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Dispersal of unlawful assembly by civil force : a human rights issue

September 10, 2023

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This article was written by Asama Biswas, pursuing a Diploma in Domestic & International Commercial Arbitration from LawSikho and edited by Koushik Chittella.

It has been published by Rachit Garg.

Table of Contents

Introduction

Dispersal means spreading or scattering any meeting of a group of people or mass by way of force. An unlawful assembly refers to any assembly that is not lawful in nature. Civil force simply means any force, such as the police, but it does not include the military or the armed forces. Human rights are very basic, including the right to live peacefully. Most of the fundamental rights guaranteed under the Indian Constitution are similar to human rights. This topic can be understood by studying these concepts:

Unlawful assembly
Dispersal of assembly by civil force,
Human rights in connection with assembly,
Prevention of unlawful assembly,
Violation of human rights.

What is an unlawful assembly

An assembly, whether lawful or unlawful, is a question of law. The provisions related to “Unlawful Assembly” are available under Section 141 of the Indian Penal Code, 1860. It can be said that an assembly of five or more persons is designated as an Unlawful assembly only if the common intention or object of the assembly is to commit a crime by any means. Section 141 also states that an assembly may be peaceful at the beginning, but subsequently it could be unlawful, and that would also be an unlawful assembly under this Section.

To attract Section 141 of the IPC, a few conditions given under the Section must be satisfied. They are:

The number of individuals assembled must be at least five or more.
There must be a common object/intention that is unlawful.
All of the persons assembled must be aware of the unlawful common object.
The assembly is to overawe by criminal force, or show of criminal force, obstructing any lawful duty of a public servant.
Resisting the execution of any law or legal process.
Commission of mischief, criminal trespass, or any other offence.
By means of criminal force, not to deprive any person’s enjoyment of rights.
By means of criminal force, not to enforce any rights or supposed rights.
To compel anybody to do what he/she is not legally bound to do.

All offences referred to in any of the provisions of the code for which punishment is provided would automatically fall within the expression “other offence,” which has been used in Section 141.

Dispersal of assembly by the use of civil force

Under Section 129(1) of the Code of Criminal Procedure of 1973, any executive magistrate or officer in charge of a police station, or in the absence of such an officer, any police officer above the rank of sub-inspector has the power to disperse any unlawful assembly. Such an executive magistrate or police officer may apply force to disperse the assembly if it doesn’t disperse ordinarily. But he may not require the assistance of an officer or member of the armed forces under this Section. The executive magistrate or police officer has further power to arrest and confine the persons who formed the assembly. The punishment for this, can only be in accordance with the law. Whereas, Section 130 CrPC provides for the use of armed forces to disperse unlawful assembly.

Re-Ramlila Maidan Incident vs. Home Secretary And Ors. (2012)

Facts of the case

The facts of the instant case were that Ramdev Baba, along with his followers, agitated against corruption and stated that the then ruling Government made efforts to bring black money illegally parked by tax evaders in foreign bank accounts back into the country. The Delhi Police claimed that Baba Ramdev instigated his followers to resort to violence, compelling them to take action, and had withdrawn permission to set up a camp. Later, the police informed Ramdev that the permission to set up a camp had been withdrawn and that it would lead to detention. At around 12.30 a.m., while everyone was sleeping, a large number of police and armed force personnel reached the location of the assembly and committed violence against them, mentioning that it was an unlawful assembly under Section 129 of the Indian Penal Code, 1860. The Supreme Court took suo moto action against this incident.

Issue involved in the case

Whether the assembly is an unlawful assembly under the provisions of Section 129 of the IPC?

Judgement of the Court

The Supreme Court ruled that the use of violence was not justified as the protestors were sleeping and the assembly could not have been qualified as an unlawful assembly. Hence, it does not fall under the ambit of Section 129.

Human rights in connection with assembly

Article 19(1)(b) of the Indian Constitution provides the right to assemble peaceably, without arms. This Article will protect the rights of individuals assembling peacefully only if it is without arms/weapons. Article 21 provides for the protection of life and personal liberty and states that no person shall be deprived of his life or his personal liberty except according to a procedure established by law. Under the provisions of the Constitution, everyone is entitled to all the rights and freedoms without any distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional, or international status of the country or territory to which a person belongs, whether it be independent, trusting, non-self governing or under any other limitation of sovereignty.

Prevention of unlawful assembly

Section 144 of the CrPC deals with urgent cases of nuisance and apprehended danger. The Magistrate, empowered by the state government on this behalf, would proceed and issue an order in writing stating the material facts of the case and under the manner provided in Section 134 of the CrPC, to prevent apprehended dangers such as unlawful assembly, a disturbance of the public tranquillity, a riot, an affray, etc. in an emergency. The order so issued shall be valid for two months, unless the state government notifies that the order of the Magistrate shall be valid for a period not exceeding six months. This notification can be altered or rescinded by the state government on its own or on the application of the aggrieved person.

Dharam Pal Singh vs. State of Uttar Pradesh (1975)

In the instant case, the Supreme Court held that when only five persons have been named and charged for Unlawful assembly under Section 129 of the IPC, if one or more of them are acquitted (set free), the remaining accused cannot be convicted for unlawful assembly as the number of persons would be less than five. The Court also stated that if it is proved that some other persons were also present but could not be identified, then the other accused can be convicted of unlawful assembly.

Violation of human rights

Every citizen of India has both fundamental rights and human rights. These rights include the right to assemble peacefully, right to form association, right to demonstrate peacefully, etc. As India is a Democratic nation, it is important to protect taking part in strikes, rallies, and events of protest, raising the voice of the deprived class of society, as they are granted by our democracy.

In a Democratic country like India, the political party gaining the confidence of the majority forms the Government. So while the Government may, in the ordinary course of politics, suppress the critical voices of innocent people, it can be prevented by the above provisions. Sometimes, even the inactivity of the civil force helps the commission of unlawful assembly. Hostile and frivolous application of Section 144 of the CrPC violates the right to assemble peacefully. Therefore, it can be said that in some cases, emergency, lockdown, and even hyperactivity of civil force violate the most essential right of life: the right to assemble peacefully.

Relevant judicial precedents

Mazdoor Kisan Shakti Sanghatan vs. Union of India (2018)

In this case, the Apex Court held that the right to protest and the right to assemble strengthen democracy, but that these rights are not of unlimited scope. The State could make only reasonable restrictions in the interest of public order and could make regulations in aid of a peaceful assembly. Quoting the Apex Court “An unarmed, peaceful protest procession in the land of “Salt Satyagraha”, fast-unto-death and “do or die” is no jural anathema”.

Himant Lal K. Shah vs. Commissioner of Police (1972)

In this case, it is an unconditional right to hold a public meeting at every public place, much less on a public thoroughfare or street in the country, as a necessary incident of the fundamental rights of either free speech or assembly.

Conclusion

Article 19(1)(b) of the Indian Constitution guarantees the right to assemble peacefully. It can be said that Article 21 is a booster in this context and that every right is subject to some reasonable restrictions, whether fundamental or ordinary. Enjoyment of one’s rights must not violate the rights of others. Restrictions on unlawful assembly are in the interests of the common man. Every law abiding citizen should avoid unlawful assemblies. At the same time, the Government should not employ its power to disperse lawful assemblies and impose criminal liabilities on the members of any assembly. In a democratic country like India, people are becoming more vigilant to reduce the abuse of power on the part of the Government.

References

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Dispersal of unlawful assembly by civil force : a human rights issue

Introduction

What is an unlawful assembly

Dispersal of assembly by the use of civil force