Offences Against Public Tranquillity Under the Bharatiya Nyaya Sanhita

The Explanation is important and often forgotten: an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. A lawful procession can turn into an unlawful assembly without anybody arriving or leaving.

The offences in the same section. Being a member of an unlawful assembly knowing the facts that make it one, six months, fine, or both, by sub-section (2). Joining or continuing after it has been lawfully commanded to disperse, two years, by sub-section (3). Being a member while armed with a deadly weapon, two years, by sub-section (4). Knowingly joining or continuing in any assembly of five or more likely to cause a disturbance of the public peace after it has been lawfully commanded to disperse, six months, by sub-section (5). Hiring or employing persons to join an unlawful assembly, punishable as a member, by sub-section (6). Harbouring such persons, six months, by sub-section (7). Being engaged or hired, six months, by sub-section (8), and going armed when so hired, two years, by sub-section (9).

Sub-sections (3) and (5) are the criminal counterpart of section 148 of the procedural Sanhita. The Magistrate commands the assembly to disperse; if it does not, the members commit an offence at that moment.

Old numbering. Section 189 corresponds to sections 141, 142, 143, 144, 145, 150, 157 and 158 of the repealed Penal Code, consolidated into one section.

Section 190: constructive liability

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence is a member of the same assembly is guilty of that offence.

This is the provision that makes a crowd offence work, and it is the reason a person who threw no stone can be convicted of the offence the crowd committed. It corresponds to section 149 of the repealed Code, and its two limbs, the common object and what the members knew to be likely, are unchanged.

Section 191: rioting

Whenever force or violence is used by an unlawful assembly, or by any member of it, in prosecution of the common object of the assembly, every member of that assembly is guilty of the offence of rioting.

The distinction between an unlawful assembly and a riot is therefore a single element: force or violence used in prosecution of the common object. Until that happens there is an unlawful assembly; from that moment there is a riot. Section 191 also provides an aggravated offence where the rioter is armed with a deadly weapon.

Old numbering. Sections 146, 147 and 148 of the repealed Code.

Sections 193 to 195

Section 193 places a liability on the owner or occupier of land on which an unlawful assembly or riot takes place, and on the person having an interest in it, in defined circumstances.

Section 194 is affray: when two or more persons, by fighting in a public place, disturb the public peace, they are said to commit an affray. The distinguishing features are that it is a fight, that it is in a public place, and that the public peace is disturbed. Two people are enough, where an unlawful assembly needs five.

Section 195 punishes assaulting or obstructing a public servant, or using criminal force on him, when suppressing a riot or an affray.

Section 196: promoting enmity between groups

This is the provision that does the most work in a communal disturbance, and it corresponds to section 153A of the repealed Code.

It punishes, in outline, promoting or attempting to promote, on grounds of religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities; committing any act prejudicial to the maintenance of harmony between such groups which disturbs or is likely to disturb the public tranquillity; and organising or participating in any exercise with the intention that participants shall use or be trained to use criminal force against any such group. An aggravated offence is provided where the act is committed in a place of worship.

Section 197: imputations prejudicial to national integration

Section 197(1) punishes a person who, by words spoken or written, by signs, by visible representations, through electronic communication or otherwise:

(a) makes or publishes any imputation that any class of persons cannot, by reason of being members of a religious, racial, language or regional group or caste or community, bear true faith and allegiance to the Constitution of India as by law established or uphold the sovereignty and integrity of India;

(b) asserts, counsels, advises, propagates or publishes that any class of persons shall, by reason of such membership, be denied or deprived of their rights as citizens of India;

(c) makes or publishes any assertion, counsel, plea or appeal concerning the obligation of any class of persons by reason of such membership, where it causes or is likely to cause disharmony or feelings of enmity or hatred or ill will between such members and other persons; or

(d) makes or publishes false or misleading information, jeopardising the sovereignty, unity and integrity or security of India.

The punishment is imprisonment up to three years, or fine, or both, and up to five years with fine where the offence is committed in a place of worship or in an assembly engaged in religious worship or ceremonies.

Clause (d) is new. The repealed section 153B of the Penal Code had clauses corresponding to (a), (b) and (c) but nothing corresponding to (d). The offence of publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India is an addition made by the Sanhita, and it is the single most examinable change in this chapter for a paper about national security and free speech. A student writing about the new criminal laws should notice that this is a speech offence framed by reference to the security of India, and that it therefore has to be read subject to article 19(2) and to the Kedar Nath line of construction in [Offences Against the State, and What Replaced Sedition].

A worked example

A crowd of about sixty gathers outside a municipal office in Kalyan to protest a demolition notice. Speeches are made. Someone shouts that people of one community are behind the demolitions and cannot be loyal to the country. The crowd then pushes past the barricade, and a group inside it throws stones, injuring a clerk.

When did it become an unlawful assembly? Not when it assembled: a protest is lawful. It became one when the common object turned to resisting the execution of a legal process, or to overawing a public servant in the exercise of his lawful power, under section 189(1)(a) or (b). The Explanation to section 189(1) covers exactly this.

Is it a riot? Yes, from the moment force or violence was used in prosecution of the common object, under section 191.

Who is liable for the injury to the clerk? On section 190, every person who was a member of the assembly at the time, if the offence was committed in prosecution of the common object or was such as the members knew to be likely.

What about the speech? Section 196 if it promoted enmity between groups or was prejudicial to the maintenance of harmony and likely to disturb the public tranquillity; section 197(1)(a) if it imputed that a class of persons cannot bear true faith and allegiance by reason of their community.

And the executive response? Command to disperse under section 148 of the procedural Sanhita, force if the command is disobeyed, and if the crowd cannot otherwise be dispersed and public security requires it, the armed forces under section 149 with the least force consistent with dispersal.

Distinctions

What it does NOT mean

A large crowd is not an unlawful assembly. The common object must be one of the five in section 189(1). A peaceful demonstration of a thousand people is not within the section.

Rioting is not a separate assembly. It is the same assembly after force has been used.

Section 190 is not vicarious liability without limit. The offence must be committed in prosecution of the common object, or be such as the members knew to be likely to be committed in prosecution of that object.

These offences do not by themselves show a disturbance of public order in the constitutional sense. A riot ordinarily will, but the test is still reach into the community, and an affray between two men in a lane may be law and order only.

Quick revision

• Chapter XI of the BNS 2023, ss.189 to 197: offences against the public tranquillity, formerly Chapter VIII of the IPC.
• s.189: unlawful assembly, five or more, one of five common objects; a lawful assembly may become unlawful later; membership, continuing after a command to disperse, going armed, hiring and harbouring are all punished.
• s.190: every member liable for an offence committed in prosecution of the common object or known to be likely. Formerly s.149 IPC.
• s.191: rioting, force or violence used in prosecution of the common object.
• s.194: affray, two or more fighting in a public place and disturbing the public peace.
• s.196: promoting enmity between groups, formerly s.153A.
• s.197: imputations prejudicial to national integration, formerly s.153B, with a NEW clause (d) on false or misleading information jeopardising the sovereignty, unity and integrity or security of India.

Test yourself

1. When does an unlawful assembly become a riot? When force or violence is used by the assembly or by any member of it in prosecution of the common object. Section 191.

2. Can an assembly that was lawful when it gathered become unlawful? Yes. The Explanation to section 189(1) says so in terms.

3. What is new in section 197 compared with the repealed section 153B? Clause (d), which punishes making or publishing false or misleading information jeopardising the sovereignty, unity and integrity or security of India.

4. A man who threw no stone stands in a rioting crowd. Is he guilty of the injury caused? He may be, under section 190, if the offence was committed in prosecution of the common object of the assembly of which he was then a member, or was such as the members knew to be likely to be committed in prosecution of that object.

5. How many people are needed for an affray, and where must it happen? Two or more, fighting in a public place, and the public peace must be disturbed.