Dispersal of an Unlawful Assembly

Two details are worth marking. First, the second limb means a command is not always necessary: an assembly that plainly means not to go can be dispersed at once. Second, the persons whose help may be required are civilians, and the sub-section expressly excludes members of the armed forces acting as such, because their use is the subject of the next section.

Section 149: the armed forces, on a Magistrate's requisition

Sub-section (1). If such an assembly cannot otherwise be dispersed, and it is necessary for the public security that it should be, the District Magistrate, or any other Executive Magistrate authorised by him, who is present, may cause it to be dispersed by the armed forces.

Three conditions, all of which must be satisfied: dispersal by other means is impossible; public security requires dispersal; and the Magistrate is present.

Sub-section (2). Such a Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the forces under his command, and to arrest and confine such persons as the Magistrate directs or as is necessary.

Sub-section (3), the restraint. Every such officer shall obey the requisition in such manner as he thinks fit, but in doing so shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

Sub-section (3) is the balance the whole section turns on: the decision to use the armed forces is the Magistrate's, but the manner is the officer's, and the officer is bound to minimum force.

Section 150: when no Magistrate can be reached

Where the public security is manifestly endangered by such an assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse the assembly with the forces under his command, and may arrest and confine persons forming part of it.

But: if, while he is acting, it becomes practicable to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the Magistrate's instructions as to whether to continue.

So section 150 is not an independent military power. It is a temporary substitute for the Magistrate, and it lapses the moment the Magistrate can be reached.

Section 151: protection

Sub-section (1), sanction for prosecution. No prosecution for any act purporting to be done under section 148, 149 or 150 may be instituted in any Criminal Court except:

(a) with the sanction of the Central Government, where the person is an officer or member of the armed forces; (b) with the sanction of the State Government, in any other case.

Sub-section (2), good faith. None of the following is deemed to have committed an offence:

(a) an Executive Magistrate or police officer acting under those sections in good faith; (b) a person doing an act in good faith in compliance with a requisition under section 148 or 149; (c) an officer of the armed forces acting under section 150 in good faith; (d) a member of the armed forces doing an act in obedience to an order which he was bound to obey.

Note that limb (d) does not require good faith in terms. What it requires is that the order was one he was bound to obey.

Sub-section (3), the definitions. "Armed forces" means the army, naval and air forces operating as land forces, and includes any other armed forces of the Union so operating. "Officer", in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer, and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer. "Member" means a person in the armed forces other than an officer.

The definition of "officer" is wider than it looks and is worth reading twice, because it decides which Government's sanction is needed under sub-section (1)(a).

A worked example

Two hundred people gather outside a mill at Bhiwandi after a dismissal. Stones are thrown.

Who may act first? The officer in charge of the police station may command them to disperse, section 148(1). So may any Executive Magistrate. In the absence of the station house officer, any police officer not below sub-inspector may.

They stay. He may disperse them by force, and may require the assistance of civilians, and may arrest and confine members of the assembly, section 148(2). He may not requisition soldiers under this section: the sub-section excludes officers and members of the armed forces acting as such.

Force is not enough and the crowd is now a danger to the town. The District Magistrate, or an Executive Magistrate he has authorised, being present, may cause the assembly to be dispersed by the armed forces, section 149(1), and may require the officer in command to do it and to arrest such persons as he directs, section 149(2). The officer must use as little force and do as little injury as is consistent with the task, section 149(3).

Change the facts. The riot begins at night in a remote place. Public security is manifestly endangered and no Executive Magistrate can be communicated with. A gazetted officer of the armed forces stationed nearby may act on his own under section 150. As soon as he can reach a Magistrate he must do so and must then follow the Magistrate's instructions.

Afterwards a man injured in the dispersal wants to prosecute the sub-inspector. He cannot institute it without the sanction of the State Government, section 151(1)(b). If the proposed accused were a soldier, the sanction would be the Central Government's, section 151(1)(a). And if the sub-inspector acted in good faith under section 148, he is not deemed to have committed an offence at all, section 151(2)(a).

Distinctions

What this does NOT mean

Section 148 is not confined to an unlawful assembly. It also covers any assembly of five or more persons likely to cause a disturbance of the public peace.

A command to disperse is not always a precondition to force. Where the assembly conducts itself so as to show a determination not to disperse, force may be used without one.

Section 150 is not a standing power of the armed forces. It operates only where no Executive Magistrate can be communicated with, and it yields the moment one can be.

And section 151(2) is not an immunity for anything done during a dispersal. It protects acts done in good faith under the sections, and, for a member of the armed forces, acts done in obedience to an order he was bound to obey.

Quick revision

• Section 148(1): an Executive Magistrate, an officer in charge of a police station, or, in his absence, a police officer not below sub-inspector, may command an unlawful assembly or an assembly of five or more likely to disturb the public peace to disperse; the members are then bound to disperse.
• Section 148(2): force on non-dispersal or on a shown determination not to disperse; civilians may be required to assist; the armed forces acting as such may not.
• Section 149: the District Magistrate or an authorised Executive Magistrate who is present may use the armed forces where the assembly cannot otherwise be dispersed and public security requires it; the officer obeys in such manner as he thinks fit but with as little force and injury as is consistent with the task.
• Section 150: a commissioned or gazetted officer may act where security is manifestly endangered and no Executive Magistrate can be communicated with, and must revert to the Magistrate's instructions as soon as it is practicable.
• Section 151(1): prosecution only with the Central Government's sanction for an officer or member of the armed forces, and the State Government's in any other case.
• Section 151(2): good faith protects the Magistrate, the police officer, the civilian complying with a requisition and the armed forces officer; a member of the armed forces is protected for obeying an order he was bound to obey.
• Section 151(3) defines armed forces, officer and member, and "officer" includes junior commissioned, warrant, petty, non-commissioned and non-gazetted officers.

Test yourself

1. Which assemblies may be commanded to disperse under section 148? Any unlawful assembly, and any assembly of five or more persons likely to cause a disturbance of the public peace.

2. Who may command dispersal where the officer in charge of the police station is absent? Any police officer not below the rank of sub-inspector, section 148(1). An Executive Magistrate may in any event.

3. Must a command always precede the use of force? No. Section 148(2) also allows force where the assembly, without being commanded, conducts itself in a manner showing a determination not to disperse.

4. Who may call in the armed forces, and on what conditions? The District Magistrate, or any other Executive Magistrate authorised by him who is present, where the assembly cannot otherwise be dispersed and it is necessary for public security, section 149(1).

5. What must an armed forces officer acting under section 150 do if he can reach a Magistrate? He shall communicate with him and shall thenceforward obey his instructions as to whether to continue.

6. Whose sanction is needed to prosecute a police officer for an act purporting to be done under section 148? The State Government's, section 151(1)(b).

7. Is a soldier who obeys an order during a dispersal protected? Yes. Under section 151(2)(d) a member of the armed forces doing an act in obedience to an order he was bound to obey is not deemed to have committed an offence.