This article has been written by Samiksha Madan pursuing a Diploma in International Contract Negotiation, Drafting and Enforcement from LawSikho.

This article has been edited and published by Shashwat Kaushik.

Introduction

The word “Assembly” means “an assembly of more than one person in one place for a common cause or purpose”. For example, children gather for morning prayer, students gather for a seminar hall lecture, office workers gather for a meeting, people gather for last rites, etc. But it is not necessary for every meeting to be legal in the eyes of the law; sometimes a meeting is also held to carry out an illegal activity, which is an act punishable under the Code of Criminal Procedure. The more is not always the merrier!

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Right to assemble under Indian Constitution

The Constitution of India guarantees the right to assemble peacefully and without arms under Article 19(1)(b). However, this right is not absolute and can be reasonably restricted in certain situations.

The framers of the Constitution recognised that the right to assemble is essential for a democratic society. It allows citizens to come together to express their views, protest against government policies, and hold their elected representatives accountable. However, they also recognised that this right could be abused if not properly regulated.

Article 19(2) of the Constitution allows the government to impose reasonable restrictions on the right to assemble in the interests of national security, public order, and public health. These restrictions can include limits on the number of people who can gather, the time and place of assembly, and the use of weapons or other dangerous objects.

The Supreme Court of India has interpreted Article 19(2) to mean that the government can only impose restrictions on the right to assemble if there is a clear and present danger to national security or public order.

In recent years, there have been a number of cases involving the right to assemble. In one case, the Supreme Court upheld a government ban on a protest march that was scheduled to take place near the Parliament building. The Court found that the march would have posed a clear and present danger to national security.

The right to assemble is a fundamental right that is essential for a democratic society. However, this right can be reasonably restricted in certain situations to protect national security, public order, and public health. The Supreme Court of India has played an important role in interpreting Article 19(2) and ensuring that the government’s restrictions on the right to assemble are justified and proportionate.

There is freedom to organise public meetings and gatherings, to organise hunger strikes, but it must be peaceful and without weapons. The sole purpose should be to educate the public and spread ideas.

Article 19 of the Indian Constitution guarantees six fundamental rights to all citizens, which are essential for the development of a free and democratic society. These rights are:

  1. Freedom of speech and expression: This right enables individuals to express their thoughts, ideas, and opinions freely, without fear of censorship or retribution. It includes the freedom to express oneself through various mediums, such as speech, writing, art, and music.
  2. Assemble peaceably and without arms: This right allows individuals to gather and assemble peacefully for various purposes, such as political rallies, religious gatherings, or social events. It promotes the exchange of ideas, fosters community spirit, and enables collective action.
  3. Form associations and unions: This right allows individuals to form associations, clubs, societies, and unions to pursue common interests. It enables people to organisess themselves for various purposes, including social, cultural, political, and trade union activities.
  4. Move freely throughout the territory of India: This right allows individuals to move freely within the borders of India without any restrictions. It promotes national integration, facilitates trade and commerce, and enables people to explore different parts of the country.
  5. Reside and settle in any part of the territory of India: This right allows individuals to choose their place of residence and settle in any part of India. It promotes social and economic mobility, enables access to education, employment, and healthcare, and fosters a sense of belonging and inclusiveness.
  6. Practice any profession or carry on any occupation, trade, or business: This right allows individuals to choose their profession or occupation freely and engage in any lawful trade, business, or activity. It promotes economic freedom, encourages entrepreneurship, and enables individuals to contribute to the growth and prosperity of the nation.

These six rights enshrined in Article 19 are crucial for the preservation of individual liberty, the promotion of democratic values, and the overall development of a just and equitable society.

Earlier, Article 19 laid down seven rights. But after the 44th Amendment Act of 1978, the right to acquire, hold and dispose of property was changed from a fundamental right and placed under Article 300A as a constitutional right.

In the landmark case of Himmat Lal vs. Police Commissioner, Bombay 1972, the Supreme Court of India delivered a significant judgement that reaffirmed the fundamental right of citizens to assemble peacefully. The case challenged a provision that granted the Commissioner of Police sweeping powers to prohibit all public meetings and processions.

The Court held that this provision violated the freedom of assembly guaranteed under Article 19(1)(b) of the Indian Constitution. The judgement emphasised that the state has a legitimate interest in maintaining public order and preventing unlawful activities. However, it cannot use this interest as a pretext to curtail the fundamental rights of citizens.

The Court held that the state can only enact laws that favour the freedom of assembly of citizens. It can impose reasonable restrictions in the name of public order, but it cannot prohibit all assemblies altogether. The Court recognised that public meetings and processions play a vital role in a democratic society, as they allow citizens to express their views, protest against injustices, and hold their leaders accountable.

The Court’s decision in Himmat Lal vs. Police Commissioner has been cited as a precedent in subsequent cases involving the freedom of assembly. It has helped to ensure that the state cannot arbitrarily restrict the right of citizens to gather peacefully and express their opinions.

The judgement also highlights the importance of judicial review in safeguarding fundamental rights. It demonstrates that the judiciary can act as a check on the powers of the state and protect the rights of individuals against excessive government interference.

Unlawful assembly under IPC

Chapter VIII of Indian Penal Code 1860 deals with offences against public peace, Section 141 of Indian Penal Code 1860 defines unlawful assembly – an assembly of five or more persons is intended to be an “unlawful assembly” if the joint purpose of the persons forming the assembly is:

  • Intimidation is the use of criminal force to intimidate the government or any public official.
  • Resist the law or any legal process.
  • Commit a felony, a criminal misdemeanour or other crime.
  • Take possession of any property by force or prevent anyone from using it.
  • To force someone to act against their legal rights.

The important foundations of an illegal association are:

  • The number of people forming it, i.e., 5.
  • Their common object.
  • The common purpose must be one of the five unlawful acts mentioned in Section 141 above.

Section 149 of the Indian Penal Code, 1860, addresses the criminal liability of members of an unlawful assembly. It establishes that each member of such an assembly is held accountable for any offense committed in furtherance of the common purpose of the assembly. However, mere presence at the scene of an unlawful gathering does not automatically make an individual liable for any wrongdoing.

The crux of Section 149 lies in determining the existence of a “common purpose” among the members of the unlawful assembly. This common purpose serves as the basis for attributing guilt to each individual. The law infers the common purpose from the actions and language of all the members involved.

In the landmark case of Gangadhar Behera and others vs. State of Orissa (2002), the Supreme Court of India shed light on the interpretation of Section 149. The Court emphasised that a mere physical presence within an unlawful assembly, without active participation or shared criminal intent, is insufficient to establish guilt.

The Court held that to establish liability under Section 149, the prosecution must demonstrate that each member had knowledge of the common purpose and acted in furtherance of that purpose. This requires an examination of the specific acts and statements of each member to ascertain their individual involvement and intent.

The implications of Section 149 extend beyond individual culpability. It serves as a deterrent against unlawful assemblies and encourages individuals to refrain from participating in activities that may lead to criminal consequences. By holding each member accountable for the actions of the group, the law aims to maintain public order and prevent the escalation of violence or disorder.

In summary, Section 149 of the Indian Penal Code, 1860, establishes the principle of shared responsibility among members of an unlawful assembly. It emphasises the need to prove a common purpose among the participants and requires the prosecution to demonstrate the individual involvement and intent of each member. By doing so, the law aims to ensure that only those who actively contribute to the criminal objective of the assembly are held accountable for their actions.

Illustration: A, B, C, D and E decided to rob a bank together; they also had guns, with the intention of killing people who came between them. In this case, even if A and B were only involved in the planning and not the murder, they would be held responsible as if they were killing people.

This section deals with two main parts:

  1. Offence committed by a member of an unlawful assembly of five or more members.
  2. The offence must be committed against a common purpose according to Section 141 of the Criminal Code, knowing its consequences.

It is not essential that the unlawful assembly agree beforehand to be prosecuted after the offence, as was the case in Sanjeev Kumar Gupta vs. State of Uttar Pradesh, 2015.

It is not necessary to prove which member of the illegal congregation committed the act; mere presence can increase the criminal liability, as stated in State of Uttar Pradesh vs. Dan Singh (1997).

Punishments under Indian Penal Code

Section 143 of the Indian Penal Code, 1860 specifies that if a person knowingly joins a group knowing that it is unlawful, he shall be punished with imprisonment for a term which may extend to 6 months, with a fine, or with both.

Section 144 of the Indian Penal Code, 1860 defines an unlawful assembly as anyone armed with deadly weapons capable of causing death and is punishable with imprisonment for a term which may extend to two years, fine, or both.

Section 145 of the Indian Penal Code, 1860 provides that a person who willfully remains in a common unlawful union after being ordered by law to separate shall be punished with imprisonment for a term which may extend to two years or with fine, or both.

Unlawful Assembly under CrPC

The Code of Criminal Procedure (CRPC) lays down the procedure for investigation of crimes, arrest of suspects, collection of evidence, determination of guilt or innocence of the accused and punishment of the guilty. It came into force in 1973 and came into force on 1 April 1974. It will be replaced by the Bharatiye Nagarik Suraksha Sanhita (BNSS) effective 1 July 2024, repealing nine sections of the existing CRPC and making amendments to 160 sections. The BNSS also carries out a time-bound investigation, trial and adjudication within 30 days of the completion of charges.

The prevalence of such unlawful assemblies, as the title of this article suggests, is mentioned and explained in Chapter X: Maintenance of Public Order and Peace under sections 129, 130, 131 and 132 of the Criminal Procedure Code 1973. Part A deals with unlawful assemblies.

By Civil Power: CrPC Section 129(1) Any Judge or Chief Officer of a police station or in his absence any officer other than the rank of Sub-Inspector may order the dispersal of any unlawful assembly which may disturb the public. peace

Disobeying the order and persisting in unlawful assembly are punishable with imprisonment which may extend to two years or with fine or with both as mentioned in Section 145 of the Indian Penal Code, 1860.

(2) if such assembly does not disperse after receiving the order and shows that it does not wish to remain, the magistrate or police officer referred to in subsection (1) may by this power disperse:

  • Any male person who is not an authorised person
  • Can arrest and imprison any person involved in an unlawful assembly

The Karam Singh vs. Hardayal Singh case has three conditions:

  • Unlawful assembly of 5 or more persons for violence or disturbing public peace and order
  • The people must be given an order and notified of their assembly
  • The assembly refused to disperse

Disturbing the order and being in company, according to Section 151 of the Penal Code 1860, is punishable by unlawful assembly after an order to break up.

The police cannot start shooting without getting any prior orders. In this case, the state must compensate the meeting and all its victims for shooting without prior permission.

Section 129 deals with two types of assembly:

  • Unlawful assembly under Indian Penal Code Chapter VIII, Section 141 of 1860.
  • Assembly of 5 or more persons with intent to commit violence or disturb public peace.

Armed use of forces: CrPC Section 130(1) the attending chief executive judge can issue an order for the dispersal of an illegal assembly by the armed forces if it cannot be dealt with by civilian force and it is necessary to ensure public safety.

(2) A magistrate may, with the support of a group of persons belonging to the armed forces (army, air force and navy), issue an order for the arrest and detention of persons who have participated in an illegal assembly.

(3) every officer of the armed forces shall, in breaking up a congregation and in arresting and detaining such persons, use as much force as is necessary and cause as little injury as possible to any person or property.

Certain officers of the armed forces, in the absence of competent authority: CrPC Section 131 

Where communication with the executive magistrate is not possible, although the unlawful assembly poses a threat to public safety, any officer or officer of the Armed Forces directs the assembly and separates it with the assistance of armed officers under his command, arrest and detention. However, if he can speak to the magistrate while performing, he must do so and follow instructions, whether or not he is allowed to continue performing.

Section 132 of the IPC talks about immunity from prosecution for acts committed under the preceding sections, which means it protects people from prosecution for acts committed under sections 129, 130 and 131 above.

No person shall be prosecuted in a criminal court for an offence under section 129, 130 or 131, except

  • with the permission of the Central Government if that person is a soldier or officer;
  • with the consent of the State Government in other cases;

2. [a] no executive magistrate or police officer acting in good faith under any of the said sections;

[b] any person failing to do anything in good faith under section 129 or section 130 of expropriation;

[c] any officer of the armed forces acting in good faith under article 131;

[d] no member of the armed forces does any act in compliance with any order which he has been required to obey;

shall be deemed to have committed an offence.

In this section and in the following sections of this chapter:

[a] the expression “armed forces” means the army, navy and air forces acting as land forces and includes any other armed forces of the Union so acting;

[b] “officer” means, in relation to the armed forces, a person appointed, published or serving as an officer of the armed forces, including a non-commissioned officer, officer, senior officer, non-commissioned officer and clerk;

[c] member – a person in the armed forces who is not an officer. 

Prevention given under CrPC

Part C of Chapter X deals with cases of urgent disturbance or perceived danger. Section 144 of the CrPC empowers the Executive Judge to authorise any state or territory to issue an order prohibiting the assembly of four or more persons in an area We usually hear from Gautam Buddh Nagar, Noida, UP. By law, any member of such an “unlawful assembly” can be tried for rioting.

Conclusion

The dispersal of unlawful assemblies is a complex issue that balances the right to assemble with public order. Authorities must follow strict legal procedures to break up such meetings if necessary. A number of options can also be used to deal with an illegal assembly in order to maintain public order and minimise the risk of harm to members of the assembly as well as the public.

References

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