

2. See discussion relating to punishment under section 5(4), Paragraph 7.64, above.

.3. Section 6(2), however, does not include the purpose' of gaining admission to a pro- hibited place.

' 53--

the opening line of section 3(1). Section 3(1) (so far as is rele- yant) punishes a person, who, "for any purpose prejudicial to the safety or interests of the State", approaches etc. a pro-

hibited place. If gaining admission to a prohibited place necessarily and in ail cases indicative of a purpose prejudicial to safety of the State, then there was no need to mention that purpose in the opening paragraph of section 3(1).

Hence the word 'other' is misleading in the opening para- graph of section 6(1), and should be omitted.

7.70. We further recommend the shortening of clause (a) in section 6(1) by substituting the expression "armed force"

in place of the words referring to naval, military and air force. ' 7.71. Clause (b) of section 6(1) punishes a person who makes any false statement, for the above purpose, orally or "in writing in any declaration or application" or in any document signed by the offender. The quoted words are,' in our view, unneces- sary, as the word 'document' would cover writing in a decla- ration or in an application. We, therefore, propose' to omit them.

7.72. Clause (c) of section 6 (1) punishes a person who forges, alters or tampers with, any passport or naval, military etc. pass, permit, certiﬁcate etc. or other document of a simi- lar character, as well as a person who knowingly uses or has in possession any forged etc. passport. The Word "know- ingly", which occurs in the latter part, does not occur in section 1 (1) (c) of the English Act of 1920. The word was inserted in the Indian Act as a result 'of the amendment suggested by Shri K.S.L. Agnihotri1, which was accepted by Government} No change of substance is needed in clause (c). But we propose to add a deﬁnition of "official document" separately, and this enables the clause to be shortened.

7.73. Clause (cl) of section 6 (1) punishes a person who, for the speciﬁed purpose--(i) personates a person holding an ofﬁoe under Government, or (ii) falsely represents oneself to be or not to be a" person to whom an official document or secret oﬁicial code etc. has or has not been communicated, or (iii) with intent to obtain an oﬂicial document etc., knowingly makes a false statement. It needs no change of substance.

7.74. We recommend a slight recasting of this clause for securing grammatical accuracy, and also suggest that the latter part of this clause relating to making a false statement could be made into a separate clause. ' Section 6(1)(a) to be shorten-

ed.

Section 6( 1 )(b}---

verbal changes re-

commend-

ed.

Section 6(l)(c)--- to be shorten-

ed after ad-

dition of deﬁnition of "oﬂicial document".

Section 6( llld)-~ -

persona-

tion and false re-

presenta-

tions.

Drafting changes recom-

mended.

1. Legislative Assembly Debates, Vol. 111, No. 44, dated February 24, 1sii3._

2. Also see Council of States Debates, dated 8th March, 1923, Vol. III, No. 44-.

Section 6(l)(e) to be shorten-

ed after ad-

ding deﬁni~ tion of 'official seal'.

Section 6(1)(_c)--

Portion re-

lating to counter-

feit die to be omitted.

Section 6(2}(a).

Section 8.

7.75. Clause (e) of section 6(1) punishes the use or possession of certain dies, seals and stamps without the authority of Gov- ernment or the authority concerned. Brieﬂy, the dies, seals or stamps with which the clause is concerned are those belong- ing to or made by Government etc. The clause needs no change of substance. But we propose to deﬁne "oﬂicial seal" sepa- rately, thereby enabling a shortening of the clause.. Also, we propose to transfer the matter contained in section 6(2)

7.76. The last portion of section 6(1) (e) punishes a person who knowingly uses or has in his possession or under his control "any such conterfeited die" etc., i.e., any counterfeit oﬁicial seal. This appears to be unnecessary, since section 6(2)(c)1 will cover it. We therefore propose to omit this por~ tion.

7.77. In clauses (a) and (b) of sec1ion'6(2) minor {verbal .

changes alone are suggested.

7.78. Clause (c) of section 6(2) deals with the offence of manufacturing without lawful authority or excuse (and other acts in respect of), "any such die, sea] or stamp as aforesaid"

i.e., as is referred in section 6(l)(e). We have already recom-- mended? transfer of the substance of this clause to section 6(1) (6)-

7.79. Section 6(3) needs no change of substance.

7.80. As already recomn1ended3, sub--section (4) of section 6, need not be separately retained, in view of the proposed exten~ sion of the scope of section 3(2), ﬁrst half.

6.81. Section 7 punishes interference with oﬁicers of the police or members of the armed forces of the Union. But the interference must be "in the vicinity of any prohibited p1ace",----a very important ingredient not brought out in the marginal note. The words "of the Union" in subsection (1) should be omitted, in View of the proposed deﬁnition of "armed forces".

7.82. Section 8 imposes an obligation to give information ' about certain matters, on a demand being made by (i) A. Superin-

tendent of Police or other police officer not below the rank of Inspector. empowered by an Inspector-General of Police etc-., or (ii) any member of the armed forces engaged in guard, patrol, sentry or fsimilar duties. This corresponds to section 6 of the English Act of 1920, as it stood before 1939.

1. Paragraph 7.78, below.

2. See discussion relating to section 6{l)(e), paragraph 7.75, above. '

3. Paragraph 7.48, above. '

4. See the proposed deﬁnition of "armed forces".

We propose to substitute "Sub-Inspector" for "Inspector", as it appears that the present restriction cause some practical difticulty. We also propse to put the portion relating-to armed forces ﬁrst, as that is_of greater practical importance in the con- text of this section.

7.33. Section 9 punishes any person who attempts to com- mit or abets the commission of "an offence under the Act. Such person is punishable with the same-punishment and is liable to be proceeded against as if he had committed such offence. This section corresponds to section 7 of the English Act of 1920.

We are of the view that section 9 can be safely omitted. Abetment of an offence under the new law can be taken care of by the general provision in the Penal Code. So far as attempts are concerned, many of the acts punishable under the penal sections, by their very terms, cover them.

7.84. Section 10 prescribes the penalty for harbouring spies. Section 7 of the English Act of 1911, on which our section 10 is based, is wider in one important respect, namely it covers the harbouring of a person about to commit or who has commit- ted any offence under the Act. The Indian section is limited to the harbouring of a person who has committed one of the more serious offences under the Act.

Further, the Indian section creates two separate offences. The ambiguity caused by the use of the words 'omits or re- fuses' in section 7 of the English Act, has been avoided, and it has been provided that the -information shall be given on de- giand to the police oﬂicers who may demand it under section . The ﬁrst is a departure of substance. The second is a matter of drafting, and represents a change made by the Select Com- mittee on the Indian Official Secrets Bill, 1922'.

it should, ﬁnally, be noted that section 10, in some respects, goes beyond section 212, Indian Penal Code, which is the gene- ral provision punishing the harhouring of offenders.

7.85. No change of substance is needed in this section. But we propose to substitute3 'Sub-Inspector' for 'Inspector°_ in sub-section (2) which relates to the duty to give, on demand, {certain information -,to the speciﬁed ofﬁcer.

Section 9 to be omit-

ted.

Section I0.

Minor changes re-

corn mend -

ed.

I 1.. Report of the Select Committee, 20-,1-I923, portions relating to eiaiu-se 10, Ofﬁcial secrets Bill.

2. Cf amendment proposed in section 8(l), Paragraph 7.82, above.

Redrafts of penal pro-

visions in sections 3 to 10, Offi-

cial Secrets Act.

Divuiging oflicial secrets.

_56 7.86. The penal sections to be taken from the Official Secrets Act (as we propose to redraft them) will be as follows : 1 "33. If any person, for any purpose prejudicial to the national security,----- \,

(a) enters, inspects, passes over, approaches, or is in the vicinity of, a prohibited place; or

(b) makes any model, sketch or note which is intended or likely to be, directly or indirectly, useful to an enemy; or

(c) obtains, collects or records any such model, sketch, or note as aforesaid, or any article, documents or information which is intended or likely to be, directly or indirectly, useful to an enemy, or relates to a matter the disclosure of which is likely to be prejudicial to the national security; or , (d) punishes or communicates to any other person any such things or information as aforesaid, he shall be punishable with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to ﬁne.

34. (I) If any person, having in his possession any official secret,--

(a) uses it for the beneﬁt of any foreign State or in any manner prejudicial to the national security; or

(b) wilfully communicates it to any person other than a person to whom he is authorised to communi- cate it, or a person to whom it is, in the interests of State, his duty to communicate, or a Court of Justice; or

(c) retains it when he has no right to do so, or when it is contrary to his duty to do so, or wilfully fails to comply with any direction issued by lawful authority with regard to its return or disposal; -or r ;

(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of', the ofiicial secret, he shallw

(i) if the oﬂicial secret is one speciﬁed in clause

(b) or clause (c) of section 33, be punishable with rigorous imprisonment for a term which may extend to seven years and shall also be liable to ﬁne;

(ii) in other cases, be punishable with imprison- ment for three years, or with ﬁne, or with both.

1. The rules of evidence and presumptions in section 3(2-) and section 4, Oﬂicial Secrets Act, will appear at the end of the Chapter.

(2) If any person receives any official secret knowing or having reason to believe that it is communicated to him in contravention of sub-section (1) of this section or section 33, he shall-

(i) If the official secret is one speciﬁed in clause

(b) or clause (c) of section 33, be punishable with rigorous imprisonment for a term which may extend to seven years, and shali also be liable to ﬁne;

(ii) in other cases, be punishable with imprison.- ment for three years, or with ﬁne, or with both.

(3) For the purposes of sub-section (2) a person who is in_ possession of an official secret without lawful authority may be presumed, until the contrary is proved to have received it knowing or having reason to believe that it is cornmunicatd to him in contravention of sub--section (1) of this section or section 33, as the case may be.

_ (4) In this section, "oﬁicial secret" means any thing or information----

(a) which is speciﬁed in clause (b) or clause (c) of section 33; or

(b) which has been entrusted in conﬁdence to the offender by any person holding oﬂice under the Govern- ment; or ,(c) which the offender has obtained or to which he has had access owing to his position as a person who holds or has' held oﬂice under Government, or as a person who holds or has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held! such an oiﬁce or contract.

35. (1) If any person, for the purpose of gaining admis- sion, or of assisting any other person to gain admission, to a prohibited place or for any purpose prejudicial to the national security,-

(a) uses or wears, without lawful authority, any armed force, police, or other official uniform, or any uniform so nearly resembling the same as to be cal- cuiated to deceive, or falsely represents himself to be a person who is or has «been entitled to use or wear any such uniform; or

(b) orally or in any document signed by him or on his behalf, knowingly makes, or connives at the making of, any false statement or any omission; or

(c) forges, alters, or tampers with any ofﬁcial docu- ment, or knowingly uses or has in his possession any such forged, altered, or irregular ojﬁcial document; or I 0 Using false oﬁicial uni-

forms, do-

cumeuts and seals for pur-

pose pre-

judicial to national security.

.53 (cl) personates, or falsely represents himself to be, a person holding office under Government, or falsely represents himself to be or not to be a person to whom an ofﬁcial document has been duly issued or GOI'IlIl'1l.ll.'ll- cated; or

(e) with intent to obtain an oﬂicial docurnent whether for himself or any other person, knowingly makes any false statement; or (1') without lawful authority, uses, has in his po- session or under his control, manufactures or sells any oﬂicial seal, or any die, seal or stamp so nearly resembling an olﬁcial seal as to be calculated to deceive, or counter- feits any olﬁcial seal, he shall be punishable with rigorous imprisonment for a term which may extend to three years, or with ﬁne, or,witl1 both.

(2) If any,person, for any purpose prejudicial to the national security,--

(a) retains any oﬂicial document, whether or not completed or issued for use, when he has no right to retain it, or when it is contrary to his duty to retain it, or wil- fully fails to comply with any directions issued by, or under authority of, Government with regard to its return or disposal thereof; or

(b) allows another person to have possession of, or communicates to another person, any official docu- ment issued for his use alone; or I (:2) without lawful authority or excuse, has in his possession any official document issued for the use of some person other than himself; or

(d) on obtaining possession of any oﬂicial document", by ﬁnding or otherwise, wilfully fails to restore it to the person or authority by whom or for whose use it was

-issued, or to a police olﬁcer;

he shall be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with both.

(3) In this section,--

(a) "oﬁicial document" means any armed force, police or ofﬁcial pass, permit, certiﬁcate, licence or other documentof a similar character, and includes any secret oﬁicial code or pass-word;

(b)_ "oiﬁcial seal" means any die, seal, stamp of or belonging to, or used, made or provided by any depart- ment of Government, or by any diplomatic or armed force authority appointed by, or acting under the antho- rity of, Government.

X) 59

36. If any person in the vicinity of any. prohibited place obstructs, knowingly misleads or otherwise interferes with or impedes, any police oﬂicer or any officer or member of the armed forces engaged on guard, sentry, patrol, or other similar duty in relation to the prohibited place, he shall be punishable withjmprisonment which may extend to three years, or Wlth ﬁne, or with both.

37. If any person fails---

(a.) to give on demand to any member of the armed forces engaged on guard, sentry, patrol or other similar duty, or to any superintendent of Police, or to any other police oﬂicer not below the rank of Sub-Inspector empowered by an Inspector-General or Commissioner of Police in this behalf, any information in his power relating to an offence or suspected offence under section 33 or section 34, or _ -

(b) If so required, and upon tender of his reasonable expenses, to attend at such reasonable time and place as may be speciﬁed for the purpose of furnishing such information, he shall be punishable with imprisonment for a term which may extend to three years, or with' ﬁne, or with both.

38. (1) If any person knowingly harbours any person whom he knows or has reasonable grounds for supposing to be a person who is about to commit or who has committed an oifence under section 32 or section 33, or knowingly permits to meet or assemble in any premises in his occupation or under his control any such persons, he shall be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with both.

(2) If any person who has harboured any such person as aforesaid, or who has permitted to meet or assemble in any premises in his occupation or under his control any such persons as aforesaid, fails to give on demand to a Superinten- dent of _ Police or to a police officer not below the rank of Sub-Inspector empowered by an Inspector-General or Commi- ssioner of Police in this behalf, any information in his power relating to any such person or persons, he shall be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with bot ."

7.87. The procedural provisions in the Oﬂicial Secrets Act may not be considered.

I 7.88 Under section 11 (1), if a Presidency Magistrate, Magis- trate of the_ﬁrst class or sub-divisional Magistrate is satisﬁed, by information on oath, that there is reasonable ground for suspecting that an olfence under the Act "has been or is about Interfering with the Police or ariried for-

ces on duty at a prohi-

bited place.

Penalty for harbouring saboteurs or spies.

Procedural provisions in the Official Secrets Act.

Section II (1) -Search

-warrants Magistrates Section 11 (2) and 11 (3). .Search by the po-

lice.

Exceptional powers needed.

Applicabi-

lity of Code of Criminal Procedure.

r Position considered.

to be committed", then he may grant a search warrant authoris- ing the speciﬁed oﬂicer to enter, "at any time," "any premises or place named in the warrant", (if necessary, by force) and to search the premises or place and "every person found therein", The police oﬂicer can, further be authorised to seize any sketch, plan, model, article, note or document or anything of a like nature, or anything which is evidence of an oﬁence under this Act having been or being about to be committed and with regard to which he has reasonable ground for suspecting that an offence under this Act has been or is about to be committed.

7.89. Under section 11(2), where it appears to a police officer, not below the rank of Superintendent, that the case is one of great emergency, and that in the interests of the State immediate action is necessary, he may, by written order under his hand, give to any police ofﬁcer the like authority as may be given by warrant of a Magistrate, as aforesaid. But sub-section (3) provides that he must report such action to the Chief Presidency Magistrate (in presidency town) or to the District or Sub-divisional Magis- trate (outside a Presidency town).

7.90. It_ is obvious that these powers are of an exceptional character, in so far as they cover even situations where an offence is about to be committed, and can be exercised at any time and in respect of any place. At the same time, they are needed in the interest of the security of the State. They are exercisable only by judicial or police ofﬁcers of a high rank, and this is a sufﬁcient safeguard against abuse.

7.91. There is, however. a matter of considerable interest which arises by reason of the fact that the Code of Criminal Pro- cedure, 1898, has also a set of provisions which authorise Magis- trates to issue search warrants1,' and also empower an officer in charge of a police station? to conduct or order searches for the purpose of an investigation.

7.92. We therefore considered it proper to go into two ques- tions, namely,---

(a) how far section 11 of the Act overlaps the power of search under section 96 and section 165, Cr. P.C. and similar _ provisions; and

(b) whether the detailed provisions regulating the exercise of the power of search, as laid'down in the Cr. P.C. (e.g. section 103, Cr. P.C. which requires two witnesses) are to be complied with when conducting a search under section 11

1. Clause 93, Cr. P.C. Bill, 1970 (Existing section 96).

2. Clause 16?, Cr. P.C. Bill, 1970 (Existing section 1965).

I-I It 61 7.93. As regards question (a)1, it may be pointed out that the Magistrates' power under the Code is limited to cases where there is a proceeding pending or imminent'. Section 11 (1), Ofﬁcial Secret Act, on the other hand, contains no such restric- tion. 3 Where an offence has been committed, section 11(1) applies even if cognizance has not yet been taken and is not about to be taken. Further, as regards cases where an offence is likely to be committed, there is no overlapping between the Code and section 11, Official Secrets Act, because the Code does not apply.' 7.94. Hence, notwithstanding the partial overlapping that exists between the Code and section _11, we think that it is pre- ferable to retain section II. The section should not, of course, be taken as superseding the Magistrates' power under the Code,-- though the question is mostly academic having regard to the wide scope of section II.

7.95. As regards question (b)5, our view is that the procedure in the Criminal Procedure Code is not attracted. We recommend that those provisions should, as far as may be, extend to searches under this section. ' 7.96. We think that the provisions of section 11 can be use- fully extended to sabotage i.e. the new olfenceﬁ proposed to be added by us on the subject, since need for issuing search warrant can arise in respect of that offence also.

Change in the nomenclature of Magistrates consequential on separation, involve verbal changes in sections 11(1) and 11(3), and we propose to modify these sub-sections suitably. for that purpose also.

7.97. Section 12 deals with the tender of pardon to a person whose evidence is essential for the successful prosecution for an offence under the Act. The position in this respect may be left to be governed by the general provisions in the Criminal Procedu- re Code.7 As the punishment in most cases, under the Oﬂicial Secrets Act, as now proposed to be amended, will be imprisonment for seven years, or more, the need for a special provision disappears. Section 12 may, therefore, be omitted.

l. Para. 7.92, above.' Magistrat-

es' power of issuing search war-

rants com-

pared.

Section 11 to be re-

tained.

Provisions of the Cr.

RC. to be applied to searches.

Section ll to be ex-

tended to sabotage.

Section 12-

"tender of pardon" to be omitted.

2. That is the result of existing section 96, Cr. RC. and the judicial construction of that section.

3. See para. 7.88, above.

4. See para. 7.88, above.

5. Para, 7.92, above.

6. Para. 7.12, above.

7. Sections 337 to 331%.. Cr.P.C .

31.M of Law/71-5 62 S6-Ction 12 7.98. Before 1967, section 12 dealt with other topics. One of l;';g'2,'° C them was the offences that were to be cognizable. Under the "ma, 0" section as it then stood, only offences punishable with imprison- oﬁ'¢nc¢_ rnent upto fourteen years, and offences under section 6(l)(a) of the Act, were cognizable. Section 12, did not in this respect, go as far as the Canadian section,' which covers even a person about to commit an offence, and also authorises his arrest without warrant and detention by any constable or pol.ice officer.

The English Act' has also a similarly wide provision.

After the amendment of 1967, all oﬁences under the Act have become cognizable, because under the Criminal Procedure Code3 if the punishment provided is imprisonment or three years or more, offences under special laws are cognizable.

Bail 7.99 There was also, before 1967, a provision in section 12 regarding the bailability of offences. The provision was somewhat over-liberal, having regard to the nature of the offence. The sec- tion after its amendment' in 1967, does not deal with bail at all. The matter will, therefore, be governed5 by the Criminal Pro- cedure Code, under which offences under special laws, which are punishable with imprisonment for three years or more, are non- bailable. ' This does not end the matter, because, even where the offence is technically non--'oai1able, bail is not to be refused as a matter of course. In the case of person suspected of an offence connected with the disclosure of secrets of national importance, there is a probability that his ties with India are very thin, and the probability of his absconding is greater than in the case of other offences. This consideration, no doubt, will be taken into account by courts in considering applications for bail. A legislative provisi- on, by way of restriction on the power of the Courts may not be desirable.

5'-'33.°3"°" 7.1120. According to subsection (3A) of section 497, Criminal :g§;:f;;'7 Procedure Code' if, i.n any case triablc by a Magistrate, the trial (3,4), cm), of the person accused of any non-bailabte offence is not concluded C. consider- within a period ofsixty days from the first date fixed for taking °d- evidence in the case, then such person shall, if he is in custody during the whole of the said period, he released on "bail unless, for reasons to be recorded, the Magistrate otherwise directs. Now, there is a suggestion? that this beneﬁt should be denied to the accused tried for offences under the Official Secrets Act. Money. it is stated. is no consideration to foreign agents, and they can afford to jump bail.

. Section 10, Canadian Official Secrets Act, 1939.

. Official Secrets Act, 191].

. Criminal Procedure Code Bill, 1970, First Schedule.

. For the law before 1967, see State v. Jagjit Singh, A.I.R. 1962 S.C. 253. . Criminal Procedure Code Bill, 1970, First Schedule.

. Cf. 41st Report, Vol. 2, pay 168, Clause 446(6).

. F.l(l);'?l-L.C., S. No, 21 (Suggestion forwarded by one Ministry).

-I::\u-JzI.uiu---

7.10]. It does not, however, appear to be proper to insert a rigid provision and to take away thebeneﬁt of the above provi- sion in all cases. The Magistrate has a discretion not to release the accused on bail, even 'if the period of sixty days has elapsed. That discretion should be adequate for practical purposes.

7.102. In one suggestion forwarded to us 1, the position with reference to the three Acts relating to armed forces has been referred to. It has been stated, that section 38 of the Navy Act provides that a person not subject to Naval law who is or who acts as a spy for the enemy is punishable under the Act with 'death.' -(This provision could be applied to persons not other- wise subject to the Navy Act, only if they commit the offence of spying in respect of naval secrets or intelligence). It is stated, that if a similar offence is committed in regard to Army or Air Force secrets or intelligence, then civilian personnel could be tried only under the Oﬂicial Secrets Actz.

7.103. The suggestion is that to remove the existing disability in the Army and Air Force Acts in respect of bringing to trial persons not governed by those Acts for offences of espionage, a provision similar to that in existing section 38, Navy Act should be introduced in the Army and Air Force Act also, to bring civilians under the three Service Acts.

7.104. We consider that it would hardly be appropriate to bring civilians within the laws relating to armed forces. The provision in the Navy Act, whatever be its precise scope. does not appear to furnish a satisfactory precedent. We cannot accept the suggestion.

7.105. Section 13(1) deals with the court competent to try offences under the Act. District Magistrates and presidency Magistrate can try any offence under the Act, while other Magis- trates can do so only if they are of the ﬁrst class and are specially empowered by the appropriate Government. Section 13(2) gives a right to the accused to make a claim to be tried by the Court of Session for an offence under the Act. We propose to omit both the sub-sections. The general provision in the Sche- dule to the Criminal Procedure Code as to the competence of courts will govern the matter. As the punishment for a few offences under the Act is proposed to be increased, most offences will now go to the higher categories of criminal courts.

7.106. Section 13(3) contains certain provisions requiring complaint of the appropriate Government or some officer em- powered by the appropriate Government, as a condition prece- dent to a court's taking cognizance of an offence under the Act, and makes certain other provisions as to the place of trial.

Suggestion to being ci-

vilians with-

in the enactments relating to armed forc-

CS.

Suggestion considered.

No change recommen-

ded.

Sections 13 (I) and I3 (2) to be omitted.

Section 13 (3) to. be amended.

1. F.1.(1)/71-L.C., S. -No. 2 {Suggestion forwarded by one Ministry).

2. The suggestion also discusses the position regarding members of the array and the air force. But that aspect is not of importance for the present purpose.

We propose to substitute sanction' of the appropriate Govern- ment in place of complaint, as the present provision creates difﬁculties in the 'Court. If cognizance is taken only on 3 complaint then the more elaborate procedure provided in the Code of Criminal Procedure for cases instituted on complaint is to be followed, which is dilatory.

I Calcutta ' 7.107. A calcutta case', though not directly involving this 'Case. aspect, may be referred to. It was held in that -case that the Oﬂicial Secrets Act provides for aspecial procedure of complaint, and since a complaint by a person authorised under the Act was required, cognizance was taken under section 190(1)(a) and not under section 190(l)(b) of the Criminal Procedure Code. The procedure for trial would. therefore, be regulated by section 252 of that Code, which applies to cases instituted on complaint.

Position 7.108. The change which we recommended will alter this altered. position, as cognizance will now be taken in the usual rnannerl. Section 13 7.109. Section 13(4) deals with the venue for trial ol'ofl'ences (41 under the Act. a It needs no change of substanceil.

Section 14- 7.110. Sedtion 14 provides for exclusion of the public from proceedings of the Court in prosecutions under- the Act. A judicial decision on the section may be referred to.

In a Calcutta case', an order had already been passed under section 14 excluding the public from the "Court room. The question Fell to be considered whether the granting of copies of documents, under section 173, Cr. P.C. .would be in conflict with the order under section 14. The Magistrate passed a general and vague order granting copies as a matter -of course, in respect of documents as found in his order. But the High Court held that such general order of granting or refusing would not be proper in the instant case. The general rule will be that the opposite parties are entitled to such copies, but in respect of each individual copy paid for, the Magistrate has to consider and apply his mind to come to a ﬁnding whether the grant of the copy would aﬂect his own order under section 14. If there is no such conflict, then the copies may be granted; but if there is conﬁict, then the copies cannot be and should not be granted.

Section 14 'J'.1 ll. Strictly speaking. the section is not required, as there is to be re- a general provision in the Criminal Procedure Code5 on the sub- tained and ject. However, as the section is harmless, it may be retained. extended. __V a___H____ _ l. Romendra Sing}: v. Mihit Chaudhary & Other.»-, A.I.R. 1969 Cal. 535, 538, para, l9.

2. It is proposed to have a general provision requiring sanction of the Central Govern- ment or the State Government for every offence under the law.

3. It is proposed to adopt the principle in section 13(4), Oﬂicial Secrets Act, for all offences under the new law.

4. Superintendent & Rembrancer of Legal Afairs, West Bengal v. Sat')/era Bhowmik and others, A.I.R. 1960 Cal. 535.

l5.19S7ection 352, Criminal Procedure Code, 1898; section 335, Criminal Procedure C ode Bil , 0. ' 04 65 If it» is to be retained,:we think that it can be usefully extended to some of the offences' whichwe propose to include in the law, as an emphasis on the power to hold proceedings in camera can be useful for those oﬁences also.

7-'.ll2. Section 15 deals with the offences by Companies, and needs no change. After its amendment in l967, the section has been brought in line with similar provisions in recent Acts}

7.ll3. So far, we have dealt with espionage. The group with which we are concerned should also include sedition (already contained in the Penal Code).

7'.ll4. We do not consider it necessary to provide specially for insult to the Constitution, the National Flag, or the National Anthem, because the Lolc Sabha has just now passed a Bill which fully deals with the suhject.3 7.115. it was stated during our discussions with oﬁicers of one Ministry that anti"-national slogans, and slogans extolling a country which has committed aggression against India, were frequently written or shouted. Such acts could not be punished at present, and the suggestion made was that this defect in the law should he removed. It appears to us, however, that this is a very minor act of disloyalty, and could even be regarded as a passing phase. We do not consider it necessary to include such offences in a permanent law on national security.

7.116. We considered the question if publicly defaming or maliciously vilifying India or one of the State should be punished. Reference was made in this connection to the German Penal*'--5 Code. We think, however, that if the defamation of this type is really harmful, it would be possible to take action under other provisions. For example. if a class of persons is defarned, section 153A of the Penal Code could be invoked. lf the speech or written causes disaffection likely to lead to a disturbance of public order, the act would amount to sedition.

In the circumstances, no fu.rther legislative provision is called or.

I. (a) Disruptive activity,

(b) Para-military groups,

(d) Treasonable deception, te) Sabotage.

Section 15.

Sedition to be included.

insult to 'ZhE Cons-

titution, "élational "Flag etc. Writing 2tnti-nat1on-

Ell slogans.

Defama-

tion of the State.

2. It is proposed to extend the provision relating to otfenoes by Companies to all offences under the new law.

3. The Prevention of Insult to National Honour am, 1971.

4. German Penal Code, 1871, section 96, para. l(l).

5. Also Draft German Penal Code, section 378.

(6 Accﬁpling 7.117. It was suggested to us that a provision prohibiting titles from ' ' ' - - .

foreign citizens of India frornacceptmg titles from foreign Governments Govern- should be_1ns_erted. It may be pointed out that article 18(2) of ments. the Constitution already prohibits the acceptance of such titles. It was emphasised that there ought to be a penal sanction to en- force It. We do not, however, consider such a provision to be needed. Such cases may be very rare. and, in any case. the con- duct In question has no necessary connection with national secu- rity.

OHWCES *0 7.118. As a result, the following offences should be included b'""°'"d'd' as constituting subversive aetivities:-

(1) Disruptive activity';

(2) para-military groupsz;

(3) Maintaining relations with a foreign State or insti-

tution for a purpose prejudicial to the national ::ecurity3;

(4) Treasonable deception';

(5) Sabotage5 ;

(6) Spring';

(7) Divulging Ofﬁcial Secrets;

(8) Using false oﬁicial uniforms, documents and seals for purpose prejudicial to the national security;

(9) Interfering with the police or armed forces on duty at a prohibited place:

(I0) Failure to give information;

(1 I) 1-[arbouring saboteurs or spies; (12) Seditioif'.

R°"i5ed 7.119, The procedural and evidentiary provisions in the procedural _ and widen- Chapter' relate to.--

tiary pro- . .q .

Visions in (I) search warrants .

36 Chap" (ii) Exclusion of the public from certain p1'oce=edings"';

1. Para. 7.2, above.

2. Para. 7.5., above.

3. Para. 7.6-, 3b0V°v

4. Para. 7.11, above.

5. Para. 7.12, above. 1 F,_ sec para, 7.86, above for spying and other offences.

-7. Para. 7.113. above. - ' , g_ Procedural and evidentiary provisions which are relevant also to oifenees under other Chapters will appear at the end of the new law. _ 9_ Cf, para. 7.83 to 7.96, above» '

10. Cf. para. 11:1, above-

(iii) Evidence of purpose prejudicial to national secu- rityl;

(iv) Presumptions in prosecutions for spying.' The relevant provisions will" be as follows:--

40. (1) If a metropolitan magistrate, magistrate of the ﬁrst class or sub-divisional magistrate is satisﬁed by informa-

tion on oath that there is reasonable ground for suspecting that an offence under any of .the sections 32 to'_§38 has been or is about to be committed, he may grant a search warrant authorising any police oﬂicer named therein, not being below the rank of an officer in charge of a police station,-

(a) to enter at any time any premises or place named in the warrant, if necessary, by force, and (£1) to Search the premises or place and every per- son found therein, and (C) to seize any sketch, model, article. note or docu- ment, or anything of a like nature, or anything which is evidence of an offence under any of the said sections hav- ing been or being about to be committed which he may ﬁnd on the premises or place or any such person, and with regard to or in connection with which he has reason- able ground for suspecting that an offence under any of the said sections has been or is about to be committed.

(2) Where it appears to a police ofﬁcer, not being below the rank of superintendent, that the case is one of great emergency, and that in the interests of the State immediate action is necessary, he may, by written order under his hand. give to any police oﬁicer the like authority as may be given by the warrant of a magistrate under this section.

(3) Where action has been taken by a police oﬂicer under sub-section (2), he shall, as soon as may be, report such action, in a metropolitan area to the Chief metropolitan magistrate, and outside such area to the district or sub-divisional magis- trate.

(4) The provisions of the Code of Criminal Procedure, 1971, shall, so far as may be applicable, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued underfsection 94 of that Code.

41. In addition and without prejudice of any powers which a Court may possess to order the exclusion of the pub- lic from any proceedings, if, in the course of any inquiry into or trial of, any person for an offence under any of the sections Search Warrants.

Exclusion of public from cer-

tain pro-

ceedings.

A. 1 Cf. para. 7.48, above.

2 Cf. para. 7- 49% 1-52 above.

" Evidence of purpose prejudicial to national security.

Presump-

tions in prosecut-

ions for spym g.

fins corresponds to section 3(2), earlier hair. o in rial 5-ecrc,ts'X$t.' W ' 68 28 to 38 or in the course of any proceedings in appcal or revi- sion from such inquiry or trial, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the conesry of the proceedings would be prejudicial to the national security, that all or any portion of the public shalllbe excluded during any part of the hearing, the Court may make an order to that eﬁ'ect,_but the passing of sentence shall in any case take place in public.

42. In a prosecution for an offence under any of the sections 29 to 35, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the national security, and notwith- standing that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved. it appears that his purpose was a purpose prejudicial to the national securityl.

43. (I) In any prosecution for." an offence under section 33, if any sketch, model, article, note, document or inform- ation relating to or 'used in any prohibited place or relating to anything in such a place is made, obtained, collected, record- ed, published or communicated by any person other than a person acting under lawful authority, and from the.circumstan-- cos of the case or his conduct or his known character as prov- ed it appears that his purpose was a purpose prejudicial to the national security: such sketch, model, article, note, document, or information shall be presumed to have been made, obtained. collected, recorded, published or comlninicated for a purport:

prejudicial to the national security'.

(2) In any prosecution of a person for an oifence under c section 33,-

in). the fact that he has been in communication with, or attempted to communicate with, a -foreign agent, whether within or without India, shall be relevant for the purpose of proving that he has. forapurpose prejudicial to the national security, obtained or attempted to obtain information which is intended to be or likely to be. direct-

ly or indirectly, useful to an enerny3; _ (11) a person may be presumed to have been in com- munication with a foreign agent if-

(i} he has, either within or without India visit- ed the address of a foreign agent or con-sorted or associated with 3. foreign agent, or

2. This corresponds to section 3(2), latter halt'. Official Secret: Act.

3. This corresponds to section 4(1), Oiﬁclal Secrets Act.

(ii) either within or without India, the name or address of, or any other information regarding, a foreign agent has been found in his possession or has been obtained by him from any other personlg (C) any address, whether within or outside India, in respect of which it appears that there are reasonable grounds for suspecting it of being an address used for the receipt of communications intended for a Foreign agent, or any address at which a foreign agent resides, or to which he resorts for the purpose of giving or receiving communi- cations, or at which he carries on any business, may be presumed to be the address of a foreign agent, and com- munications addressed to such an address to be communi- cations with a foreign agent".

corresponds to section 4(2)(a), Oﬂicialnﬁiecrets Act.

2. This corresponds to section 4(2)(c), Ofﬁcia] Secrets Act.

introduct-

ory.

Constituti-

onal aspects discussed before the Joint Com-

mittcc.

Activities dealt with in the Act.

CHAPTER 8 SUBVERSIVE ASSOCIATIONS 8.1. A statute equal in importance to the Official Secrets Act is the Unlawful Activities (Prevention) Act, 1967, which was pass- ed primarily to deal with secessionist activities. Pursuant to the acceptance by Government of a unanimous recommendation of the Committee on National integration and Regionalism appointed by the National Integration Council, the Constitution (Sixteenth Amendment) Act, 1963 was enacted empowering Parlia- ment to impose, by law, reasonable restrictions in the interests of the sovereignty and integrity of India, on the freedom of speech and expression, on right to assemble peaceably and without arms and the right to form associations.

The object of the Act of i967 was to check and penalise activi- ties directed against the integrity and sovereignty of India.

8.2. During the consideration of the Bill (which led to the Act of 1967} in the Joint Committee discussions took place as to whether the legitimate expression of one's honest opinion about the giving up of a certain territory to a foreign state, would be attracted by the penal provisions of the Bill. The Attorney- General', while referring apparently to the penal provisions re- lating to 'unlawful activityz', said in his evidence before the Joint Committee3 :--

"Judicially, it is interpreted to mean inciting anyone to ' action for the purpose of obtaining a particular end. May [ say that in my opinion, if we have to give away something or half of our territory and so on, that does not come within that mischief."

8.3. Broadly speaking. the unlawful activities which the Act seeks to control are those which encourage claims to a cession of Indian territory, or secession of any State from India, or disrup- tion of the sovereignty or territorial integrity of India.

The deﬁnition in the Act is as follows:--

"unlawful activity", in relation to an individual or asso- ciation, means any action taken by such individual or ctssociation (whether by committing an act or by words, either spoken or written, or by signs or by visible-representation or otherwise),-

(I) which is intended, or supports any claim, to bring about, on any ground whatsoever, the eession of . st: ck. Daphtary.

2. Szct ion I3.

3. Lok Sabha, Joint Committee on the Unlawful Activities (Prevention) Bill. 1957'» 13\.;d.;nce,(November, 1967), page 12.

70 71

a part of the territory of India or the secession of a part of the territory of India from the Union. or which incites any individual or group of individuals to bring about such cession or secession;

(it) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India."

8.4. Equally important is the definition' of "unlawful asso- Dﬁﬁﬂltloﬂ

-, - as - of"unlaw--

elation which reads fulassow "Unlawful association" means any association which has 3"°""' for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity".

This covers three types of associations, ﬁrst. associations whose very object is the commission of an unlawful activity, secondly. associations which encourage or aid persons, whether members or not, to undertake any unlawful activity, and thirdly, associa- tions whose members undertake such activity, whether or not the object of the association is the commission of such acts. The three classes are not mutually exclusive and there could be over-

lapping.

8.5. Though the provisions of the Act infringe the funda-- C,0ﬂ5ti1U- mental rights guaranteed in sub--c1auses (Li) and (r) of clause (1) :E'""'' '"33' of Article 19, nevertheless they are saved because they are "reason- '0"

able restrictions" within the meaning of clauses (2) and (4) of that Article. They are directly rclatable to the prevention of injury to the sovereignty and integrity of India.

A doubt may, however, be entertained as to whether the wide deﬁnition of "unlawful activity" may unreasonably restrict even the honest expression of opinion by a person for the cession of a portion of Indian territory or giving of support to such an opinion without incitement to violence.' There are, however, two consid- erations which weigh with us in not suggesting any amendment to clarify this doubt. First, the deﬁnition begins with the word 'action'. This requires something more positive than an academic speech. Hence the courts may be persuaded to construe the Act narrowly in the manner suggested by the Attorney--General in his evidence before the Joint Committee'; and secondly, it is unlikely that Government will consider it necessary to launch a prosecution for apurcly academic expression of opinion. The question of a prosecutionitself will, therefore, remain as academic as the opinion.

8.6. In the leading case on the right to form an association, Supromt' the validity of the Madras Amendment of 1950 to the Indian ggiitgrfdfl-1 Criminal Law Amendment Act, 1908 was under challenge. The

1. Section 20').

2. Paragraph 8.2. above.

V'.G. Row's C3813.

Criterion of provision for judicial inquiry.

Defect avoi-

ded in the Unlawful Activities Act.

Supreme Court, after setting out the considerations to be borne 1]] lIlII'1d In examining the reasonableness of restrictions,.observ- ed'----

"Giving due weight to all the considerations indicated above, we have come to the conclusion that section l5(2)(b) cannot be upheld as falling within the limits of authorised re- strictions on the right conferred by article l9(1)(r.'_i. The right to form associations or unions has such wide ar.d varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic ﬁelds, that the vesting 6f authority in the' executive Govern- ment to impose restrictions on such right, without allowing the grounds of such imposition, both i_n their factual and legal aspects, to be duly tested in a judicial inquiry, is a strong ele- ment which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by section 15(2)(h) on the exercise of the fundamental right under article l9(l)(c); for, no summary and what is bound to be a largely one--sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a. judicial enquiry. The formula of subjective satisfaction of the Government or.of its officers, with an Ad- visory Board thrown into review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exception- al circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights." ' 8.7. Thus, the vesting of power in the government to impose restrictions on this right without having the grounds therefore tested in a' judicial inquiry, is an important element to be taken into consideration in judging the reasonableness of the restrict- ions. The existence of a summary, and largely one-sided, review by an Advisory Board could not be an adequate substitute fora judicial inquiry.

8.8. It is obvious that while framing the Unlawful Activities Act", Parliament has tried to avoid the above-defect. The import- ant points of difference between'the 1908 Act (as amended in Madras in i950) and the 1967 Act, are worth pointing out.

(i) The 1908 Act: did not categorically lay down that the notiﬁcation declaring any association unlawful shall not Iiave eﬂecr until the Advisory Board has conﬁrmed the declaration.

The 1967 Act3 provides for conﬁrmation by the Tribunal. except in urgent cases.

1. State ofMadra.r V. V.G. Row, (I952) S.C.R. 597; A.l R. 1952 S.C. 196. A

2. Section l6A(6), I908 Act, as amended in Madras.

3. Section 3(3), 1961 Act.

(ii) In the 1908 Actl, the scope of the reference to the Advisory Board was not deﬁned in a precise manner. In the 1967 Actl, the reference to the tribunal is speciﬁcally for the purpose of adjudicating whether or not there is sufﬁcient cause for declaring the association unlawful.

(iii) The Advisory Board constituted under the 1908 Act was to consider the materials placed before it (and any such fur- ther information as it may deem ﬁt to call for from_ the State Government or the association concerned). Under the 1967 Act,-3 the Tribunal has to call upon the association to show cause and to hold an 'inquiry' in the prescribed manner. (It has power to call for such further information as it considers neccssary)4.

(iv) Under the 1908 Act5, the report of the Advisory Board containing its opinion as to whether or not there was suﬁicient cause for the issue of the notiﬁcation, was to be given separately. Its proceeding and its main report were to be treated as con- lidential. Under the 1967 Act,' the order of the Tribunal is required to 'be publishedin the oﬂicial gazette.

(:2) Under the 1903 Act,' no person was entitled to appear before the Advisory Board, either himself or through a legal representative. In the 1967 Act, there is no such bar. Since the Tribunal holds a regular inquiry", it must necessarily give the parties concerned an opportunity not only to appear before it, but also to argue their case. It may also be mentioned that the rules?' under the Act require the Tribunal to follow the Evidence Act.

It appears to us, therefore, that the constitutional validity of the Act is unassailable.

8.9. We propose that the scope of the Act should be widened to cover any association which has, for its object, a subversive activity, or which encourages or aids persons to undertake such activity. We recommend this change, as it it obvious that such subversive associations constitute as great a danger to national security, as the associations which are at present cover- ed by the 1967 Act under the nondescript designation of "unlaw- ful associations". The penal and prohibitory provisions con- tained in the [967 Act in our opinion are urgently needed in respect of all subversive associations.

Scope of the Act to be widened.

. Section l6A(3), 1908 Act as amended in Madras. . Section 4(1), 1967 Act.

. Sections 4(2) and 4(3), 1967 Act.

. Section 4(3), 1967 Act.

. Section i6A(5), 1908 Act, as amended in Madras. . Section 4(4), l967'Act.

. Section l6A(5), 1903 Act. as amended in Madras. . Section 9, 1967 Act.

'G64:---.IOiLII~h<4J;\;n---

. Ru le' 3, Unlawful Activities (Prevention) Rules, 1968, as amended upto I9'.'0.

Subversive activity.

Section 2A References to laws not in force in Jammu and Kashmir.

Section 3-' basic pro-

vision for applicabili-

ty of penal provisions.

8.10. For this purpose, the expression "subversive activity"

will include not only activities which-are"'t1nlawful activities"

under the Dfnlawful Activities (Prevention) Act (corresponding to what we are recommending to be included in 'disruptive activity'! but also certain other acts designed at subverting the Govern- ment. Brieﬂy, these are--- M an to waging war against the Government of India; preparing to wage war; ~ conspiracies to overawe the Parliament, Govern-

ment etc.; ' (6') preventing by force exercise of State authority in furtherance of inter--State disputes;

(e) . disruptive activity;

(1') forming para-military groups;

(3) treasonahle relations with foreign State or institu- tion or organisation; .-

(iz) sabotage.

3.1]. Section 2A of the Unlawful Activities Act (inserted in 1969) deals with the construction of references to laws not in force in Iarnrnu and Kashmir. It may beincorporated without change.

8.12. Under section 3, if the Central Government is of the opinion that any association is or has become an unlawful associ- ation, it may declare it to be an unlawful. It is only after such declaration that the operative provisions of the Act come into effect. The nal provisions in sections 10, ll, 12 and 13(2). and the pcohibitory provisions in sections 7-8, are so framed as to apply only where the association has been declared to be unlaw- ful. The penal provisions provide the following pe-nalties:----

fr') penalty for being members of an unlawful associ- ation so declared (section 10); [Imprisonment upto 3! years, and line.] (if) penalty for dealing with the funds of an unlawful association in violation of the prohibitory provisions ; (section 1 1); [Imprisonment upto 3 years or ﬁne or both; Also additional fine to recover the amount of the funds etc. used in contravention]

(iii) penalty for use of an article of an unlawful! asso- ciation, in violation of the prohibitonv provisions; [section 12(1)]; [Imprisonment upto 1 year, and ﬁne]

1. Sec plra 7.2. above.

(iv) penalty for entry into a notiﬁed place, i.e. a place notiﬁed as used for an unlawful association, entry into which has been prohibited section 12(2)] ; [Imprisonment upto 1 year, and ﬁine.]

(v) penalty for unlawful activity'; [section 13(1).)

(vi) penalty for assisting the activities of an unlawful association, after it has been declared to be unlawful; [section 13(2).) {Imprisonment upto 5 years or ﬁne, or both.] 8.13. In the penal provision in section I0 of the Act, we recommend the enhancement of the sentence to ﬁve years' imprisonment, as the offence, is fairly serious.

Sections 11 and 12 need no changes of substance.

8.14. Section 13(2) overlapesz, to some extent, section 10. In View of our recornrnendation3 to enhance the sentence for an offence under section 10, section 13(2) may be omitted.

8.15. The saving provision in section 13(3), is not intended to apply to associations but only to the activities of individuals. Hence it need not be included in this Chapter.

8.16. The prohibitory provisions in sections 7-8 do not require any change.

8.17. The notiﬁtion by the Central Government declaring an association to be unlawful, has to be conﬁrmed by the Tribunal. Sections 4 to 6 and section Qcontain detailed provisions in that respect. including provisions as to the composition and procedure of the Tribunal.

8.18. Section 4 deals with references to the Tribunal to be appointed for the purposes of the Act. The Tribunal is to be constituted under the Act, for approving or disapproving the orders of the Central Government declaring an association to be unlawful.

8.19. No changes of substance are needed in sections 5 to 9 which deal with the Tribunal, the period of operation of the Noti- ﬁcation and with powers of the Central Government to prohibit the use of funds of an unlawful association, and to notify places used for the purpose of an unlawful association, and with the power of the District Magistrate to prepare a list of properties of an unlawful association and ancillary matters.

8.20. Section 14 of the Act declares certain offences under the Act to be cognizable. The matter can be left to be dealt with by the general provision in the Criminal Procedure Code'. As the Sections 10, l1 and 12.

Section I 3(2) to be omitted.

Section 13(3).

Sections 7 and 8.

Sections 4 to 6 and 9- Proceed-

ings before the Tribun- al or Dis-

trict Judge.

Sections 5 to 9.

Section 14 to be omitted.

1. This offence can be committed by individual. It has been covere d by the provisions relatiu g to 'disruptive activity'.

2. Section 13(1) has been already dealt with in para 7.2. and 7.3. above,

3. See para 8.13. above.

4. Criminal Procedure Code Bill 1970. First Schedule.

Sections 35 and in.

Section 17.

Sections 18 to 21.

Oﬁences to be includ-

ed this group.

punishment under section 10 is proposed to be increased', section l4_is unnecessary and should be omitted.

8.21. Section 15 of the Act deals with the meaning of 'con- tinuance of an association' and needs no change.

Section 16 of the Act deals with bar of jurisdiction of court, and needs no change.

8.22. We have already recommended the insertion of a gene- ral provision regarding sanctionz of prosecutions under the pro- posed Act, and hence section 17 of the Unlawful Activities Act is unnecessary.

8.23. Sections 18, 19, 20 and 21 of the Unlawful Activities Act may be incorporated in the proposed Act without substantial modiﬁcations.

8.24. As a result, the following offences will be included in this group-.:----

(I) Being member of a subversive association3. (2) Dealing with funds of a subversive associt1tion4.

(3) Conttavention of an order made in respect of a notiﬁed place5.

l. Para 8.13. above.

2. See chapter 7 above.

3. Para 8.12(i) above.

4. Para 8.12 (ii) above.

5. Para 8.12 (iii) and (iv) and 8.16. above.

CHAPTER9 THE CRIMINAL LAW AMENDMENT ACT, 1961 9.1. The Criminal Law Amendment Act. l96l. contains a few provisions relevant to national security. The object of the Act was thus described in the Statement of Objects and Reasons appended to the Bill1:-----

"Certain recent developments in the regions adjoining the borders of India and in other parts of the country likely to jeopardise the security of the country and its frontiers point to the necessity of placing curbs on such activities. The Criminal Law Amendment Bill, 1960, accordingly seeks to provide for punishment to persons who may question the territorial integrity or frontiers of India in a manner prejudi- cial to the safety and security of the country, and for other cognate matters."

The Act has not been frequently usetlwat least. there is a paucity of reported decisions on the Act?-.

9.2. Under section 2 of the Act, a person who questions the territorial integrity or frontiers of India in a manner which is, or is likely to be, prejudicial to the interests of the safety or secu- rity of India, is punishable with imprisonment upto 3 years, or ﬁne or both. It appears to us that section 2 is practically covered by the Unlawful Activities (Prevention) Act, 'I967. The com- bined effect of section 2(f) and section 13(1) of the Act of 1967 is to punish "any action, whether by cornrnitting an act or by words either spoken or written or by signs or by visible represen- tation or otherwise, which is intended or supports any claim to bring about.... .cession .... ..or secession.....or which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity "of India". The 1967 Act, unlike section 2 of the 1961 Act, does not mention 'frontiers' expressly. But a serious challenge to frontiers (barring, perhaps, an academic discussion) cannot escape the all-embracing clause "questions the sovereignty", occurring in section 2(f) of the 1967 Act.

Moreover, the maximum punishment under section 13 of the 1967 Act is imprisonment upto ﬁve years, while the Act of 1961 punishes the act with imprisonment upto 3 years, even though the latter Act is more stringent, as it requires that the act be done in a manner prejudicial to the interests of the safety or security of India.

Introduct-

ory.

Section"2 covered by the Act of l9ﬁ7~--Re-

pea] recom-

mended.

1. Gazette of India, ([950) Extraordinary, Part II, section 2, page 938.

2. See para 9.4. below.

34 M of Law----6 Section 3.

Delhi case.

Sections 4 & 5.

Sections 3 to 5 not suitable for inclusion in the new law.

We, therefore, recommend that section 2 should be repealed'.

9.3. Under section 3, statements etc. in a 'notiﬁed area' pre- judicial to the maintenance of public order therein or to the safety or security of India or to the maintenance of essential supplies, are punished, and the entry of persons in such area is also regulated. The basic provision is in section 3(l). which gives power to the Central Government. to declare an area adjoining the frontiers of India to be a notified area, where the Central Govern- ment considcrs that in the interests of the safety or security of India or in the public interest, it is necessary or expedient to do so.

9.4. The only reported case? under the Act is that o?" the Delhi High Court. The petitioner in that case had been granted a permit to enter an area notiﬁed under the Act and to remain in it, for a specified period. Before the expiry of the period, how- ever, the permit was cancelled arbitrarily and in violai ion of the rules of natural justice. The order of cancellation was. For that reason, quashed by the High Court.

9.5. The State Government has. under section 4. power to declare certain publications to be forfeited, being publications which appear to the State Government to contain any matter the publication of which is punishable under section 2 or section 3(2). There is also a power to issue search warrants.

9.6. it appears to us that sections 3 to 5 of the Act are not appropriate for inclusion in the proposed consolidated law on national security. These provisions are of it special character, and applicable only in relation to notified areas. Moreover, the provisions are not confined to national security. The order under section 3(1) can. for example, be passed not only in the interests of the safety or security of India. but also in "the public interest". Again, under section 3(2). :1 statement prejudicial to the maintenance of essential supplies can also be punished. Such provisions would not ﬁt in with a law primarily designed at the protection of national security. We do not. therefore. con- sider it necessary to include these provisions (sections 3 to 5) in the new law.

1. Consequential changes will be required in scctionﬂd which refers to secti-t;-iﬂ.'!.

2. Abrlnl Burr V. Gav.-.-rmnent of f1'r'.vrza('haI Prarlai-h. .A.I.R. 1968 Delhi 49, 5:4 {Hardy J .

CHAPTER 10 PRoC|_<I)uiu;, L1MtTA'i'im; Avo i\'il.'SCELLA.?u'i-OUS l0.l. Having discussed the substantive provisions relating to offences against the national security, we now discuss the pro- cedural and ancillary provisions.

l0.2. Procedural provisions may be diviclctl i.nto three groups:

First, there are new provisions i.e. provisions not found in any of the existing enactments. Secondly, there are provisions already contained in one or more of the respective laws, which appear to be appropriate for being applied to all offences against the national security. In the third group are provisions con- tained in existing laws, whose application may be conﬁned (as at present) to offences under those laws. These need not be dis- cussed here again, as they have been dealt with under the relevant Chapters.

10.3. The subject of limitation comes, in the ﬁrst group. We 'have. in our Report' on the Penal Code, recommended the introduction of the law of limitation for prosecution for offences punishable with not more than three years' imprisonment. The amendment recommended therein will not cover most of the offences under the proposed Act because these are punishable more severely.

10.4. In England, an indictment for high treason within the realm (with the exception of treason by designing, endeavouring or attempting any assassination on the body of the Q_ueen by poison or otherwise) must be signed within three years after the offeitce is committedz.

An "inl'ormation" for Blasphemy by words spoken must be tiled within Four clays of the speaking. and the prosecution must be within three months of the information-'.

A prosecution for an offence under the Unlawful Drilling Act. 1819, must be commenced' within six calendar months after the otfence committe-:15.

Introduct-

r.-r_v.

Three kinds of procedural provisions relating to offences against the national security.

Limitation for offences.

Limitation as to trea-

son in England Statute of' I695

1. 42 Report, Chapter 24.

2. Treason Act, 1695 (7 & 8 Will, 3, c.3) section 5 and 6.

3. Section 2, Blasphemy Act, 1697.

4. Section 7, Unlawful Frilling Act, 1819.

5. The discussion is illustrative only. Provisions as to the time-limits for prosecutions are contained in several other Statutes.

Transitory nature of some offences against national security.

Recom-

mendation regarding lime-limits for pro-

secutions for certain elfcnces.

No particular explanation is given by Stephen' as to the reason for passing the 1695 Act, which introduced the provisions relating to limitation for treason; he makes just a brief reference to it. Maitland. in his Constitutional Historyl. refers to this Act, and points out how the Act made a number o|' exceptions from the general law in favour of persons accused of treason. But he does not deal with the historical reason for the particular provision relating to limitation.

But the background of the 1695 Act in general can be gathered from what Kenny states in his Criminal Law3:# "As treason was, of all crimes, that in which the Crown had the strongest direct interest in securing the conviction of an accused person, it was the one in which a public prosecutor or a subservient judge had most temptation to conduct the trial so as to press harshly upon the prisoner. The reigns of the Stuarts alforded so many instances of this harshness that after the Revolution of 1688, the legislature in 1695 introduced great innovations into the course of criminal pro- cedure so far as trials for treason were concerned."

Though British jurisprudence does not recognise the appli- cability of the law of limitation to crimes in general, nevertheless, its special application to the crime of treason was presumably made with a View to preventing political victimisation.

10.5. Some of the offences relating to national security are transitory in nature, and should be subject to limitation even though the punishment may be more than three years' imprison- ment. A traitor or arch seditionist of today may be the head of the Government some years later and may even be considered a great patriot. If there is a subsequent change in Government (due to change in ideology or otherwise), there should be no apprehension of political victimisation of such person for a crime committed several years before. Hence we consider that there should be a law oﬁ limitation for some of the offences under the proposed Act especially those of mere speeches and writings. For very serious offences such as waging war or serious acts of sabotage, the law of limitation should not be applicable.

10.6. Acting on this principle, we think that there ought to be a time-limit for a prosecution for the following oﬁ'enees:--

(1) Incitement to mutiny or other act of insubordinaa tion.[1'vIaximum period of imprlsonment--3 years).

(2) Dissuasion from enlisting and instigation to mutiny or insubordination after enlistment.

(Maximum period of imprisonrnent--3 years).

1. Stephen, History of Criminal law, Vol. 1. pages 415-416 and Vol. 2, page.

2. Maitland, Constitutional History, (1946), page 314.

3. Kenny, Criminal Law, (1966), page 403.

Ac 81 (3) Disruptive activity.

(Maximum period of imprisonriient--7 years).

(4) Sedition. __ (Maximum period of imprisonment----? years). -* (5) Contravcntion of an order made in respect of a notiﬁed place. ' (Maximum period of imprisonment--1 year').

A time-limit of one year should sutlice in all these cases. In other respects, such as computation of the time-limit and the like, the detailed provisions recommended in our Report on the Penal Code' should apply.

l0.?. The new provision will be as follows:---- l'w~i>'i0rI ' IECOITIITP "l_'l) 'No court shall take cognizance of an oﬁerice puni- ended. shable under sections 24, 25, 28, 39 or 55 after the expiry of one year.

(2).The provisions of sections 513 to 516 of the Indian Penal Code3 shall apply for the purpose of computing the said period of limitation under sub--section (1) as they apply for the purpose of computing the period of limitation for taking cognizance of an offence under that Code."

1- 10.8. The following procedural provisions belong to the second Frocgdurnl group referred to above' and are to be applicable to all offences 13I0|'viSi0TI5 _ - -_ app icablc:

tinder the new law. mg"

(i) the provision' requiring sanction5 of the Goverri- °"e"°"5-

merit, for a prosecution for an offence;

(ii) the provision' relating to place of trial; and

(iii) the provision? relating to offences by companies.

The gist' of these provisions has been already dealt Winn. §§'°.;;i";§'2,'_,;;"

_ _ _ _ _ _ nizahlliy 10.9. One point regarding cogiiizability of certain offences qt' Ccrlaiii and the courts competent to try them requires to be mentioned. 'f"'*"°°3_ and Oﬁences under chapters 6 and 7 of the Penal Code are to be trans- "OMS mm"

. . . . . . t ierrcd to the new law. Now, the position as regards bailability,

1. 'End Report, Chapter 24. 1'

2. The reFercnce is to sections 513-516, as recommendc _ . ' _ I d in the 42nd Report. which contain detailed rules as to starting point, excluding the ﬁrst day, containing offences, etc.

3. Para £02. above.

4. Section t3(3), Official Secrets Act, as proposed to be revised.

' 5. It is proposed now to substitute sanction in place of the present rcquircmcrir nf complaint.

6. Section 13(4), Dﬂicial Secrets Act.

7. Section I5, Oﬁicial Secrets Act.

8. Chapter 7, discussion relating to section 13(3), 13(4) and section 15, omcial S[_-cf-E-[>5 I. €3\i:lO¢~J;~Ln:hm§~J*-

\-.._ 82 cognizabiiity and courts competent to try them is, at present. governed by speciﬁc items in Schedule [I to the Code' of Criminal Procedure, 1398. On the transfer of those offences to the new law, those specific items will cease to apply, and the provision in the said schedule relating to olfenccs against other laws will become applicable. Where the position so resulting would be diﬁerent from the present one, it will obviously be necessary to consider if a speciﬁc provision is required for maintaining the present position. We deal below with this matter.

(1) .4s.rauh'r'ng the President etc. wr'2'}r intent to compel or restrain the exercise ofanyJaufulpou-'ers3.---This oﬁence (punish- rnent--imprisonment for 7 years, and fine) is under the speciﬁc entry in the Schedule to the Cr.P.C.3. Session'. Under the part of the Schedule applicable to offences under other laws, the offence would be trial:-le by a Magistrate of the First Class. We are of the view that this change may stand. Though the offence involves high dignitaries, it can cover a variety of acts, and there is no harm if it is lriable by a Maigistratc of the First Class. Serious cases can be committed to the Court of Session. Hence no special provision is required.

(2) Public servam' neg1'1'gem'l'y ¢z.'i'owr'ng prisoner of war to esc'ape5.~--This olience ('punishmentuimprisonrnent for 3 years, and line] is, under the speciﬁc provision in the Schedule, non» Cognizable." it would now become cognizable. We are of the view that the offence should be cognizable. Hence no special provision need he recommended.

(3) 5ea'i'n'on'~'. This offence (proposed punishment----impri- sonment for seven years, and ﬁne) is. under the Schedule, non- cognizable. non-bailable and triable exclusively by the Court of Session'. It would now become cognizable. non-baiiable and triable by a Magistrate of the first class which, in our opinion would not be desirable. Hence it will be necessary to provide that the ollence is non--cogniz|a|3le and triable by the Court of Session.

(4) Committing depreciation on I-e'rri"iort'e.r of foreign at peace wt'!!! InrFr'a9'.

State (5) Receiving property taken by means of Stroll waging war or deprec:'au'on1".---These two offences (punishment for each----

. First Schedule to the Cr. P.C. Bill, l9'i'lJ.

Section 124. I-P.C.; section 8, National Security Bill, 1971.

. The reference throughout is to the First Schedule to the Cr. RC. Bill, 1970.

Appendix 3 to the 42nd Report does not alter this position.

. Section 129. l.P.C.; section I3. National Security Bill, 197].

Appendix 3 to the 42nd Report has not altered this position.

. Section 124A. l.P.C'.: section 39 ofthe Nationzt! Security Bill. 1971. . Appendix 3 to the 42 ml Report has not altered this position. . Section 126, l.F'.C.; section i5. National Security Bill. ]9'.'l. . Section I27. I.P.C.; section 16, National Security Bill, 197:.

triable by the Court of 83 imprisonment for 7 years and ﬁne, and forfeiture of ocrtain pr0-- perty) are, under the Schedule, triable by at Court of Session'. They will now become triable by a Magistrate of tlie First Class. To avold that result, it will be necessary to provide they are tri-i able by the Court of Session.

(6) Abermenr of de.s*ertim:.--Tl1e_re are two situations:

' (ct) Abetmem' of'a'esem'on_f'rom armed' 'forces. if the descr- tion be canzmirtedzr---This offence (punisl1ment--irnprison~ ment for 5 years, and fine. or both) is, as proposed', cogni- znblc, non-bailable and triable by a Magistrate of the First Class. This position remains unaltered, and no special provision will be required for this oﬁence. But, 3. special provision is needed for situation ((2) below.

(bl Abetmerzr of deseriiorr fitom armed forces in other cases'.-~--This olfcitce (punisliimntAimprisonment for 2 years or fine, or both) is, under the Schedule cognizab]-:. It will now become nomcognizable. It is. therefore, neces- sary to provide that it is cognizable.

(7) Hm-boitring a deserreﬂ.---This oifeiice (punishment---

imprisonment For 2 years, or ﬁne, or bothlis, under the Schedule cognizable'. It would now become non-cognizable. [t is, therefore, necessary to provide that the oﬁcncc is cograizable, (8) Abe-tmerzz of an Hr?! of insuhordinarioni.

(a) if such act be committed;

(52) in any other casc.---This offence [punishment for situation under (r.-}-----imprisonment for two years, or ﬁne. or both and for situation l._lt'tdC!' (b}~--imp-risonment for 6 months. or ﬁne, or both) is, under the Schedule, cognizableli. [1 would now become non-cognizable. Hence. it would be necessary to provide that it is cognizahlc.

(9) Wearing garb or carrying taker: used by orficers or member czfzlze armed_farces*:--This oi'Ecnce(pumshment1"---imprisonm¢n:

l. Appendix? to the 42nd Report has not altered this position.

2. Section l35(a)(r1cw't. as proposed by the 42nd Report, section Zlta}, Nagiggat 33.

curity Bill, 1971. ' 3, Scticcliile to the Cr. 'P.C'.. as amended by 42nd Report. Appendix 3.

4. Section I45, LP.C.; section 21th), National Security Hill, 197i_ 5' Section 135, l.P.C.: section 22. National Security Bill. I97].

6. Appendix 3 to the 42nd Report has not altered this position.

. Section I33, l.P.C.: section 137-'{a') and (b) as propo"-3-d in the 42 1 R t ' 23(3) and (b), National Security Bill. mi. ° "' E9" ' "'°"°"

S. A.-pnen-clix3 to the 42nd Report has not altered this :3 s'tion. S t' '"

and (b). of the Schedule appended thereto. 0 L if "C mu "Kai

9. Section I40, l.P.C' ; section 27, National Security Bill. F971,.

16, As proposed in the 42nd Report.

for 6 months, or ﬁne or both) is, under the Schedule, cognizable'. It would now become non-cognizable. Hence, :.t is necessary to provide that it is cognizable.

We accordingly recommend a special provision as follows:---

"Notwithstanding anything contained in the Code of Criminal Procedure, l97l,--

(a) offences under sections 21, 22, 23 and 27 shall be cognizable;

(b) the offence under section 39 shall be non-

eognizable; and

Repeal i0.l0. Consequential on the incorporation of the provisions of various statutes, as proposed in this Report, repeal of those statutes is recommended.

Provisions l0.ll. As a result. the following provisions of a procedural ilflbiled or miscellaneous character will be mc1uded:--

C L] .

(I) Cognizance of oifencesz. (requirement: of sanction). (2) Bar to taking cognizance after lapse of time3.

(3) Place of inquiry or trial4.

(4) Offences by companies5.

(5) Cognizability of offences and courts competent to try them'.

(6) Repeal and savings7.

Appt:ndiC- , 10.12. We annex to this Report, two Appendices-. one showing C' our recommendations in the form of a draft Bill, and the other showing the consequential amendments needed in various Cen- tral Acts as a result of the recommendations incorporated in the draft Bill. .

l. K. V. K. SUNDARAM*Chaa'rman.

2. S. S. DULAT, '

4. R. L. NARASIMI-IAM,*

5. D. B. KULKARNI P. M. BAKSHI----Secretary New DELHI;

The 30th August, 1971.

. Appendix 3 to the 42nd Report has not altered this position. . Para 10.36}, above.

. Para 10.7. above.

. Para l0.S(ii). above.

. Para l().8(iii), above. ' . Para 10.9. above.

. Para l0.t0. above.

Shri R.L. Narasimham has signed the Report, subject to the note appended.

3. Mrs. ANNA CHANDI, :} Members' J *'-30\U|-lhu.It-J'-

NOTE BY SHRI R. L. NARASIMHAM As I have been unable to persuade my colleagues to accept some of my suggestions for inclusion in the proposed National Security Bill, 1971, I am constrained to give my separate Note. These suggestions are based mainly on the provisions found in some of the foreign Penal Codes relating to treason. It appears to me that they will be suitable for Indian conditions also, and hence may be included in our proposed law.

I. REPENTAN-CE Under our existing law, the only inducement for an accom- plice tobetray his colleagues is the tender of pardon under section 33? and the succeeding sections of the Criminal Procedure Corie. But this pardon cannot be claimed as of right;and it is within the discretion of the appropriate court [See sub-section (1) of section 337] to tender pardon to an accomplice who is ready and willing to betray his colleagues by making a full dis- closure. Though the section has been very usefully employed in a few instances, nevertheless, it cannot be said to be a sufficient inducement- On the other hand, if the law itself confers absolute immunity from punishment on a person who discloses the com- mission ofthe crime (subject to certain conditions and restrictions), it may be a greater inducement for accomplices to betray their colleagues even in the earlier stages of the commission of the crime (such as the preparatory stage or the stage of attempt), and thereby either prevent the completion of the crime altogether, or facilitate the detection, of arch-criminals. Conspiracy to commit the crime of treason is generally hatched in great secrecy, and a study of the history of treason trials all over the world shows that such offences are detected mainly on the basis of' the evidence of the accomplice. This is an additional reason why, for otlences involving national security, a special provision giving complete immunity from either prosecution or punishment, as the case may be, is highly desirable. I would not reonimend

-such a provision for all the oﬁences under the Penal Code.

It will be useful to compare the provisions Found in some of the foreign Codes: -

Argenttnn=--Articles 216 and 217--The person who takes part in a plot of two or more persons to commit treason and discloses the plot before execution of the crime is commenced, is punished by imprisonment or jailing -from E to 8 years. (Article 2l6}. But the plotter who reveals the plot to any autho- rity before the criminal process has been started, is exempt from any punishment (article 2l'l).

(:'ermarr_ pf .«~--( Draft Penal Code), section 368- (1) The court may mitigate, under section 64, paragraph 1, the pnnishrnent provided in sections 35l, 362, 364, paragraph 1, and section 365, if' the perpetrator voluntarily abandons the

1. Section 32, German Penal Corie, 187], is simpler.

further carrying out of the act. and avcrts or materially lessens any danger that might exist that others will further carry out the activity, or if he voluntarily prevents completion of the act.

(2,) The court may mitigate in its discretion (5. 64. paragraph 2) _ the punishment provided in s. 363 and s/ 364, paragraph 2. or refrain from punishment, if the perpetrator voluntarily aban- dons his design, and averts or materially lessens any danger that may have been caused by him that others will f urlher prepare or carry out the activity or if he voluntarily prevents completion of the act.

(3) The court may mitigate in its discretion is. 64. paragraph 2) the punishment provided in s. 366 or refrain from punishment. if the perpetrator voluntarily abandons his activity and averts or materially lessens any danger that may have been caused by him that others will further pursue the treasonable efforts their- in stated. The foregoing shall apply correspondingly to acts punishable under section 367. ' Japan.»---Article 80--The punishment of a person who after committing the crimes mentioned in the two preceding articles denounces himself before the disorder is created, shall be remitted.

I would, therefore. suggest the insertion of a new provision in the last chapter of the proposed Bill, conferring Complete

-imniunity either from prosecution (where a prosecution has not yet been initiated) or from punishment (if the trial has already commenced), to the person who has committed an offence under the National Security Act, if he will make a full and true dis- ciosure of the whole of the circumstances within his knowledge relating to the olfencc and to every other person concerned whether as principal or abettor in the commission of" the same, either before the authority empowered to investigate the com- mission of the offence or before the court empowered to take cognizance of the offence or the court before which he is under- going trial.

II. DISLOYALTY t.\' NLGOTIATIONS 1 notice that in many foreign countries there is a special provision in the law of treason for penalising disloyalty in nego- tiations.

Argentina.--Article 2251---Anybody being in cltarge of a negotiation with a foreign nation on behalf of the Argentinian Government, who conducts such negotiation in a way prejudi- cial to the nation by deviating from any instructions given to him shall be punished by imprisonment or jailing from three to ten years.

Co!ombr'a.~Articie l20~Anyone entrusted by Colombia to negotiate matters of State with a foreign Government or with persons or groups of another country, who behaves disloyally in the exercise of his agency shall suffer penal servitude for ﬁve or ﬁfteen years.

.Dermmrk,-----Article 106-Any person who acts against the interests of the State in carrying out a mission entrusted to him to negotiate or settle on behalf of the State any matter with any foreign power shall be liable to imprisonment for a term not exceeding 16 years.

Draft Penrn' Code of G:J.rm.:m_v.~Article 392(l).--Danger in the conduct of State matters---A representative of the Federal Republic of Germany or of one of her States who deliberately or knowingly conducts a matter of State with a Foreign Govern- ment or a supra national or international institution to I:he detriment of his principal, shall be punished with conﬁnement in a penitentiary upto ﬁfteen years.

,S'wr=den.--Chapter I9, section 3 --lfa person. who has received a commission to negotiate with a foreign power or otherwise to protect the concerns of the Realm. in being with some one who represents the interests of a foreign power misuses his authority to represent the Realm or otherwise his position or trust and thereby causes the Realm considerable harm, he shall be sentenced for disloyalty in negotiation with a foreign power to imprison- ment for a fixed term of at least two and at most ten years. or for life.

Some acts of disloyalty may possibly come under the wide sweep of some of the provisions of the Ofiicial Secrets Act, 1923. But. as we are recommending the repeal of that Act and the inclusion of its -provisions in the proposed National Security Act. it seems desirable to take this opportunity of' inserting a new provision penaiising disloyalty in negotiation.

III. DUTY TO PREVENT THE COMMISSION or THE CRIME Under our penal law there are some provisions casting a duty on a person to give information in his possession to the proper authorities regarding the commission of or intention to commit some offences. (See section 44 of' the Cr. P. C. and clauses 39 and 42 of the Bill}. But there is no provision casting a positive duty on a person to prevent the further progress in the commission of any treasonable activity. if he could prevent the same without danger to himself. In a few instances, such as sabotage. espionage. etc. the mere giving of information to the appropriate authorities may not suffice.

The Austrian Penal Code, section 60. contains the following interesting provision: "He who intentionally fails to prevent. the further progress of an undertaking which is included in the deﬁnition of high treason. although he could have done so easily and without danger to himself, his relatives or to those persons who are by law under his protection. becomes an acces- sory to the felony and shall be punished by severe imprisonment of from live to ten years."

It may be useful to have a similar provision in the proposed Bill also. It is true that occasions for prosecution of a person for contravention of that provision may be very rare indeed. But if a person without danger to himself or his near relatives can prevent the commission of an offence and yet fails to prevent the same, there is no reason why he should not be held punishable under the law for an oﬂ'ence involving national security. To cite an extreme case, suppose an expert on explosives notices that a time bomb has been laid by some unknown culprits to blow up an installation which is vital to national security. At present the only duty cast on him by law is to report the matter to the authorities. There is no duty on him to remove or defuse the bomb or otherwise render it harmless, though he could easily have done so without danger to himself in view of his expert knowledge. The consequences may be very serious. But by the time the authorities, on receiving the information, rush to the spot, the installation may be blown up. There is no reason why the law should not punish that citizen for his grievous sin of omission. Instances of this type can be given for the offence of espionage also.

[ notice that in the French Penal Code (Article 62) and in the Draft German Penal Code (Article 233) there are provisions making it penal if a person omits to prevent the commission of some offences if such prevention could be done without danger to himself. I am not, however, in favour of extending this rule for all classes of offences under the Penal Code. It will be suffi- cient if this rigorous rule is applied for offences involving national security alone.

R. L. NAFASIM HAM APPENDIX 1 THE NATIONAL SECURITY BILL, 1971 CONTENTS CHAPTER 1 PREIJMINARY Cmusrs [J CNU1-FLMJ 10 I1 12 13 14 15 Short title, extent and application. Deﬁnitions.

CHAPTER 2 INSURRECTION Waging war against the Government of India. Preparing to wage War.

Conceaiing design to wage war.

Conspiracy to overawe the Parliament or Government of India or the Legislature or Government of any State.

Preventing by force exercise of State authority in furtherance of inter- State disputes.

Assanlting President etc. with intent to compel or restrain the exercise of any lawful powers.

CHAPTER 3 Assrsrrno "ran ENEMY Assisting India's enemies.

Inﬁltration for committing offence against national security. Aiding escape of, rescuing or harbouring, prisoner of war. Public servant voluntarily allowing prisoner of war to escape. Public servant negligently suffering prisoner of war to escape.

CHAPTER 4 RELATIONS WITH FOREIGN STATES Waging war against any foreign State at peace with India.

Committing depredation on territories of foreign State at peace with India.

89 90

CLAUSES l6 I7 [8 19 20 21 22 23 24 25 26 .27 43 Receiving property taken by means of such waging war or depredation. Recruitment to, or enlistment in, armed forces of foreign Eitates.

CHAPTER 5 OFFENCES RELATING TO THE Arman FORCE-S' O Abetment of mutiny.

Attempting to seduce officer or member from duty. Abetment of assault on superior ofﬁcer.

Abetment of desertion from armed forces.

Harbouring deserter.

Abetment of an act of insubordination.

incitement to mutiny or other act of insubordination.

Dissuasion from enlisting and instigation to mutiny or insut-ordination after enlistment.

Persons subject to certain laws, not to be punished under the Chapter.

Wearing garb or carrying token used by officer or member of the armed forces.

CHAPTER 6 SUBVERSWIE Acrivmss ' Disruptive activity.

Para-military groups.

Treasonablc relations with foreign State or institution or organisation. Trcasonable deception.

Sabotage.

Spying.

Divulging ofﬁcial secrets.

Using false official uniforms, documents and seals for purpose pre- judicial to national security.

interfering with the police or armed forces on duty at a prohibited place.

Failure to give information.

Penalty for harbouring sabotcurs or spies.

Sedition.

Search warrants.

Exclusion of public from certain proceedings. Evidence of purpose prejudicial to national security. Presumptions in prosecutions for spying.

56 57 58 59

-60 6] 62 63 64 65 9] CHAPTER 7 Suevisnstvig ASSOClATl0r\'S Cr.A1Jsr:s Deﬁnitions.

Declaration of an association as subversive association.

Reference to Tribunal.

Tribunal.

Period of operation and cancellation of notiﬁcation.

Power to prohibit the use of funds of a subversive assoeation.

Power to notify places used for the purpose ofa subversive association.

Procedure to be Followed in the disposal of applications under this Chapter.

Penalty for being member of a subversive association.

Penalty for dealing with funds of a subversive association.

Penalty for contravention ofan order made in respect ofa notiﬁed place. Continuance of association.

Bar ofjurisdicti0n_ Protection of action taken in good faith.

Power to delegate.

Power to make rules.

CHAPTER 8 M lSCl;'L1..ANl:'0US Cognizance of offences.

Bar to taking cognizance after lapse of time. Place of inquiry or trial.

Provision as to certain oifetrces regarding eognizubility and competent court.

Olfences by companies.

Repeals and savings.

THE NATIONAL SECURITY BILL, 1971 A BILL to consolidate and amend the law refuting to oﬂ'ence.r against the national security CHAPTER 1 _ PRELIMINARY ﬁitlgt 1. (1) This Act may be called the National Security Act, exteiat and 1971' ','i',?__'[°,1_i°a' (2) It extends to the whole of India. (3) It applies also outside India-- (tr) to citizens of India;

(b) to aliens on any ship or aircraft registered in India:

and (C) to aliens in the service of the Ciovernniciit-

13~'l'milI0I15- 2. In this Act, unless the context otherwise rc:qnires,----

(a) "armed forces" means the military, naval and air forces, and includes any other armed forces of the Union;

(b) "foreign agent" means any person who is, or has been, or in respect of whom it appears that there are reasonable grounds for suspecting him of being, or having been, employed by a foreign State, either directly or indirectly, for the purpose of committing an act, either within or without India, prejudi- cial to the national security, or who has, or is reasonably suspected of having, either within or without India, committed. or attempted to commit such an act in the interests of a foreign State;

(0!) ''model'' includes design, pattern and specimen;

(e) "minitions of war" includes the whole or any part of any aircraft, ship, submarine, tank or similar engine, arms, ammunition, torpedo, missile or mine intended or adapted for use in war, and any other article, material or device, whether actual or proposed, intended for such use;

92 93

(f) "ofﬁcer", in relation to the armed forces, means a person commissioned, gazetted or in pay as an otiioer of the armed forces. and includes a junior commissioned officer, a petty olﬁcer and a non--cc-mmissiorted oﬁicer;

lg) "photograph" includes an undeveloped film or plate;

Ur) "prejudicial to the national securit_v" means pre- jutlicittl to the sovereignty and irttergrity of India, or to the safety or security of' India or any part thereof. or to india's friendly relations with foreign States;

(I) "prohibited place" _rneans.--~

(i) any armed force establishment. station or camp'.

(ii) any work of defence. wireless or signal station. telegraph or telephone installation, arsenal, mineﬁeld, ship or aircraft under the control of any of the armed forces;

(iii) any factory, docliyard or other place belong- ing to, or occupied by or on behalf of, Government, and used for the purpose of making, repairing or storing any munitions of war or any sketches, models or documents relating thereto. or for the purpose of getting any metals, oil or minerals of use in time of war;

(iv) any place not belonging to Government where any munitions of war or any sketches, models or -do- cuments relating thereto are being made. repaired or stored under contract with, or otherwise on behalf of, Government;

(it) any other place which is for the time being declared by the Central Government by notiﬁcation in the Oﬂicial Gazette to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or the destruction or obstruc- tion thereof, or interference therewith, would be useful to an enemy, and at which 3 copy of such notiﬁcation is displayed for public information:

if) "sl<.etch"' includes any plan, photograph or other mode of representing any place or thing;

tk) words and expressions used but not defined in this Act and deﬁned in the Indian Penal Code have the meanings respectively assigned to them in that Code;

(I) any reference to a law which is not in force in the State of Jammu and Kashmir shall. in relation to that State, be construed as a reference to, the corresponding law in force in that State.

34M of I_aw_-"i'l----'J' Waging war against the Govern-

ment of India.

Preparing to wage war.

Concenling to wage war.

Conspiracy to overawe the Parliament or Govern-

ment of India or the Legislature or Govern-

ment of any State.

Preventing by force exercise of State authority in further-

ance or inter-

State dis-

putes.

Assaulting President etc. with intent to compel or restrain the exercise of any lawful powers.

CHAPTER 2 INSURRECTION

3. Whoever wages war against the Government. of India, or attempts to wage such war, or abets the waging of such war. shall be punishable with death or imprisonment for |.i=lTe. and shall also be liable to line.

CHAPTER 7 SUBVERSIVE ASSQCIATIONS

4. Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India. shall be punishable with imprisonment for life or rigorous imprisonment for a term not exceeding ten years, and shall also be liable to ﬁne.

5. Whoever, by any act or illegal omission, conceals the existence of a design to wage war against the Government of India, intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punishable with rigorous imprisonment for a term which may extend to ten years, and slrall also be liable to ﬁne.

6. Whoever, conspires to overawe. by means of forccor show of force, the Parliament or Government of indie or the Legislature or Government of any State, shall be punishable with imprisonment for life or with rigorous imprsonment for a term which may extend to ten years, and shall also be liable to ﬁne.

Exp1anan'on.---To constitute a conspiracy under this section. it is not necessary that any act or illegal ommission shall take place in pursuance thereof.

7. Whoever, by means of force or show of force, prevents or attempts to prevent any State from exercising its authority in any part of that State. with a View to securing an alteration of the boundaries of that State, or in furtherance of a dispute between that State and another State or the Union, shall be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to a ﬁne.

8. (1) Whoever, with the intention of inducing or compel- ling any oﬁice--l1olcler or to whom this section applies. to exer- cise or refrain from exercising in any manner any of his lawful powers, assaults, or wrongfully restrains, or overawes by means of force or show of force, such office-holders, shall be punish- able with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to ﬁne.

(2) The oﬂice-holders to whom this section applies arepw

(i) the President of India;

(ii) the Vice-President of India;

(iii) the Chief Justice of India;

(iv) the Speaker of the House of the Peoples;

(v) the Governor of any State;

(vi) the Chief Justice of any High Court;

(vii) the Speaker of the Legislative Assembly State; and

(viii) the Chairman of the Legislative Council State.

of any of any CHAPTER 3 ASSISTING THE ENEMY

9. Whoever, assists in any manner an enemy at war with India, or the armed forces of any country against whom the armed forces of India are engaged in hostilities, whether or not a state of war exists between that country and India, shall be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to ﬁne.

10. Whoever, unlawfully enters into, or remains in, India for the purpose of committing an offence under this Act shall. be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to ﬁne.

11. Whoever, knowingly aids or assists any prisoner of war in escaping from lawful custody, or rescues or attempts '20 rescue any such prisoner, or harbours or conceals any such prisoner who has escaped from lawful custody, or offers or attempts to offer any resistance to the recapture of such prisoner, shall be punishable with rigorous and shall imprisonment for a term which may extend to ten years, also be liable to ﬁne.

12. Whoever, being a public servant and having the custody of any prisoner of war, voluntarily allows such prisoner to escape from any place in which such prisoner is conﬁned, shall be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to ﬁne. M

13. Whoever, being a public servant and having the custody of any prisoner of war, negligently suffers such prisoner to escape from any place in which such prisoner is conﬁned, shall be punishable with imprisonment for a term which may extend to three years, and shall also be liable to ﬁne.

Assisting lndlais enemies.

lnﬁltrzition for comm-

itring offence against national scciirity.

Aiding escape of. rescu-

ing or harbouring prisoner of war.

Public servant voluntarily allowing prisoner of war to es-

cape.

Public servant negligently sullering prisoner of war to escape.

Waging war against any foreign State at peace with India.

Con'nrtit-

ting depre-

dation on territories of foreign State at peace with India.

Receiving property taken by means of such wag-

ing of war or depre-

dation.

Recruit-

ment to, or f:t'llist-

ment in, armed forces of foreign States.

CHAPTER 4 RELATIONS WITH FOREIGN Srrrrrs

14. Whoever wages war against the Government of any foreign State at peace with India, or attempts to wage such war, or abets the waging of such war, shall be punishable with imp« risonment for a term which may extend to ten years, and shalt also be liable to ﬁne.

15. Whoever commits depredation, or makes preparation to commit dept-edation, on the territories of any foreign State at peace with India, shall be punishable with imprisonment for a term which may extend to seven years, and shall also be liable- to ﬁne and to for feitttre of any property used or intended to be used in committing such depredation or acquired by such depredation.

-16. Whoever receives any property knowing the same to have been taken in the commission of an offence under section 14 or section 15, shall be punishable with imprisonment for L1 term which may extend to seven years, and shall also be liable to ﬁne an.d to forfeiture of the property so received.

17. (1) if, in the interests of friendly relations with foreign States or national security, the Central Government considers it necessary so to do, it may, by notiﬁcation in the Oflicial Gazette, prohibit, or impose conditions on,ﬁ

(a) recruiting for service in the armed forces of a speciﬁed foreign State;

(in) enlistment for such service;

(2) Whoever, in contravention of such notiﬁcation,-----

(a) induces, or attempts to induce, any person to accept,_ or agree to accept, or to proceed to any place with a view to obtaining, any commission or employment in the armed forces of a foreign State, or

(b) knowingly aids in the engagement of any person so. induced by forwarding or conveying him or by advancing money or in any other way whatsoever, or

(c) enlists himself with a View to obtaining any commis- sion or employment in the armed forces of a foreign State, or (cf) knowingly aids in such enlistment of any person, shall be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with both.

CHAPTER 5 OFFENt:Es RELATING ro Tl-IF. ARMED FORCES

18. Whoever abets the committing of mutiny by an oﬂieer or member of any of the armed forces shall,---

(a) if mutiny be committed in consequence of such abetment, be punishable with death, or with imprisonment for life, or with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to fine; and (17) in any other case, be punishable with rigorous imp- risonment for a term which may extend to ten years, and shall also be liable to line.

19. Whoever attempts to seduce any officer or member of' any of the armed forces from his allegiance or his duty shall be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to ﬁne.

20. Whoever abets an assault by an oﬂicer or member of .any of the armed forces on any superior ofﬁcer being in the execution of his oﬂice shall,---

(a) if such assault to be committed in consequence of that abetment, be punishable with imprisonment for a term which may extend to seven years, and shall also be liable to ﬁne; and '

(b) in any other case, be punishable with imprisonment for a term which may extend to three years, and shall also be liable to ﬁne.

21. Whoever abets the desertion of any oﬁicer or member

-of any of the armed forces shall,--

(a) if the desertion be committed in consequence of that abetment, be punishable with imprisonment for a term which may extend to ﬁve years, or with ﬁne, or with both;

(12) in any other case, be punishable with imprisonment for a term which may extend to two years, or with ﬁne, or with both.

22. Whoever, knowing or having reason to believe that an officer or member of any of' the armed forces has deserted, harbours such oflicers or member, shall be punishable with imprisonment for a term which may extend to two years, or with ﬁne, or with both.

Exception.-----This provision does not extend to the case in which the harbour is given by a wife to her husband.

A betment 01' nitatmy.

Attempt-

ing to sutitlce olliccr or member from duty.

Abetmcnt of assault.

on superior oliit-cl'.

Abetment of deser-

tion from armed forces.

lnl arbour-

in _u,' desert-

er.

Abetment of an act of insub-

ordination.

Incitcment to mutiny or other act of insubordi-

nation.

Dissuation from en-

listing and instigation to mutiny or insub-

ordination after enlist-

ment.

Persons subject to certain laws, not to be punished under the Chapter.

23. Whoever abets what he knows to be an act of insubor-- dlilnﬁtion by an ofﬁcer or member of any of the armed forces, s a ,--

(:1) if such act of insubordination be committed in consequence of that abetrnent, be punishable with imprison- ment fora term which may extend to two years, or with ﬁne, or with both; and

(b) in any other case, be punishable with imprisonment for a term which may extend to six months. or with ﬁne, or with both.

24. Whoever makes or publishes or circulates any statement, rumour or report, with intent to cause, or which is likely to cause, any officer or member of any of the armed forces to mutiny or otherwise disregard or fail in his duty as such officer or member, shalt be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with both.

Explanation.--A person making, publishing or circulating any such statement, rumour or report, who has reasonable grounds for believing that such statement, rumour or report is true and makes, publishes or circulates it in good faith and without any such intent as aforesaid, does not commit an offence under this section.

25. Whoever :---

(a) with intent to affect adversely the recruitment of persons to serve in the armed forces of the Union, dissuades or attempts to dissuade the public or any person from enter- ing any such forces, o.r

(b) without clissuading or attempting to dissuade from entering such forces, instigates the public or any person to do, after entering any such force, anything which is punishable as mutiny or insubordination under the law rela.-ting to that armed force, shall be punishable with imprisonment for a term which may extent do three years, or with. ﬁne, or with both.

Exp1am2t1'on.--The provisions of clause (:1) do not extend to comment on, or criticism oﬂ the policy of the Government in connection with the armed forces, made in good faith without any intention of dissuading from enlistment, or to advice given in good faith for the beneﬁt of the individual to whom it is given, or of any member of his family, or of any of his dependants.

26. No person subject to the Army Act, 1950, the Navy Act, 1957, the Air Force Act, 1950, or any other law relating to the armed forces of the Union is subject to punishment under the preceding provisions of this Chapter for any of the offences therein deﬁned.

27. Whoever, not being an ofﬁcer or member of the armed force , wears any garb or carries any token resembling any garb or token used by such an oﬂicer or member with the intention that it may be believed that he is such an officer or member shall be punishable with imprisonment for a term which may extend to six months, or with ﬁne, or with both.

CHAPTER 6 SUBVERSIVE Acrrvmrs

28. Whoever commits, or abets the commission of, any dis- ruptive activity, or advocates or advises any disruptive activity, shall be punishable with impriosonment for a term which may extend to seven years and shall also be liable to ﬁne.

ExpIamm'cm.--For the purposes of this section,-

(cz) "disruptive activity" means any action taken, whether by act done, or by words spoken or written, or by signs, or by visible representation, or otherwise, -

(1') which questions, disrupts, or is intended to disrupt, the sovereignty and territorial integrity of India; or

(ii) which is intended to bring about, or supports any claim for, the cession of any part of India, _or the secession of any part of India from the Union, or

(iii) which incites any person to bring about such cession or secession;

(b) "cession" includes the admission of claim of any foreign country to any part of India;

Exception.---«Nothing in this section applies to any treaty, agreement or convention entered into between the Government of India and the Government of any other country or to any negotiations therefor carried on by any person authorised in this behalf by the Government of India.

29. Whoever organises, trains, maintains or promotes any group the members of which are trained or equipped to use force for achieving its object and which is organised-

(rz) for the purpose of usurping the functions of the armed forces; or

(b) for the purpose of committing acts of sabotage punishable under section 32, or Wearing garb or carrying token used by ofﬁcer or member of the armed forces.

Disruptive activity.

Para-

military groups.

Treason-

able relat-

ions with foreign State or Institutions or organi-

cation.

Treason-

able decep-

tion.

Sabotage.

Spying 100

(c) for any other purpose prejudicial to the national security, shall be punishable with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to ﬁne;

and whoever participates in, or belongs to, any such group as aforesaid shall be punishable with rigorous imprisonment for a term which may extend to live years, and shall also be liable to ﬁne.

30. Whoever, for any purpose prejudicial to the national security, maintains relations with a foreign state or with an ins- stitution or organisation outside India shall be punishable with rigorous irnprisonment for a term which may extend to ten years, and shall also be liable to ﬁne.

31. Whoever, for any purpose prejudicial to the national security, intentionally transmits to a public servant a false report the content of which is likely to disrupt relations between I ndia and a foreign State or an international institution, shall be punish- able with rigorous imprisonment for a term which may extend to seven years, or with ﬁne, or with both.

32. (l} Whoever, for any purpose prejudicial to the national security, does any act which impairs the efficiency or impedes the working of, or causes damage to,«+

(a) any prohibited place or any machinery or apparatus therein, or (17) any means of public transportation, or

(c) any means of telecommunication, shall be punishable with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to line.

(2) A person shall not be guilty of an offence under this section by reason only that he stops work as a result of an indus- trial dispute as defined in clause (k) of section 2 of the industrial Disputes Act, 1947; but nothing in this subsection shall _ait"ect his liability to be prosecuted for any otfenoe which he rnuy have committed against the provisions of that Act.

33. If any person, for any purpose prejudicial to the national security,-

(rr) enters, inspects, passes over, approaches, or is in thi- vicinity of, a prohibited place; or ((2) makes any model, sketch or note which is intended or likely to be, directly or indirectly, useful to an enemy; or

(c) obtains, collects or records any such sketch. model or note as aforesaid, or any article, document or information which is intended or likely to be, directly or indirectly, useful to an enemy or relates to a matter the disclosure of which is likely to be prejudicial to the national security; or 10]

(d) publishes or communicates to any other person any such thing or information as aforesaid, he shall be punishable with rigorous imprisonment for a term which may extend to fourteen years, and shall also be liable to ﬁne.

34. (1) If any person, having in his possession any ofﬁcial 3,iﬁ"'C';;§i"g Secrctsﬁ sccrels.

(a) uses it for the beneﬁt of any foreign State or in any manner pl'E5_]UdiCi3.i to the national security: or

(b) wilfully communicates it to any person other than a person to whom he is authorised to communicate it, or a person to whom it is, in the interests of State, his duty to communicate, or a Court of Justice; or

(c) retains it when he has no right to do so. or when it is contrary to his duty to do so, or wilfully fails to comply with any direction issued by lawful authority with regard to its return or disposal: or (c!) fails to take reasonable care of, or so conduets himself as to endanger the safety of, the official secret, he shall--

(ii) If the official secret is one speciﬁed in clause (19) or clause (42) of section 33, be punishable with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to ﬁne;

(ii) in other cases, be punishable with imprisonment for three years, or with line, or with both.

('2) lfany person receives any ofﬁcial secret knowing or having reason to believe that it is communicated to him in contraven- tion of sub-section (1) of this section or section 33, he shall» (I) if the ofﬁcial secret is one speciﬁed in clause (b) or clause (c) of section 33, be punishable with rigorous impri- sonment for a term which may extend to seven years, and shall also be liable to ﬁne;

(ii) in other cases, be punishable with imprisonment for three years, or with ﬁne, or with both.

{3} For the purposes of sub-section (2), a person who is in possession of an official secret without lawful authority may be presumed, until the contrary is proved. to have received it knowing or having reason to believe that it is communicated to him in contravention of sub-section (I) of this section or section 33, as the case may be.

(4) In this section "official secret" means any thing or in- I.formation~--

(a) which is speciﬁed in clause (b) or clause (c) of section 33, or Using false oflicial uniforms, documents and seals for pur-

PUSE Free judicial to national security.

1[)2

(b) which has been entrusted in conﬁdence to the offen- der by any person holding office under Government, or

(c) which the offender has obtained or to which he has had access owing to his position as a person who holds or has held oﬂice under Government, or as a person who holds or has held a contract made on behalf of Government, or as a person who is or has been employed under a person who holds or has held such an oﬂice or contract.

35. (1) If any, person, for the purpose of gaining admission. or of assisting any other person to gain admission, to a pro- hibited place or for any purpose prejudicial to the national security,"

(a) uses or wages, without lawful authority, any armed force, police, or other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive.

or falsely represent himself to be a person who is or has been entitled to use or wear any such uniform; or

(b) orally, or in any document signed by him or on his behalf, knowingly makes, or connives at the making of, any false statement or any omission; or

(c) forges, alters, or tampers with any olﬁcial document. or knowingly uses or has in his possession any such forged. altered, or irregular otﬁcial document; or

(d) personates, or falsely represents himself to be. a person holding or in the employment of a person holding ofﬁee under Government, or falsely represents himself to be or not to he a person to whom an official document has been duly issued or communicated: or (2) with intent to obtain an official document. whether for himself or any other person knowingly makes any false statement; or

(f) without lawful authority, uses, has in his possession or under his control, manufactures or sells any official seal. or any die, seal or stamp so nearly resembling an ofﬁcial seal as to be calculated to deceive, or counterfeits any oﬁicial seal, he shall be punishable with rigorous imprisonment for a term which may extend to three years, or with ﬁne, or with both.

(2) lf any person, for any purpose preiudicial to the national security,-

(a) retains any official document, whether or not completed or issued for use. when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with any directions issued by, or under authority of, Govern- ment with regard to its return or disposal thereof; or 103

(b) allows another person to have possession of, or co- mmunicates to another person, any official document issued for his use alone; or _ (c) without lawful authority or excuse, has in his possess- 1011. any oﬂicial document issued for the use of some person other than himself; or

(d) on obtaining possession of any official document, by ﬁnding or otherwise, wilfully fails to restore it to the person. or authority by whom or for whose use it was issued. or to a police oﬂicer;

he shall be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with both.

(3) In this section,--

(a) "official document" means any armed force police or ofﬁcial pass, permit, certificate, licence or other document or a similar character, and includes any secret official code or pass--word, (I2) "ofliclal seal" means any die, seal, stamp of or be- longing to, or used, made or provided by any department of Government, or by any diplomatic or armed force authority appointed by, or acting under the authority of, Government.

36. If any person in the vicinity of any prohibited place obs- tructs, knowingly misleads or otherwise interferes with or impedes, any police officer or any oﬂicer or member of the armed forces engaged on guard, sentry, patrol, or other similar duty in relation to the prohibited place, he shall be punishable with imprisonment which may extend to three years, or with ﬁne, or with both.

37. If any person fails----

(a) to give on demand to any member of the armed forces engaged on guard, sentry, patrol or other similar duty,- or to any Superintendent of police, or to any other police ofiicer not below the rank of sub-inspector empowered by an Inspec- tor-General or Commissioner of Police in this behalf, any information in his power relating to an offence or suspected offence under section 33 or section 34, or

(b) if so, required, and upon tender of his reasonable expenses, to attend at such reasonable time and place as may be speciﬁed for the purpose of furnishing such information, he shall be punishable with imprisonment for a term which may be extend to three years, or with line, or with both.

38. (1) If any person knowingly harbours any person whom he knows or has reasonable grounds for supposing to be a person who is about to commit or who has committed an offence under sec- tion 32 or section 33, or knowingly permits to meet or assemble Interfering with the police or armed forces on duty at a prohibited place.

Failure to give in-

formation.

Penalty for harbouring saboteurs or spi s.

Sedition.

'Search Warrants.

104

in any premises in his occupation or under his control any such persons, he shall be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with both.

(2) If any person who has harboured any such person as afore- said, "or who has permitted to, meet or assemble in any premises in his occupation or under his control any such person as aforesaid. fails to give on demand to a superintendent of police oﬁjcer not below the rank of sub-inspector empowered by an Inspector- General or Commissioner of Police in this behalf, any information in his power relating to any such person or persons, he shall be punishable with imprisonment for a term which may extend to three years, or with ﬁne, or with both.

39. Whoever by words, either spoken or written, or by signs, or by visible representation or otherwise, excites, or attempts to excite, disaffection towards the Con- stitution, or the Government or Parliament of indie. or the Government or Legislature of any State, or the administration of justice, as by law established, intending or knowing it to be likely thereby to endanger the sovereignty and integrity of India or the safety or security of lndia or any part thereof, or to cause public disorder, shall be punishable with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.

Explanation I.-----The expression "disaﬁ'ection" includes feel- ings of enemity, hatred or contempt.

Explanation 2.---Comments expressing disapprobation of the provisions of the Constitution or of the actions of the Govern- ment, or of the measures of Parliament or a State Legislature, or of the provisions for the administration of justice, with a view to obtaining their alteration by lawful means without exciting or attempting to excite disaﬁection, do not constitute an oﬂ"cnce under this section.

40. (I) If a metropolitan magistrate, magistrate of the first class or sub-divisional magistrate is satisﬁed by infcrrnation on oath that there is reasonable ground for suspecting that an offence under any of the sections 32 to 38 has been or is about to be corn- mitted, he may grant a search warrant authorising any police ofﬁcer named therein not being below the rank of an oﬂicer in charge of a police station, -

(rr) to enter at any time any premises or place named in the warrant, if necessary, by force, and

(b) to search the premises or place and every person found therein, and a 105

(c) to seize any sketch, model, article, note or document or anything of alike nature, or anything which is evidence of an offence under any of the said sections having been or being about to be committed which he may find on the premises or place or any such person, and with regard to or in connection with which he has reasonable ground for suspecting that an offence under any of the said sections has been or is about to be committed.

(2) Where it appears to a police oﬁicer, not being below the rank of superintendent, that the case is one ol' great emergency. and that in the interests of the State immediate action is necessary, he may, by a written order under his hand, give to any police oiﬁcer the like authority as may be given by the warrant of L1 magistrate under this section.

(3) Where action has been taken by a police ollicer under sub--section (2), he shall, as soon as may be, report such action. in a metropolitan area to the chief metropolitan magistrate, and outside such area to the district or sub-divisional magistrate.

(4) The provisions of the Code of Criminal Procedure, l9'7l. shall, so far as may be applicable, apply to any search or seizure under this section as they apply to any search or seizure made under the authority of a warrant issued under section 94 of tnat Code.

41. in addition and.-without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings, if, in the course of any inquiry into or trial of, any person for an offence under any of the sections 28 to 38, or iii the course of any proceedings in appeal or revision from such inquiry or trial, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any state- ment to be made in the course of the proceedings would be pre- judicial to the national security, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public.

42. In a prosecution for an offence under any of the sections 29 to 35, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose pre- judicial to the national security, and, notwithstanding that no such act is proved against him, he may be convicted, if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the national security.

43. (1) In any prosecution for an oﬂence under section 33, if any sketch, model, article, note, document or information re- lating to or used in any prohibited place, or relating to anything in such a place is made, obtained, collected, recorded, published Exclusion of public from cer-

tain pru-

ceedings.

Evidence of purpose prejudicial to national security.

Presumpt-

ions in prosecution for spying.

Deﬁnitions.

105

or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it- appears that his purpose was a purpose prejudicial to the national security, such sketch, model, article, note, document, or information shall be presumed to have been made, obtained, collected, recorded, pub- lished or communicated for a purpose prejudicial to the national security.

(2) In any prosecution of a person for an olfence under sec- tion 33,

(a) the fact that he has been in communication with, or attempted to communicate with, a foreign agent, whether within or without India, shall be relevant for the purpose of proving that he has, for a purpose prejudicial to the national security, obtained or attempted to obtain information which is intended to be or likely to be, directly or indirectly, useful to an enemy;

(b) a person may be presumed to have been in communi- cation with a foreign agent if --

(1') he has, either within or without India, visited the address of a foreign agent or consorted or associated with a foreign agent, or (if) either within or without India, the name or address of, or any other information regarding, a foreign agent has been found in his possession, or has been ob- tained by him from any other person;

(c) any address, whether within or without India, in respect of which it appears that there are reasonable grounds for suspecting it of being an address used for the receipt of communications intended for a foreign agent, or any address at which a foreign agent resides, or to which he resorts for the purpose of giving or receiving communications, or at which he carries on any business, may be presumed to 'be the address of a foreign agent, and communications addressed to such an address to be communications with a foreign agent.

CHAPTER 7 Suavsnsrvn ASSOCIATIONS

44. In this Chapter,---

(cz) "prescribed" means prescribed by rules. made under section 59;

(b) "subversive activity" means any act punishable under section 3, 4, 6, 7, 28, 29, 30 or 32;

107

(c) "subversive association" means any association which has for its object a subversive activity, or which en- courages or aids persons to undertake such activity or of which the members undertake such activity;

(d) "Tribunal" means the Tribunal constituted under section 47.

45. (1) If the Central Government is of opinion that any association is, or has become, a subversive association, it may. by notiﬁcation in the ofﬁcial Gazette declare such association to be a subversive association.

(2) Every such notiﬁcation shall specify the grounds on which it is issued and such other particulars as the Central Government may consider necessary:

Provided that nothing in this subsection shall require the Central Government to disclose any fact which it considers to be against the public interest to disclose.

(3) No such notiﬁcation shall have effect until the Tribunal has, by an order made under section 46, conﬁrmed the declaration made therein and the order is published in the Ofﬁcial Gazette:

Provided that if the Central Government is of opinion that circumstances exist which render it necessary for that Govern- ment to declare an association to be a subversive association with immediate elfect, it may, for reasons to be stated in writing, direct that the notiﬁcation shall, subject to any order that may be made under section 46, have effect from the date of its publica- tion in the Official Gazette.

(4) Every such notiﬁcation shall, in addition to its publi-

cation in the Oﬁicial Gazette, be published in not less than one

-daily newspaper having circulation in the State in which the principal oﬂ'ice, if any, of the association affected is situated, .and shall also be served on such association, in such manner as the Central Government may think ﬁt and all or any of the following modes be followed in eﬂecting such service, namely :--

(a) by afﬁxing a copy of the notiﬁcation to some conspicuous;

part of the office, if any, of the association; or

(b) by serving a copy of the notiﬁcation, where possible, or:

the principal oﬁice-bearers, if any, of the association; or

-(c) by proclaiming by beat of drum or by means of loud- speakers, the contents of the notiﬁcation in the area in which the activities of the association are ordinarily carried on; or

(d) in such other manner as may be prescribed.

Declarat-

ion of an association as subver-

sive asso-

ciation.

Reference to Tribun- al, Tribunal.

108

46. (I) Where any association has been declared a Subversiw:

association by a notiﬁcation issued under sub-section (1) of section 45, the Central Government shall, within thirty days from the date of the publication of the notiﬁcation under the said section, refer the notification to the Tribunal for the purpose of adiudicating whether or not there is sufficient cause for declaring the association as a subversive association. -

(2) On receipt of a reference under sub-section (1), the Tri-

bunal shall call upon the association affected, by notice in writing. to show cause, within thirty days from the date of such notice.

"thy the association should not be declared a subversive asso- ctation.

(3) After considering the cause, if any, shown by the associa-

tion or the office-bearers or members thereof, the Tribunal shall hold an inquiry, in the manner speciﬁed in section 51. and after calling for such further information as it may consider necessary from the Central Government or from any oiﬁce-bearer or mem- ber of the association, it shall decide whether or not there is sutﬁcient cause for declaring the association to be a subversive association and make, as expeditiously as possible and in any case within a period of six months from the date of the issue of the notiﬁcation under sub-section (1) of section 45. such order as it may deem ﬁt either conﬁrming the declaration made in the notiﬁcation or cancelling the same.

(4) The order of the Tribunal made under sub-section (3) shall be published in the Official Gazette-

4'7. (1) The Central Government, may, by notiﬁcation in the Oﬂicial Gazette, constitute as and when necessary, a tribunal to be known as the "Subversive Activities (Prevention) Tribunal"

consisting ofone person. to be appointed by the Central Govern- ment :

Provided that no person shall be so appointeri unless he is a judge of a High Court.

(2) If, for any reason, a vacancy (other than a temporary absence) occurs in the otﬁcae of the presiding oﬂicer of the Tribu-

nal, then, the Central Governmc nt shall appoint another person in accordance with the provisions of this section to fill the vacancy and the proceedings may be continued before the Tribunal from the stage at which the vacancy is ﬁlled.

{3} The Central Government shall make available to 'the Tribunal such staﬂ' as may be necessary for the discharge of its functions under this Act.

(4) All expenses incurred in connection with the Tribunal shall be defrayed out of the Consolidated Fund of India.

109

(5) Subject to the provisions of section 51, the Tribunal shall have power to regulate its own procedure in all matters arising out of the discharge of its functions including the place or places at which it will hold its sittings.

(6) The Tribunal shall, for the purpose of making an inquiry under this . ct, have the same powers as'are vested in a civil court under the Code of Civil Procedure, I908, whiletryigng a suit, in respect of the following matters, namely--

(a) the summoning and enforcing the attendance of any witness and examining him on oath; ' ' (la) the discovery and production of any docurnent or other material object produced as evidence;

(Ii) the requisitioning of any public record from any court or ofﬁce;

(e) the issuing of any commission for the examination of witnesses. , (7) Any proceeding before the Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code and the Tribunal shall be deemed to be a civil court for purposes of section 196 and Chapter XXVI of the Code of Criminal Procedure, 1971.

48. ( 1) Subject to the provisions of sub-section (2), a noti- ﬁcation issued under section 45, shall, if the declaration made therein is conﬁrmed by the Tribunal by an order made under section 46, remain in force for a period of two years from the date on which the notiﬁcation becomes effective.

(2) Notwithstanding anything contained in sub-section (I), the Central Government may, either on its own motion or on the application of any person aggrieved, at any time, cancel the notiﬁcation issued under section 45, whether or not the declara- tion made therein has been conﬁrmed by the Tribunal.

49. (1) Where an association has been declared a subversive association by a notiﬁcation issued under section 45, which has become eifective under sub-section (3) of that section and the Central Government is satisﬁed, after such inquiry as it may think ﬁt, that any person has custody of any moneys, securities or credits which are being used or are intended to be used for the purpose of the subversive association, the Central Government may, by order in writing, prohibit such person from paying, delivering, transferring or otherwise dealing in any manner whatsoever with such moneys, securities or credits or with any other moneys, securities or credits which may come into his custody after the making of the order, save in accordance with 34 M of Law/7l----8 Period of' operation and can-

collation of notiﬁcat-

ion.

Power to prohibit the use of funds of' a subversive associat-

ion.

Power to notify places used for the purpose of subver-

sive associ3 ation.

110

the written orders of the Central Government and a copy of such order shall be served upon the person so prohibited in the . manner speciﬁed in sub-section (3).

(2) The Central Government may endorse a copy of the prohibitory order made under sub-section (1) for investigation to any gazetted olﬁcer of the Government it may select, and such copy shall be a warrant whereunder such ofﬁcer may enter in or upon any premises of the person to whom the order is directed, examine the books of such person, search for moneys, securities or credits, and make inquiries from such person or any officer. agent or servant of such person, touching the origin of any deal- ing in any moneys, securities or credits which the investigating ofﬁcer may suspect are being used or are intended to be used for the purpose of the subversive association. t (3) A copy of an order made under this section shall be served in the manner provided in the Code of Criminal Procedure, 1971, for the service of a summons, or, where the person to be served is a corporation, company, bank or other association, it shall be served on any secretary, director or other oﬁicer or person concerned with the management thereof, or by leaving it or sending it by post addressed to the corporation, company, bank or other association at its registered oljice, or where there is no registered office, at the place it carries on business.

(4) Any person aggrieved by a prohibitory order made under sub--section (1) may, within ﬁfteen days from the date of the service of such order, make an application to the Court of the District Judge within the local limits of whose jurisdiction such person voluntarily resides or carries on business or personally works for gain, to establish that the moneys, securities or credits in respect of which the prohibitory order has been made are not being used or are not intended to be used for the purpose of the subversive association, and that Court shall decide the ques- tion.

(5) Except so far as it is necessary for the purposes of any proceedings under this section. no information obtained in the course of any investigation made under sub--section (2) shall be divulged by any' gazetted ofﬁcer of the Government. without the consent of the Central Government.

(6) In this section, "security" includes a document whereby any person acknowledges that he is under a legal liability to pay money, or whereunder any person obtains a legal right to the payment of money.

50. (1) Where an association has been declared a sub- vensive association by a notiﬁcation issued under section 45, which has become effective under sub--section (3) of that section, the Central Government may, by notiﬁcation in the Ofﬁcial Gazette, notify any place which in its opinion is used for the purpose of such subversive association.

lll _ Exp!amm'on.--For _the_' purpose of this sub"-section, "place" includes a house or building or part thereof, a tent and a vessel.

_ (2_) On the issue of a notiﬁcation under sub--section (1), the district magistrate within the local limits of whose jurisdiction such notiﬁed place is situate or any ofﬁcer authorised by him in writing in this behalf shall make a list of all movable properties (other than wearing apparel, cooking vessels, beds and beddings, tools of artisans, implements or husbandry, cattle, grain and food-stulfs and such other articles as he considers to be of a trivial nature) found in the notiﬁed place in the presence of two respectable witnesses. .

(3) If', in the opinion of the district magistrate, any articles speciﬁed in the list are or may be used for the purpose of the subversive association, he may make an order prohibiting any person from using the articles save in accordance with the written orders of the district magistrate, (4) The district magistrate may thereupon make an order that no person who at the date of the notification was not a resident in the notiﬁed place shall, without the permission of the district magistrate, enter, or be on 'or in, the notiﬁed place :

Provided that nothing in this sub--section shall apply to any near relative of any person who was a resident in the notiﬁed place at the date of the notiﬁcation.

(5) Where in pursuance of sub-section (4), any person is granted permission to enter, or to be on or in, the notiﬁed place.

that person shall, while acting under such permission, comply with such orders for regulating his conduct as may be given by the district magistrate.

(6) Any police\ofﬁcer, not below the rank of a sub-inspector. or any other person authorised in this behalf by the Central Government may search any person entering or. seeking to enter. or being on or in, the notiﬁed place and may detain any such person for the purpose of searching him .-

Provided that no female shall be searched in pursuance of this sub-section except by a female.

(7) if any person is in the notiﬁed place in contravention of' an order made under sub-section (4), then, without prejudice to any other proceedings which may be taken against him, he may be removed therefrom by any officer or by any other person authorised in this behalf by the Central Government.

(8) Any person aggrieved by a notiﬁcation issued in respect of a place under sub-section (1) or by an order made under sub- section (3) or sub-section (4) may, within thirty days from the date of the notiﬁcation or order, as the case may be, make an 34 M 0l'Law;'7 1-H9.

Procedure to be foll-

owed in the dis-

posal of applicat-

ions under this Chapter.

Penalty for being member of a sub-

versive association.

Penalty for deal-

ing with funds of a subversive associat-

ion.

Penalty for contraven-

tion of an order made in res_pect of a notiﬁed place.

112

application to the Court of the District Judge within the local limits of whose jurisdiction such notiﬁed place is situate-

(tt) for declaration that the place has not been used for the purpose of the subversive association; or (in) for setting aside the order made under sub-section (3) or sub-section (4), and on receipt of.t.h_e application the Court of the District Judge shall, after giving the parties an opportunity of being heard, decide the question.

51. Subject to any rules that may be made under this Chapter, the procedure to be followed by the Tribunal in holding an inquiry under sub-section (3) of section 46, or by ,a Court of' the District Judge in disposing of any application under sub-section (4) of section 49 or sub-section (8) of section 50 shall, so far as may be, be the procedure laid down in the Code of Civil Procedure, 1908, for the investigation of claims, and the dccisioit of the Tribunal or the Court of the District Judge, as the case may he, shall be ﬁnal. »

52. Whoever is and continues to be a member of an associa- tion declared to be subversive association by a notiﬁcation issued under section 45 which has become effective under sub-section (3) of that section, or takes part in meetings of any such subversive association, or contributes to, or receives or solicits any contri- bution for the purpose of, any such subversive association or in any way assists the operations of any such subversive association, shall be punishable with rigorous imprisonment for a term which may extend to ﬁve years, and shall also be liable to ﬁne.

53. if any person on whom a prohibitory order has been served under sub-section (1) of section 49 in- respect of any moneys, securities or credits, pays, delivers, transfers or other- wise deals in any manner whatsoever with the same in contra« vention of the prohibitory order, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both, and notwithstanding anything contained in the Code of Criminal Procedure, 19?], the court trying such contravention may also impose on the person convicted an addi- tional ﬁne to recover from him the amount of the moneys or credits or the market value of the securities in respect of which the prohibitory order has been contravened or such part thereof as the court may deem ﬁt.

54. (1) Whoever uses any article in contravention of a pro-

_ hibitory order in respect thereof made under sub-section (3) of section Si) shall be punishable with imprisonment for a term which may extend to one year, and shall also be liable to ﬁne.

(2) Whoever knowingly and wilfully is in, or effects or attempts to eﬁ"ect entry into, a notiﬁed place in contravention of 113

- an order made under sub-section (4) of section 50 shall be punish-

able with imprisonment for a term which may extend to one year, and shall also be liable to ﬁne.

55. An 'association shall not be deemed to have ceased to exist by reason only of any formal act of its dissolution or change of name but shall be deemed to continue so long as any actual combination for the purposes of such association continues between any members thereof.

56. Save as otherwise expressly provided in this Chapter, no proceeding taken under this Chapter; by the Central Govern- ment or the district magistrate or any officer authorised in this behalf by the Central Government or the district magistrate shall be called in question in any court in any suit or application or by way of appeal or revision, and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Chapter.

57. (1) No suit or other legal proceeding shall lie against the Government in respect of any loss or damage caused or likely to be caused by anything which is'in good faith done or intend- ed to be done in pursuance of this Chapter or any rules or orders made thereunder.

(2) No suit, prosecution or other legal proceeding shall lie against the district magistrate or any officer authorised in this behalf by the Government or the district magistrate in respect of anything which is in good faith done or intended to be done in pursuance of this Chapter or any rules or orders made there- under.

58. The Central Government may, by notiﬁcation in the Ofﬁcial Gazette, direct that all or any of the powers which may be exercised by it under section 49 or 50 shall, in such circumstances and under such conditions, if any, as may be speciﬁed in the noti- ﬁcation, be exercised also by any State Government, and the State Government may, with the previous approval of the Central Government by order in writing direct that any power which have been directed to be exercised by it shall, in such circurnstan C- es and under such conditions, if any, as may be speciﬁed in the direction, be exercised by any person subordinate to the State Government as may be speciﬁed therein.

59. (1) The Central Government may, by notiﬁcation in the Official Gazette, make rules to carry out the purposes of this Chapter.

Continua-

nce of associat-

ion.

Bar of' Jurisdiction Protection of action taken in good Iaith.

Powers to delegate.

Power to make rules.

Cogniz-

ance of ottences.

Bar to taking cog-

nizance.

after lapse of time.

'1." rhc reference"; isto the Cr. P.C-."'l§iillf,fl97{).

114

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may providefor all or any of the following matters namely :~--

(a) the service of notices or orders issued or made under this Chapter and the manner in which such notices or orders may be served, where the person to be served is a corporation, company. bank or other association;

' (_b) the procedure to be followed by the Tribunal or a. District Judge in holding any inquiry or disposing of any application under this Chapter;

(3) Every rule made -by the Central Government under this section shall be laid. as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modiﬁcation in the rule or both Houses agree that the rule should not be made. the rule shall thereafter have effect only in such modiﬁed form or be of no effect, as the case may be, so however, that any such modiﬁca- tion or annulment shall be without prejudice to 1.he validity of anything previously done under that rule.

C HAPTE R 8 MisCELLAi\EoUs

60. (1) No Court shall take cognizance of any o1'l'ence under this Act except with the previous sanction of the Central Government 'or of the State Government.

(2) The Central Government or the State Government before granting sanction undcr Sub-section (1). may order a pre- liminary investigation by a police otliccr not being below the rank of Inspector, in which case such police ofﬁcer shall have the powers referred to in sub-section (3) of section I517 of the Code of Criminal Procedure.' 6]. (I) No Court shall take cognizance of an'ol'fencc punish- able under sections 24, 25, 28, 39 or 54, after the expiry of one year.

(2) The provisions of sections 513 to 5l61 of the Indian Penal Code shall apply for the purpose of computing the period of limitation under sub-section (1) as they apply for the purpose of computing the period of limitation for taking cognizance of the offences under that Code.

2. As recommended in the 4211:} Report, see para. 24.30.

'C. (i .1 H5 . 62. Notwithstanding anything contained in the Code of Criminal Procedure, 1971, any offence under this Act may be inquired into and tried by any court within whose jurisdiction the offence was committed or the accused person is found.

. 63. Notwithstanding anything contained in the Code of Criminal Procedure, 19"/'l,--

(:2) offences under sections 2], 22, 23 and 27 shall be cognizable;

(b) the offence under section 39 shall be non--cognizable; and

(c)toﬁ"ences under sections 15, I6 and 39 shall be triable only by the Court of Session.

64. (1) It' the person committing an offence under this Act is a company, every person who at the time the offence was com- mitted, was in charge of'. and was responsible to, the company for the conduct of the business of the company. as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub--section shall render any such person liable to such punishment provided in this Act if he proves that the offence was committed without his know-

ledge or that he exercised all due diligence to prevent the com- mission of such offence.

(2) Notwithstanding anything contained in sub--section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other oﬁicer shall also be deemed to be guilty of that offence and shall be lia-

ble to be proceeded against and punished accordingly.

Exp!anan'rm.----For the purposes of this sectiona

(a) "company" means a body corporate and includes a ﬁrm or other association of individuals; and

(b) "director", in relation to a ﬁrm, means a partner in the ﬁrm.

65. (1) The following enactments are hereby nameIy,--

repealed, (:1) chapters 6 and 7 of the Indian Penal Code; ([3) the Foreign Recruitment Act, 1874;

Place of inquiry of trial.

Prtivision as to cer-

tain offences re-

garding cognizabi--

lity and competent court.

'-53-, Ullences by com-

panies.

Rcpeals and sav-

mgs.

116

(d) section 2 of the Criminal Law Amendment Act, 1961 g"

and

(e) the Unlawful Activities (Prevention) Act, 1967.

(2) The British Statute entitled the Foreign Enlistment Act, 1870 (33 & 34 vie. c. 90) in so far as it extends to, and operates as part of the law of, India or any part thereof is hereby repealed.

(3) Transitional provisions.

Existing Section 121 Section 121A Section 122 Section 123 Section 124 Section 124A Section 125 Section 126 Section 127 Section 128 Section 129 Section 130 Section 131 Section 132 Section 133 Section 132:

Section 135 Section 136 Section 137_ Section 138 Section 139 Section 140 Section 505 (in part] COMPARATIVE TABLE (1) INDIAN PENAL Corns Proposed OOUI-hC'\UJ 39 I4 45 16 12 13 11 18 (in part) and 19 18 (in part) 20 (in part) 20 (in part) 21 22 Omitted' 23 26 27 24 As to omission of Section 137, I.P.C., see the 42nd Report.

\ U;

117

(2) OFFICIAL SECRETS ACT, 1923 Existing Proposed Section 1 --

Section 2(1) Omitted.

Section 2(2) Omitted.

Section 2(3) Omitted.

Section 2(4) 2(d) Section 2(5) 2(e) Section 2(6) ( Omitted.

Section 2(7) 2(g) Section 2(8) 2(1) Section 2(9) 2(j) Section 2(10) Omitted.

Section 3(1) 33 Section 3(2) 42 and 43(1) Section 4(1), 4(2)(a), (c) 43(2) Section 4(2)(b) 2(b) Section 5(1) 34(1) Section 5(2) 34(2) Section 5(3) Omitted.

Section 5(4) 34(2) and 34(4).

Section 6(1) 35(1) Section 6(2) 35(2) Section 5(3) 35(1) and 35(3) Section 6(4) 42 Section 7 36 Section 8 37(a) and (b)-

Section 9 -Omitted.

Section 10(1) 38(1) Section 10(2) 38(2) Section 10(3) 38(3) Section 11 40 Section 12 Omitted.

Section 13(1) Omitted.

Section 13(2) Omitted.

Section 13(3) 60 Section 13(4) 62 Section 13(5) /60 Section 14 41 Section 15 64_ I18 (3) FOREIGN RECRUITING ACT, 1874 Proposed Section I Omitted.

Section 2 Omitted.

Section 3 l7(])(a)(b) Section 4 17(1) Section 5 Omitted.

Section 6 1'/'(2)(a}(b) Section 7 62 (4) FOREIGN ENLISTMENT ACT, 1870 (Ei\'o.) Exming Proposed Sections 1 to 3 Omitted.

Section 4 l7'(2)(a) Sections 5 to 15 Omitted.

Section 16 Omitted.

Section 17 62 Sections 18 to 33 Omitted.

(5) UNLAWFUL ACTil\'l]']ES (PREV'EN'l']UN) ACT, 1967' .Ex.".m'ng Proposed Section I --

Section 2(b) 28, Explanation (b) Section 2(c) 44(3) Section 2(d) 28, Explanation (C) Section 2(e) 44(d) Section 2(f) 44(b} & 28, Explanation (a) Section 2(g) 44(c) Section 2A 2(b) Section 3(1) 45(1) Section 3(2) 45(2) Section 3(3) 45(3) Section 3(4) 45(4) Sections 4(1) to 4(4) 46(1) to 46(4) Section 5(1) 47(1) Section 5(2) 47(2) Section 5(3) 47(3) Section 5(4) 47(4) _ Section 20 Section 5(5) Section 5(6) Section 5(7) Section 6(1) Section 6(2) Section 7(1) to 7(6) Section 8(1) to 8(6) Section 9 Section 10 Section 1] Section 12(1) and (2) Section 13(1) Section 13(2) Section 13(3) Section 14 Section 15 Section 16 Section 17 Section 18(1), (2) Section 19 Section 21( I), (2), (3) H9 47(5) 47(6) 47(7) 48(1) 48(2) 1 49(1) to 49(6) 50(1) to 50(8) 51 52 53 54(1) and 54(2) ' 28 Omitted.

Omitted.

55 56 60

57(U- (2) '58 Omitted.

59(1), (2). (3) TABLE SHOWING THE SECTION IN THE BILL AND THE CORRES- PONDING SECTION IN THE RELEVANT I.-'XIS']'ING ACT Bill Section 1 Section 2(3) Section 2(b) Section 2(d) Section 2(e) Section 2(g) Section 2(i) Section 2(j) Existing Act section New New Section 4(2)(b), Oﬂicial Secrets Act, 1923.

Section 2(4), , Oiﬁciai Secrets Act, 1923.

Section 2(5), Ofﬁcial Secrets Act, 1923.

Section 2(7), Otﬁciai Secrets Act, I923.

Section 2(8), Ofﬁcial Secrets Act, 1923.

Section 2(9), Oﬁiciai Secrets Act, 1923.

Bill' Section Section 2(b) Section 3 Section 4 Section 5 Section 6 Section '5' Section 8 Section 9 Section 10 Section 11 Section J2 Section I3 Section 14 Section 15 Section 16 Section l7(l)(a},{b) Section 17(2}(a), (b) Section l8 Section 19 Section 20 Section 21 Section 22 Section 23 Section 24 Section 2.5 Section 26 Section 27 Section 28 120 Bill (conrdj Existing Act Section -

Section 2A, Uni wful Activities Act". Section 121, I.P.C.

Section 122, I.P.C.

Section 123, I.P.C.

Section 121A, I.P. C. New Section 124, I.P.C.

New New Section 130 I.P.C.

Section 128, I.P.C.

Section 129, I.P.C.

Section 125, I.P.C.

Section 126, I.P.C.

Section 127, l.P. C. Sections 3 and 4, Foreign Recruiting Act, I874.

Section 5, Foreign Recruiting Act, 1874, also, section 4, Foreign Eniistment Act, 1370 (Eng).

Section 131, I.P.C. in part.

and Section 132, I.P.C. in part.

Section 131, I.P.C.

Section 133. I.P.C. in part.

and -' Section 134, I.P.C. in part.

Section [35, I.P.C.

Section 136, I.P.C.

Section 138, I.P.C.

Section 505, I.P.C. (in part}! New.

Section 139. I.P.C.

Section 140, I.P.C.

Section 13(1).

Unlawful Activities (Prev.;-vim.) Act, I967- Bill Section Section 28 Explanation (b) Section 28 Explanation (c) Section 29 Section 30 Section 3] Section 32 Section 33 Section 34(1) Section 34(2) Section 34(4) Section 35(1) Section 35(2) Section 35(3) Section 36 Section 37(a) & (b) Section 38(1) Section 38(2) Section 38(3) Section 39 Section 40 Section 41 121 Bill (conra'.) Existing Act Section Section 2(1)), Unlawful Activities (Prevention) Act, 1967.

Section 2(d), Unlawful Activities (Prevention) Act, 1967.

New New New New Section 3(1), Official Secrets Act. 1923, Section 5(1), Oﬁicial Secrets Act, 1923.

Section 5(2), 5(4), Oﬂiciai Secrets Act, 1923.

Section 5(4), Ofﬁcial Secrets Act, 1923.

Section 6(1), 6(3).

Oﬂicial Secrets Act, 1923.

Section 6(2), Oﬂicial Secrets Act, 1923.

Section 6(3), Ofﬁcial Secrets Act, 1923.

Section 7', Official Secrets Act, '192.".'.

Section 8, Oiﬁcial Secrets Act, 1923 Section 10(1), Ofﬁciai Secrets Act, 1923.

Section 10(2), Ofﬁcial Secrets Act, 1923.

Section 10(3), Ofﬁciai Secrets Act, 1923.

Section 124A, l.P.C. ' Section 11.

Olﬁcial Secrets Act, 1923.

Section '14, Oﬁicial Secrets Act, 1923.

Bil! Section Section 42 Section 43(1) Section 43(2) Section 44(a) Section 44(b) Section 44(c) Section 44(d) Section 45(1) Section 45(2) Section 45(3) Section 45(4) Section 46(1) Section 46(2) Section 46(3) Section 46(4) Section 47(1) Section 47(2) Section 47(3) Section 47(4) Section 47(5) Section 47(6) Existing Act Section Section 3(2).

Oﬂicial Secrets Act, 192:3 also Section 6(4), Ofﬁcial Secrets Act, 1923.

Section 3(2), Olﬁcial Secrets Act, 1923.

Section 4(1), 4(2)(a)(c), Otﬁcial Secrets Act, 1923.

Section 2(c), Unlawful Activities (Prevention) Act, I967.

Section 2(i'), Unlawful Activities (Prevention) Act, I967.

Section 2(g), Unlawful Activities (Prevention) Act. I967.

Sectioii 2(e), Unlawful Activities (Prevention) Act, 1967.

Section 3(1) Unlawful Activities, (Prevention) Act, 1967.

Section 3(2), Unlawful Activities (Prevention) Act, 1967.

Section 3(3), Unlawful Activities (Prevention) Act, 1967.

Section 3(4), Unlawful Activities (Prevention) Act, 1967.

Section 4(1) Unlawful Section 4(2) 1 Activities (Preven- Section 4(3) | tion) Act. 1967.

Section 4(4) I Section 5(1) } Section 5(2) | Section 5(3) Unlawful Activities Section 5(4) l (Prevention) Act, Section 5(5) ' J 1967.

Section 5(6) Bill Section Section 47(7) Sectio'n 48(1) Section 48(2) Section 49(1) Section 49(2) Section 49(3) Section 49(4) Section 49(5) Section 49(6) Section 50(1) Section 50(2) Section 50(3) Section 50(4) Section 50(5) Section 50(6) Section 50(7) Section 50(8) Section 51 \ Section 52 Section 53 Section 54(1) Section 54(2) Section 55 Section 56 Section 57(1) 123 Existing Act .S'ecn'on Section 5(7) '1 Section 6(1) Section 6(2) Section 7(1) Section 7(2) Section 7(3) Section 7(4) Unalwful Activities Section 7(5) (Prevention) Act, Section 7(6) } 1976.

Section 8(1) Section 8(2) Section 3(3) Section 8(4) Section 8(5) Section 8(6) Section 8(7) Section 8(8) Section 9, J Unlawful Activities Act, 1967, Section 10.

Unlawful Activities (Prevention) Act. 1967.

Section 11, Unlawful Activities (Prevention) Act. 1967.

Section 12(1), Unlawful Activities (Prevention) Act, 1967.

Section 12(2), Unlawful Activities (Prevention) Act, 1967.

Section 15.

Unlawful Activities, (Prevention) Act. 1967.

Section 16, Unlawful Activities (Prevention) Act. 1967.

Section 18(1), Unlawful Activities (Prevention) Act. 1967.

I Bill Section Section 57(2) Section 58 Section 59(1) Section 59(2) Section 59(3) Section 60 Section 61 Section 62 Section 63 Section 64 124 E xistfng Acr .S'ectiorz Section 18(2), Unlawful Activities (Prevention) Act, 1967.

Section 19, Unlawful Activities (Prevention) Act, 1967.

Section 21(1), Unlawful Activities (Prevention) Act, 1967.

Section 21(2), Unlawful Activities (Prevention) Act, 1967.

Section 21(3), Unlawful Activities (Prevention) Act, 1967.

Section 13(3), 13(5), Oﬂicial Secrets Act, 1923, also section "I7, Unlawful Activities (Prevention) Act, 1967.

New Section 13(4), Oﬂiciai Secrets Act, 1923.

also section 7.

Foreign Recruiting Act, 1874, also section 17, Foreign Enlishment Act, 1870 (Eng.) New Section 15, Ofﬁcial Secrets Act, 1923.

APPENDIX 2 CONSEQUENTIAL AMENDMENTS IN CENTRAL AGES

1. THE INDIAN PEN.-it Com:

1. In section 52A, the words and ﬁgure "and in section 130 in the case in which the harbour is given by the wile or husband oi" the person hsrboured" shall be omitted.

2. In section 94, for the words "offences against the Stale", the words and ﬁgures "offences against the National Security Act, 1971" shall be substi-

tuted.

II. THE CODE on CRIMINAL PROCEDURE1 I. In section 42, sub-section (I), clausr (a),«--

(i) the words and ﬁgures "ill, 121A, I22, I23, 124, 124A, 125, 126, 130" shall be omitted;

- (ii) after the Words, ﬁgures and brackets "456 to 460 (both in- clusive)" the words and ﬁgures "or under any of the Following sections of the National Security Act, 1971, namely, 3, 4, 5, 6, 8, 11, 14, 15, and 39"', shall be inserted.

2. In section 95, sub-section (1), for the words and ﬁgure "under section 124A or", the words and ﬁgures "under section 39 of the National Security Act 1971, or under" shall be substituted.

3. In section 109', sub-section (1), clause (a) for the words and ﬁgure "under section 124A or", the words and ﬁgures tinder section 39 of the National Security Act, 1971, or under" shall be substituted.

4. In section 197, caluse (a), the word and ﬁgure "Chapter VI" shall be omitted.

5. In section -446, in subsection (3), the word and ﬁgure "Chapter VI", shalt be omitted'! .

6. In the First Schedule, the entries relating to offences und er Chapters VI and VII of the Indian Penal Code shall be omitted.

1. The amendments proposed are to the sections of the Code of Criminal Procedure Bill, 1970.

2. Except section 130, all offences under Chapter VI of the Indian Penal Code as revised and inciuded in the National Security Bill are punishable with trnprisonment for seven years and more, and are therefore covered by the general ascriptinn in section 445(3) of the Criminal Procedure Code Bill.

125

.126

7. In the Second Schedule. in Form No. 31, Part I,-----

(I) in item No. (I), for the words and ﬁgures "und;r section 12} of the Indian Penal Code" the words and figures "under section 3 nf the National Security Act, 197]" shall be substituted;

(ii) in item No. (2), for the words and ﬁgure "under section 124 of the Indian Penal Code" the words and figures "_'undt:r section 8 of the National Secruity Act, 1971" shall be substituted.

111. THE CRIMINAL LAW AME!\'DMEl\T Act, 1961 In section 4, sub--secti0n (I). for the words, ﬁgures and brackets "under section 2 or sub-section (2) of section 3", the words, ﬁgures and brackets "under section 28 of the National Security Act, 1971 or sub-section (2) of section 3 of this Act" shall be substituted.

MG[PRRND--34 M Of Lawﬂl-~--f-lee. ll (N.S.)--21-2-?'2----Z,000.

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