The Law in the Crowd

Public tranquility is the bedrock of a stable, secure and inclusive society, one where individuals and communities can coexist without fear, disruption or violence. The Bharatiya Nyaya Sanhita, 2023 (BNS) modernizes India’s legal framework by consolidating and reframing historic provisions that address offences disrupting public order, ranging from unlawful assemblies and riots to affrays, provocation and enmity based on communal identities. This legislation balances clarity and deterrence with a nuanced understanding of intent, public interest and constitutional values, drawing upon precedent setting judgments that inform how common object, culpability and the boundaries of free expression are adjudicated.

 When is an assembly considered an unlawful assembly?

An assembly of five or more persons is considered an unlawful assembly if the common object of the persons composing it is:

• To overawe by criminal force, or show of criminal force, the Central Government or any State Government or Parliament or the Legislature of any State or any public servant in the exercise of lawful power;
• To resist the execution of any law or legal process;
• To commit any mischief, criminal trespass, or other offence;
• To use criminal force, or show of criminal force, to any person to obtain possession of property, deprive a person of a right of way, or of the use of water or other incorporeal right or to enforce any right or supposed right;
• To compel any person by means of criminal force, or show of criminal force, to do what he is not legally bound to do or to omit to do what he is legally entitled to do.

Can an assembly that was lawful initially become unlawful later?

Yes, an assembly that was not unlawful when it assembled may subsequently become an unlawful assembly.

 What are the ingredients of unlawful assembly as explained by courts?

The key ingredients are:

• The number of persons must be five or more.
• There must be a common object.
• The common object can be formed on the spur of the moment and does not require prior deliberations. Courts determine common object based on the conduct of members before, during, and after the incident as well as the arms carried by them. (Manjit Singh v. State of Punjab)

 Is a passive onlooker considered part of an unlawful assembly?

No, a passive onlooker who does not share the common object of the assembly is not considered a member of an unlawful assembly. (Taijuddin v. State of Assam)

 What is the punishment for being a member of an unlawful assembly?

Anyone who is aware of facts making an assembly unlawful and intentionally joins or continues in it is punished with imprisonment up to six months, or with fine or with both.

 What is the punishment if someone continues in an unlawful assembly after being commanded to disperse?

Anyone who joins or continues in an unlawful assembly knowing that it has been lawfully commanded to disperse is punishable with imprisonment up to two years, or with fine or with both.

 What is the punishment for being armed while being a member of an unlawful assembly?

If someone is armed with a deadly weapon or any object likely to cause death and is a member of an unlawful assembly, they are punishable with imprisonment up to two years or with fine or with both.

 What is the punishment for joining a group likely to disturb public peace after being ordered to disperse?

Any person who knowingly joins or continues in an assembly of five or more persons likely to cause a disturbance of the public peace after being commanded to disperse is punishable with imprisonment up to six months, or with fine or with both.

What is the punishment for hiring or promoting others to join an unlawful assembly?

Anyone who hires, engages, employs, promotes or connives at the hiring of a person to join an unlawful assembly is punishable as a member of that assembly and for any offence committed by such member as if he had committed it himself.

 What is the punishment for harbouring persons hired to join an unlawful assembly?

Anyone who harbours, receives, or assembles in any premises under his control persons knowing they have been or are about to be hired to join an unlawful assembly is punishable with imprisonment up to six months, or with fine or with both.

 What is the punishment for being hired to do any act related to an unlawful assembly?

Anyone who is hired, engages, offers, or attempts to be hired to do or assist in doing any act specified as the object of an unlawful assembly is punishable with imprisonment up to six months, or with fine or with both.

 What is the punishment for going armed after being hired for such acts?

If a person hired for such purposes goes armed with a deadly weapon or anything likely to cause death, they are punishable with imprisonment up to two years or with fine or with both.

 When is every member of an unlawful assembly guilty of an offence?

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or if the members knew such offence was likely, every person present at the time as a member is guilty of that offence.

 Can mere presence in an unlawful assembly make a person guilty?

No, unless the person actively participates with the necessary criminal intention or shares the common object. (Vijay Pandurang Thakre v. State of Maharashtra)

 What is essential to convict someone under the concept of common object?

It is essential to establish that a common object existed. (Dauwalal v. State of M.P.)

 What is rioting?

When force or violence is used by an unlawful assembly or any member thereof in prosecution of its common object, every member is guilty of rioting.

 What is the punishment for rioting?

Whoever is guilty of rioting is punishable with imprisonment up to two years, or with fine or with both.

 What is the punishment if rioting is committed while armed?

If the person is armed with a deadly weapon or anything likely to cause death while rioting, they are punishable with imprisonment up to five years, or with fine, or with both.

 Is it necessary for every member to be violent for a charge of rioting?

No. Even if only one or some members use force, every member is guilty of rioting. Specific attribution of acts is not required in large assemblies. (Lakshman Singh v. State of Bihar)

 What is the punishment for wantonly giving provocation that leads to a riot?

If someone illegally provokes another intending or knowing it likely to cause rioting, and rioting does occur, they are punishable with imprisonment up to one year, or with fine or with both.

 What if rioting does not occur after such provocation?

The person is punishable with imprisonment up to six months, or with fine or with both.

 When is a landowner or occupier liable for unlawful assembly or riot on their land?

If an unlawful assembly or riot takes place and the owner or occupier, or anyone claiming interest, knowing or having reason to believe it was or might be committed, fails to notify police and fails to take steps to prevent or suppress it, they are punishable with a fine up to one thousand rupees.

 What if the riot was committed for the benefit of such person?

Then, if the person or their agent had reason to believe the riot was likely but did not use all lawful means to prevent or suppress it, they are punishable with fine.

 What about liability of agents or managers of such persons?

If the agent or manager fails to act despite having reason to believe a riot or unlawful assembly was likely, they are also punishable with fine.

 What is an affray?

An affray occurs when two or more persons, by fighting in a public place, disturb public peace.

 What is necessary for the offence of affray?

There must be actual fighting and a breach of peace. Mere quarrelling or verbal abuse is insufficient. (Korga Shetty v. State of Mysore)

 What is the punishment for affray?

It is punishable with imprisonment up to one month, or with fine up to one thousand rupees, or with both.

 What is the punishment for assaulting or obstructing a public servant suppressing a riot or affray?

Anyone who assaults, obstructs, or uses criminal force on a public servant in discharge of their duty while dispersing an unlawful assembly or suppressing a riot or affray is punishable with imprisonment up to three years, or with fine not less than twenty-five thousand rupees, or with both.

 What if someone only threatens or attempts to assault or obstruct?

They are punishable with imprisonment up to one year, or with fine, or with both.

 What is the punishment for promoting enmity between different groups?

Whoever, by speech, writing, signs, or any other form, promotes enmity, hatred, or ill-will between different groups based on religion, race, place of birth, residence, language, caste, community, etc. or disturbs public tranquillity, is punishable with imprisonment up to three years, or with fine, or with both.

 What if such act is done in a place of worship or during religious ceremonies?

The punishment is increased to imprisonment up to five years and fine.

What qualifies as hate speech or controversial speech?

The content must go beyond thought or preparation. The intent should be close to the actual offence, and even if public disorder doesn’t occur, it may still qualify if it is reasonably likely. (Amish Devgan v. Union of India)

 What does public tranquillity mean in legal terms?

It is interpreted in a restricted sense, synonymous with public order and safety but not merely law and order. Public order includes local acts disturbing peace and applies equally to majority and minority groups. (Amish Devgan v. Union of India)

 What is the punishment for assertions prejudicial to national integration?

Anyone who:

• Imputes that a class of persons cannot be loyal to the Constitution due to their religion, caste, etc.;
• Asserts that such a class should be denied their rights;
• Makes or publishes content causing disharmony or hatred; or
• Publishes false or misleading information affecting national unity or security,
  is punishable with imprisonment up to three years, or with fine, or with both.

 What if such acts are committed in a place of worship?

The person is punishable with imprisonment up to five years and fine.

Therefore, the BNS offers a refined and comprehensive legal instrument for preserving public tranquility. By clearly outlining offences like unlawful assembly, rioting, affray and enmity and by incorporating important judicial interpretations, the law strengthens our country’s ability to prevent, punish and deter threats to peace. The BNS also reinforces democratic values by demanding individual accountability, moving beyond collective blame to focus on intent, participation and impact. This balanced approach ensures not only the protection of public peace but also the preservation of rights and justice in a diverse society.

Muneeb Rashid Malik is an Advocate. He tweets @muneebmalikrash.