Report No. 43

5.4. Recruitment and enlistment of foreign States.-

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 Act1 and partly by a British Statute2. 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 a foreign State at peace with India, 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.

1. The Foreign Recruiting Act, 1874.

2. The Foreign Enlistment Act, 1870 (33 and 14 Vic., C. 90).

5.5. Recruitment for an enemy country (at least where the recruitment is for military or semi-military service) is treason in English law1. 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.

1. R. v. Lynch, (1903) 1 KB 444; Russel on Crime, (1964), Vol. 2, p. 1545.

5.6. Recruitment 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 says1

"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 indictable at common Law2, and where the foreign State is at war with Great Britain, is treason3".

In India, such recruitment can be regulated under the Foreign Recruiting Act, 1874.

1. Russel on Crime, (1964), Vol. 2, p. 1544.

2. 1 East PC 81: 4BI com 122.

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

5.7. Recruitment for a country friendly to an enemy country may or may not amount to treason in England or to abetment of 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 offence at common law. Russell says1, "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 Crown2. This category is now regulated by the (U.K.) Foreign Enlistment Act, 1870.

1. Russel on Crime, (1964), Vol. 2, p. 1544.

2. See also para. 5.12, below.

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