Collective Violence and Criminal Justice System Notes | LL.M. Semester 2 | Mumbai University | munotes

What the University actually prints

MU prints six topic labels for this paper and nothing else. No section ranges, no reading list, no sub-topics beyond one. The whole printed syllabus is this:

Four modules, one credit each, four credits in all. The paper runs three hours for one hundred marks, and every printed paper carries the same rubric: seven questions, attempt any four, all questions carry equal marks. That works out at twenty-five marks a question, and no paper prints a figure against any question.

Read the table again, because it decides how you must prepare. Twenty-five marks is a full essay. There is no section number to fall back on and no provision to recite. What you will be asked for is an argument with authority in it, four times over, in three hours.

What this book does with six labels

A label is not a syllabus. "Agrarian Violence and Repression" is four words for two centuries of history, a dozen statutes and a body of case law. So this book does two things that the printed page does not.

First, it declares what the labels contain. One hundred and fifty-one concepts, drawn from the six labels, each one quoting the label it comes from. That declaration is in the open, in a file called syllabus-contract.json in the working papers behind this book, and it is checked in both directions: no concept is here that does not answer a printed label, and no printed label is left unclaimed.

Second, it names the law. Thirty-one instruments, from the Constitution to a Maharashtra Act on social boycott, scoped to the provisions the labels reach. Three hundred and thirty-one provisions in all. Every one of them is taught somewhere in this book, and that is checked mechanically rather than promised.

You do not need to know any of that to read the book. It is said here because the alternative, on a syllabus of six bare lines, is a book that covers what its writer happened to think of.

How the paper divides

Module I is the vocabulary and the arguments. What force is, what coercion is, what violence is, how a crowd is made liable at all, and how India has thought about violence: ahimsa on one side, the revolutionary tradition on the other, and the State's own approach of preventive detention and special statutes in between.

Module II is agrarian violence, which is the oldest collective violence in India and the least reported. Two centuries of risings, the land reform that was supposed to end them, and the reasons it did not.

Module III is violence against the weaker sections: women, children, the disabled, the transgender, the bonded, the imprisoned. Six protective statutes and the question why the violence they answer has not fallen.

Module IV is caste and communal violence, which is the largest module and the most examined. The Atrocities Act in full, the Bombay riots, Gujarat, Ayodhya, lynching, hate speech, and the commissions of inquiry that reported on all of it.

Three words to fix now

Three words recur in every chapter and are worth pinning down before you meet them.

Collective. Violence is collective when the actor is a group acting as a group. A gang of robbers is a group but its violence is not collective in this sense, because the robbery is directed at the householder and not at a category the householder belongs to. A crowd that burns the houses of one community and leaves the neighbouring houses standing is doing collective violence, because the selection is by category.

Repression. MU prints this word in the Module II label itself. Repression here means violence by the State or by those the State tolerates, directed at suppressing a movement rather than at punishing an offence. It is not a term of abuse; it is a category, and the paper requires you to be able to describe it without either excusing it or shouting about it.

Atrocity. In Module IV this is a technical word. The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 uses it as its own title and never defines it, and a great deal turns on that.

Worked example

A question on a past paper reads: "Discuss the notions of force, coercion and violence." Where in this book is the answer, and how would a student find it?

Find the label. The University's printed sub-topic 1.1 is "Notions of 'force', 'coercion', 'violence'", so the question is set on Module I and the chapters that quote that label.

Find the chapters. Every chapter carries a Syllabus topic line in its front matter naming the label it answers. The chapters on force as an ordinary word, on coercion, on violence and on structural violence all quote sub-topic 1.1.

Find the law. Force has a statutory definition in section 128 of the Bharatiya Nyaya Sanhita 2023; coercion has one in section 15 of the Contract Act 1872; violence has none.

Write the answer. Distinguish the three, give the statutory definitions where they exist, say plainly that violence is undefined, and use the distinction to show why a statute that punishes force does not reach economic compulsion.

What the example shows. The book is organised so that a printed label leads to a set of chapters and each chapter leads to the provisions. A student who learns to move from the label to the front matter to the provision can answer a question this book does not anticipate.

What it does NOT mean

This is not a paper on the law of riots. A student who learns sections 189 to 197 of the Bharatiya Nyaya Sanhita and nothing else will be able to answer perhaps one question in seven. The offences matter, and they are taught here in full, but they are a small part of the paper.

It is not a history paper either. The history in Modules II and IV is there because the questions ask for it, and every question that asks for history also asks what the legal order did about it. An answer that stops at the narrative has answered half.

It is not a paper where opinion substitutes for authority. "Attempt any four" and no marks printed against a question does not mean the examiner wants your views. It means each answer has to carry its own weight in cases, statutes and findings.

Quick revision

• Collective violence is violence by a group, against a person chosen for a group characteristic, directed at that group.
• The criminal justice system is police, prosecution, courts and prisons.
• The paper exists because criminal law is built for one offender and one offence, and collective violence has neither.
• MU prints six topic labels and nothing else: Introductory, notions of force, coercion and violence, approaches to violence in India, agrarian violence and repression, violence against the weaker sections, caste and communal violence.
• Four modules, one credit each. Seven questions, attempt any four, twenty-five marks each.
• This book declares 151 concepts and 331 provisions across 31 instruments, and proves both against what MU printed.

Test yourself

1. Give a one-sentence definition of collective violence and say which of its three elements does most work. Violence by a group, against a person chosen for a group characteristic, directed at the group that person belongs to. The selection by category does most work: it is what distinguishes a riot from a large brawl and what makes the criminal law's individual focus inadequate.

2. A gang of five robs a house and beats the owner. Is this collective violence for the purposes of this paper? No. Five people is a group and the violence is real, but the owner was selected because they had property, not because of a category they belong to, and the violence is not directed at any group beyond them. It is an ordinary offence committed by more than one person.

3. Why can a criminal law built for one offender not answer a riot? Because every question it asks has no answer when four hundred people act at once: which of them did the act, what each intended, who will identify them, and who will give evidence. The law answers with the doctrines of common intention and common object, which are taught later in this module, and those doctrines carry the whole weight.

4. How many marks is one question on this paper worth, and how do you know? Twenty-five. No paper prints a figure against a question, but every paper prints one hundred total marks, seven questions, "attempt any FOUR" and "all questions carry equal marks". One hundred divided by four is twenty-five.

Section 176 is the power to investigate. If from information received an officer in charge of a police station has reason to suspect a cognizable offence, they may investigate without the order of a Magistrate. Sub-section (3) adds a requirement that matters a great deal in this paper: where an offence is punishable with seven years or more, the officer shall cause the forensic expert to visit the crime scene, collect forensic evidence, and videograph the process.

Read the words that follow, because students miss them. The duty operates from such date as may be notified within a period of five years by the State Government. It is therefore not in force everywhere, and where forensic facility is not available the State Government is to notify the use of another State's facility. A student who writes that every serious crime scene in India now gets a forensic visit has misread the sub-section.

Section 193 is the report on completion of investigation, the document usually called the charge-sheet. It is what turns an investigation into a prosecution, and if it is not filed the case simply stops.

What all of this assumes. Read those four sections together and you can see the assumption built into them: that there is one offence, that somebody wants it registered, and that the police station is willing. Every one of those assumptions fails in a riot, and Modules II, III and IV are largely the study of what follows.

Part two: the prosecution

Once the report under section 193 is filed, the case belongs to the Public Prosecutor, who is appointed by the State Government. The prosecutor is not the victim's lawyer. The prosecutor represents the State, and in a case of collective violence the State is frequently the institution whose failure is being examined.

This is a structural point and not an accusation. A Public Prosecutor appointed by a State Government cannot be an independent check on that Government's police, and no statute pretends otherwise. It is why victims of collective violence so often apply for a transfer of the trial, for a special prosecutor, or for an investigation by an agency other than the local police. Those three applications recur throughout this book.

Part three: the courts

The court tries the accused, decides guilt, and sentences. For most offences that is a Magistrate or a Sessions Judge under the ordinary law. For the offences in this paper it is very often a Special Court: the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 has its own, the Protection of Children from Sexual Offences Act 2012 has its own, and the special security statutes have theirs.

A court can only work on what reaches it. It cannot investigate, it cannot compel the prosecution to lead evidence it has not gathered, and in an adversarial system it cannot supply the case the prosecutor did not make. That limit is worth stating early, because a good deal of the criticism directed at courts in this paper is really criticism of the two stages before them.

Part four: the correctional machinery

Prisons, probation and after-care. This paper touches it at two points: custodial violence, which is Module III, and caste inside the prison, which is Module IV. The Penology paper in this same group takes it properly.

A worked example: what the relay looks like

Take a concrete case. On a night in a village, a crowd of about sixty from one community burns eleven houses belonging to another. One man dies. Follow it through the four parts.

1. Registration. Four survivors reach the police station at two in the morning. Under section 173 the officer must reduce their information to writing. If instead he records one omnibus complaint naming "unknown persons", the eleven separate offences become one weak case, and no later stage can undo it.
2. Investigation. Under section 176(3), because the offence carries more than seven years, a forensic team is to visit the scene, in a State that has notified the date. If the team arrives four days later, after the debris has been cleared, the physical evidence is gone.
3. The report. Under section 193 the officer files a charge-sheet against twelve named persons out of sixty. The other forty-eight are not before any court and never will be.
4. Prosecution. The Public Prosecutor is appointed by the State whose administration is being blamed for the delay. Witnesses are examined eighteen months later. Six of the eleven families have moved away.
5. Trial. The Sessions Judge has, in front of him, twelve accused, four witnesses who still live in the village, and no forensic evidence. He acquits.

Nothing in that sequence requires anybody to be corrupt. Each step is a small, ordinary institutional failure, and the four parts are joined in series, so the failures multiply rather than average out. That is the mechanism this whole paper studies.

What it does NOT mean

The criminal justice system is not the same thing as the criminal law. The criminal law is the body of rules that says what is an offence. The system is the machinery that applies them. A country can have excellent criminal law and a criminal justice system that delivers nothing, and a great deal of this paper is about exactly that gap.

It is not only the courts. Students routinely write "the criminal justice system failed" when they mean "the judgment was wrong". In most of the episodes in this book the judgment was the only part that worked as designed, on the material it was given.

And it is not a system in the engineering sense. Nobody designed the four parts to work together. They were built at different times by different statutes, and there is no institution whose job is the performance of the whole.

Quick revision

• Four parts: police, prosecution, courts, correctional machinery.
• Police powers now come from the Bharatiya Nagarik Suraksha Sanhita 2023, in force from 1 July 2024.
• Section 173: registration of information in a cognizable case; electronic information allowed, to be signed within three days; preliminary enquiry within fourteen days for offences of three to seven years, with the permission of an officer not below Deputy Superintendent of Police; refusal to register goes to the Superintendent and then to the Magistrate.
• Section 174: non-cognizable information, referred to the Magistrate.
• Section 176: power to investigate; sub-section (3) requires a forensic visit for offences of seven years or more, from a date the State Government notifies within five years.
• Section 193: the report on completion of investigation.
• The parts work in series, so failures multiply.
• The Public Prosecutor is appointed by the State, which is often the institution being examined.

Test yourself

1. Name the four parts of the criminal justice system and the one thing each does. Police, who investigate; prosecution, who conduct the case for the State; courts, who try and sentence; correctional machinery, which executes the sentence.

2. Which provision requires a forensic expert to visit the scene, and when? Section 176(3) of the Bharatiya Nagarik Suraksha Sanhita 2023, where the offence is punishable with seven years or more. The duty runs from a date the State Government notifies, within five years, so it is not yet universal.

3. Why is a Public Prosecutor a structural problem in a case of collective violence? Because the prosecutor is appointed by the State Government and represents the State, and in collective violence the State's own machinery is frequently what is being examined. The prosecutor cannot be an independent check on the police who report to the same government.

4. A defence counsel says "the courts have failed the victims of communal violence." What is the more precise statement? That in most such cases the investigation failed, and the court acquitted on the material it was given. A court in an adversarial system cannot supply evidence the prosecution did not gather, so criticism directed at the trial is usually criticism of the two stages before it.

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.

Read the two together and the machinery is visible. Section 3(5) requires a shared intention and applies to any number of persons. Section 190 requires only membership of an unlawful assembly, and it reaches offences the member did not intend at all, provided the assembly knew them to be likely.

Broken down

For section 3(5) the prosecution must establish:

1. A criminal act was done by several persons.
2. There was a common intention shared by all of them.
3. The act was done in furtherance of that common intention.
4. The accused participated in some way in the act.

For section 190 the prosecution must establish:

1. There was an unlawful assembly as defined in section 189.
2. The accused was a member of it at the time the offence was committed.
3. The offence was committed in prosecution of the common object, or was one the members knew to be likely to be committed in prosecution of that object.

The second is much easier to prove than the first, and that is the point of it. Section 3(5) requires the prosecution to get inside five minds. Section 190 requires it to prove that a person was in the crowd and that the crowd had an unlawful object. Presence plus membership does the rest.

Worked example

Ramesh, Suresh, Ganesh, Dinesh and Mahesh go together to Kailash's field, carrying sticks, to drive him off land they claim is theirs. On the way Ganesh, without saying anything to the others, picks up a stone. At the field the five surround Kailash, Ganesh throws the stone, and Kailash dies of the head injury.

Under section 3(5). The prosecution must prove that all five shared the intention to cause Kailash's death or such bodily injury as was likely to cause death. On these facts it probably cannot: the shared intention was to drive him off, and the stone was Ganesh's own idea. Ganesh is guilty of murder. The other four are guilty of what they did share, which is being part of an assault.

Under section 190. The prosecution must prove that the five formed an unlawful assembly. Five or more persons, common object of using criminal force to take possession of property. Yes. Was the killing done in prosecution of that common object? Perhaps not, since nobody intended a death. Was it an offence the members knew to be likely to be committed in prosecution of that object? Five men going armed with sticks to drive a man off his own field must be taken to know that a death is a likely outcome. If the court so holds, all five are guilty of murder, including the two who never touched him.

That is the whole difference, in one example. Section 190 converts a group's foreseeability into every member's guilt.

Distinctions

What it does NOT mean

It does not mean that presence alone is enough. For section 3(5) the accused must participate. For section 190 the accused must be a member of an unlawful assembly, which means sharing its common object; a spectator who has not joined the object is not a member, however close they stand. This distinction is the entire defence in most riot trials, and it is why the identification of individual accused matters even under section 190.

It does not mean the law has solved the problem. These doctrines make conviction possible in principle. They do not produce witnesses, they do not produce identification, and they cannot be applied to people the charge-sheet never named. In most of the episodes in this book the case failed long before any court had to decide whether the object was common.

And it does not make the doctrines uncontroversial. Making a man liable for a murder he did not intend, did not commit and would not have approved is a real cost. The justification is that he chose to be part of an armed assembly with an unlawful object, and that people who do that must take the consequences of what such an assembly foreseeably does. A good answer states that justification and states its price.

Limits and criticism

The standing criticism of section 190 is that it is a blunt instrument that is nevertheless too narrow in practice. Blunt, because it convicts the peripheral along with the principal. Too narrow, because it requires five identified persons proved to be members, and identification is exactly what collective violence destroys. So the doctrine is criticised by defence lawyers for over-reach and by victims' lawyers for delivering nothing, and both criticisms are true at once.

Quick revision

• Criminal law is built for one actor, one act, one mental state. Collective violence supplies none of the three.
• The answer is constructive liability, in two forms.
• Section 3(5), Bharatiya Nyaya Sanhita 2023: common intention, two or more persons, prior meeting of minds, participation required.
• Section 190: common object, five or more, no prior meeting of minds needed, mere membership enough, and it reaches what the assembly knew to be likely.
• Section 190 is the wider and the easier to prove.
• Neither doctrine produces a witness, and that is why they so often deliver nothing.

Test yourself

1. State the two doctrines of group liability and the provision that carries each. Common intention, section 3(5) of the Bharatiya Nyaya Sanhita 2023, and common object, section 190 of the same Sanhita.

2. Give the three most important differences between them. Common intention needs a prior meeting of minds and common object does not; common intention applies to two or more persons and common object to five or more; common intention requires participation while membership of the unlawful assembly at the relevant time suffices for common object.

3. Seven men go to demolish a wall. One of them, unknown to the rest, carries a knife and kills the wall's owner. On what basis might all seven be convicted of murder? Under section 190, if the court finds that they formed an unlawful assembly with the common object of using criminal force over property, and that a killing was an offence the members knew to be likely to be committed in prosecution of that object.

4. Why is the criticism of section 190 made from both sides at once? Because it is over-inclusive in principle, convicting the peripheral member of what the principal did, and under-effective in practice, since it still requires five members to be identified and proved, which is precisely what a crowd prevents.

The definition has three limbs. A person is said to use force to another if they cause:

1. Motion to that other person;
2. Change of motion to them; or
3. Cessation of motion to them;

or if they cause any substance to come into contact with that person's body, with anything they are wearing or carrying, or with anything so situated that the contact affects that person's sense of feeling.

Read the third limb again, because it is the one nobody expects. Force in Indian criminal law does not require a blow, or even a touch of the body. Throwing water on someone is force. Pulling away a chair as they sit is force, because it causes motion. Directing a dog at a person is force, because it brings a substance into contact with them.

The definition also carries a requirement of means: the force must be caused by the person's own bodily power, by disposing a substance so that the motion happens without further act, or by inducing an animal to move.

Why the definition is drawn so wide

Because the offences built on it need it to be. Assault, criminal force, wrongful restraint, rioting and the aggravated forms of each are all defined by reference to force. If force meant only a blow, then holding a woman's dupatta, spitting on a man's plate or throwing filth into a household well would be no offence at all, and each of those is a recognised form of caste violence that Module IV takes seriously.

A worked example. Bhaskar, who is not a member of a Scheduled Caste, sees Devi, who is, drawing water from a village handpump. He does not touch her. He picks up a bucket of dung water standing nearby and empties it into the trough she is filling from, so that the water she has drawn is spoiled and she steps back.

There has been no blow. There has been force, on the fourth limb: Bhaskar caused a substance to come into contact with something so situated that the contact affected Devi's sense of feeling, and he caused her motion by making her step back. And because of who Devi is and what was done, the conduct also engages the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, which is Module IV.

Force in political theory

The third sense is the one Module I's second topic needs. In political theory force is the capacity to compel obedience, and the defining claim of the modern State is that it holds a monopoly of the legitimate use of it. Nobody else may lawfully compel: not a caste panchayat, not a landowner, not a religious body, not a crowd.

Two things follow, and both are examinable.

Every act of collective violence is a challenge to that monopoly, whatever else it is. When a crowd punishes a couple for marrying outside their caste, it is not merely committing an offence; it is asserting a competing authority to punish. That is why such cases are treated as more serious than a private assault of the same severity.

The monopoly is a claim, not a fact. Large parts of India have, at various times, been governed by authorities other than the State: a caste panchayat that fines and boycotts, a private army that kills, an insurgency that taxes. Module II and Module IV are both, in part, studies of what happens where the claim is not made good.

Distinctions

Worked example

Four situations, and the question in each is whether force in the legal sense has been used.

A pushes B out of a doorway. Force in the ordinary sense and in the legal sense: motion is caused to another person.

A directs a jet of water at B from a hose. Force in the legal sense. The definition reaches causing motion to a substance which brings it into contact with another person, which is why the water cannon is within it and why nothing in the definition requires touching.

A locks a door so that B cannot leave. Not force in the legal sense, because no motion is caused to B or to any substance in contact with him. It is wrongful confinement, which is a different offence.

An employer tells a worker that he will lose his job and his advance if he does not stay. Not force at all in the legal sense, and this is the point of the chapter. In political theory it is coercion, and the law reaches it only where a statute says so: article 23 as construed in the Asiad workers case, and the definition of the bonded labour system in section 2(g) of the Act of 1976.

What the four show. The legal definition of force is narrower than the political idea of coercion and wider than the ordinary idea of violence, and an answer that treats the three as one word will go wrong on every case after the first.

What it does NOT mean

Force is not the same as violence. Force is a means. Violence, as the later chapters show, is a much wider idea that includes harm done with no force at all. A wage below subsistence involves no force in any of the three senses and is treated in this paper as violence.

Force in the Sanhita is not always an offence. The definition is neutral. Using force becomes criminal force only when it is done without consent, in order to commit an offence, or intending or knowing it likely to cause injury, fear or annoyance. A surgeon, a wrestler and a policeman making a lawful arrest all use force.

And the State's monopoly is not a licence. The State's use of force is legitimate only within the conditions the Constitution sets for it, which is the subject of the next chapter but one.

Quick revision

• MU's only printed sub-topic is 1.1, notions of "force", "coercion", "violence".
• Three senses: ordinary physical strength; the Sanhita's defined term; the political capacity to compel.
• The Sanhita's definition, section 128: causing motion, change of motion or cessation of motion, or causing a substance to contact the body, clothing or anything so situated as to affect the sense of feeling; caused by one's own bodily power, by disposing a substance, or by inducing an animal.
• The definition is wide on purpose, because assault, criminal force and rioting are all built on it.
• In political theory the State claims a monopoly of legitimate force; collective violence challenges that monopoly, and that is why it is treated as graver than a private assault.
• Force is a means; violence is much wider and includes harm done with no force at all.

Test yourself

1. State the four limbs of force as section 128 of the Bharatiya Nyaya Sanhita defines it, and the three permitted means. Causing motion to another; causing change of motion; causing cessation of motion; and causing any substance to come into contact with the other's body, with anything they wear or carry, or with anything so situated that the contact affects their sense of feeling. The three permitted means are the person's own bodily power, disposing a substance so that the motion follows without further act, and inducing an animal to move.

2. A throws a stone at B, which misses and lands at B's feet. Has A used force on B? Not on the definition alone, if nothing came into contact with B or with anything so situated as to affect B's sense of feeling and no motion was caused to B. If B jumped back, A caused B motion and force was used. The example shows that the question is not whether a stone was thrown but what happened to the person.

3. Why does the criminal law define force so widely? Because the offences built on it, including assault, criminal force, wrongful restraint and rioting, would otherwise miss most of the conduct they exist to reach, particularly forms of caste violence that involve no blow at all.

4. In what sense is collective violence a challenge to the State? In the political sense of force. The State claims a monopoly of the legitimate use of force, and a crowd that punishes is asserting a competing authority to punish, not merely committing an offence.

Broken down

Criminal force has four ingredients:

1. The intentional use of force as section 128 defines it.
2. Without the consent of the person to whom it is used.
3. Either in order to commit an offence, or with the intention or knowledge that it is likely to cause;
4. Injury, fear or annoyance to that person.

Assault has three:

1. A gesture or preparation, not mere words.
2. The person threatened must be present.
3. Intention or knowledge of the likelihood that it will cause that person to apprehend the use of criminal force.

Note the third word in the criminal force list: annoyance. It is a very low threshold, and it is deliberate. The Sanhita is reaching conduct that is humiliating rather than harmful, which is exactly the register in which most caste violence and most violence against women operates.

Worked example

Ashok, a landowner, sees Bhima, a landless labourer, sitting on a chair in the village square. Ashok, without touching Bhima, kicks the chair from under him. Bhima falls.

Force? Yes, on the first limb of section 128: Ashok caused motion to Bhima, by his own bodily power acting through the chair.

Criminal force? Yes. Bhima did not consent. Ashok intended, at the least, annoyance, and probably fear. All four ingredients of section 129 are made out.

Assault? If, before kicking the chair, Ashok had raised his foot and paused while Bhima was watching, that gesture would itself be an assault under section 130, complete before the chair moved.

What follows. On these facts the offence under section 131 carries three months. But if Bhima is a member of a Scheduled Caste and Ashok is not, and the act was done on that ground and in public view, the same conduct is an atrocity under section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, and the sentence is measured in years. That step, from three months to years, is what Module IV is about.

Distinctions

What it does NOT mean

Words alone are not an assault. The section requires a gesture or a preparation. A man who says "I will beat you tomorrow" commits no assault, although he may commit criminal intimidation under section 351. Students confuse the two constantly, and the distinction is a favourite short note.

Annoyance is not the same as harm. The threshold in section 129 is annoyance, which is far below injury, and a great deal of conduct that causes no injury at all is criminal force.

And three months is not the measure of the wrong. Section 131 is the residual punishment for simple assault. Almost every serious use of criminal force in this paper is charged under something heavier: hurt, grievous hurt, outraging modesty, or an offence under a special Act.

Limits and criticism

The fine of one thousand rupees in section 131 was carried over unchanged from the Indian Penal Code, where it was set in 1860. Parliament re-enacted the Sanhita in 2023 and left the figure where it was. A student writing on the adequacy of the criminal law's response to everyday humiliation can make that point in one sentence and it will land.

Quick revision

• Section 128: force, neutral, defined.
• Section 129: criminal force. Intentional force, without consent, to commit an offence or intending or knowing it likely to cause injury, fear or annoyance.
• Section 130: assault. A gesture or preparation, person present, causing apprehension of criminal force. Words alone will not do.
• Section 131: punishment for either, three months or one thousand rupees or both, unless on grave and sudden provocation by the person assaulted.
• Annoyance is the low threshold that lets the section reach humiliation.
• The same act may be an atrocity under the 1989 Act, and then the sentence changes completely.

Test yourself

1. State the four ingredients of criminal force. Intentional use of force; without the other's consent; in order to commit an offence or with intention or knowledge of likelihood; of causing injury, fear or annoyance to that person.

2. A shouts at B across a field that he will thrash him. Is that an assault? No. Section 130 requires a gesture or a preparation; words alone are not enough. It may be criminal intimidation under section 351.

3. Why does section 129 include "annoyance"? Because much of the conduct the section exists to reach is humiliating rather than injurious, and a threshold set at injury would leave it untouched. It is the word that allows the section to cover spitting, snatching a garment, or spoiling food or water.

4. What is the punishment under section 131, and what is notable about it? Three months, or a fine up to one thousand rupees, or both. The figure is the one the Indian Penal Code set in 1860 and Parliament left it unchanged when it re-enacted the offence in 2023.

Why it matters here. Gopalan is the low point of the constitutional control of State force, and this book returns to it whenever the State's coercive powers are examined. On the Gopalan reading, a statute authorising the police to do almost anything would satisfy article 21 provided it was properly enacted.

Maneka Gandhi v. Union of India, AIR 1978 SC 597, decided on 25 January 1978.

Facts. Maneka Gandhi's passport was impounded by an order of the Regional Passport Officer "in the public interest", without reasons and without a hearing.

Held. The Court held that articles 14, 19 and 21 are not mutually exclusive but form a single scheme, and that a law depriving a person of personal liberty must prescribe a procedure that is right, just and fair, and not arbitrary, fanciful or oppressive. Anything less is no procedure at all and the requirement of article 21 would not be satisfied.

Why it matters here. Maneka is what converts article 21 from a formal requirement into a substantive control on the State's use of force. Every subsequent development in this paper depends on it: the compensation cases, the arrest safeguards, the encounter guidelines and the challenges to preventive detention all proceed from the proposition that the procedure itself must be fair.

How the monopoly is exercised, in law

Three statutory routes matter for this paper, and each is taken in its own chapter later.

1. The graduated power to disperse a crowd, under sections 148 to 151 of the Bharatiya Nagarik Suraksha Sanhita 2023: command, civil force, armed force, and a protection for those who act.
2. The preventive power, under section 163 and the corresponding State police legislation, to forbid an assembly before it forms.
3. The power to detain without trial, under the National Security Act 1980 and the security statutes, which is force applied to a person who has committed no offence at all.

Each is a further step from the ordinary criminal process, and each therefore needs a stronger justification than the last.

Worked example

A district administration learns that two processions, from two communities, are due to pass the same crossroads within an hour of each other on a festival day.

Step one, prevention. The District Magistrate issues an order under section 163 of the Suraksha Sanhita prohibiting the assembly of more than four persons at that crossroads for twenty-four hours. No force has been used. The monopoly is being exercised as a rule.

Step two, command. One procession nevertheless arrives. An Executive Magistrate commands it to disperse under section 148(1). Still no force.

Step three, civil force. It does not disperse. The Magistrate directs the police to disperse it under section 148(2). Force is used, and it is lawful because the statutory conditions were satisfied in order.

Step four, and the point of the example. Suppose instead that the police open fire without any command having been given and without the crowd having refused to disperse. The force is now outside the statute. The officers are not protected by section 151, the deaths are not covered by any general exception, and the State's monopoly has become the State's offence. That is the line this whole paper is drawn along.

What it does NOT mean

It does not mean that the State's force is always legitimate. The Weberian claim is descriptive, not approving. It says that a State is the body which successfully claims the monopoly, not that whatever it does with the monopoly is right.

It does not mean private force is never lawful. The right of private defence is a real exception and is taken in its own chapter. But it is an exception, available only where the protection of the public authorities cannot be had.

And it does not mean the monopoly exists everywhere in India. In the areas Module II describes, and in the episodes Module IV describes, other bodies have exercised the power to punish: caste panchayats, private armies, crowds. A claim that is not made good is a claim that has failed, and a great deal of this paper is the study of where and why it failed.

Quick revision

• Weber: the State is the body that successfully claims a monopoly of the legitimate use of physical force in a territory.
• The monopoly is one half of a bargain; fair process is the other half.
• Article 21: no deprivation of life or personal liberty except by procedure established by law.
• Gopalan, 1950: procedure means whatever a valid statute says. Rights are separate compartments.
• Maneka Gandhi, 1978: articles 14, 19 and 21 form one scheme; the procedure must be right, just and fair.
• Article 22 sets the conditions on arrest and on preventive detention.
• Three statutory routes: dispersal under sections 148 to 151, prevention under section 163, and detention without trial.
• Force outside the statute is not the State's power; it is the officer's offence.

Test yourself

1. State Weber's proposition and say what kind of claim it is. That the State is the human community which successfully claims the monopoly of the legitimate use of physical force within a given territory. It is a descriptive claim about what makes a State a State, not an approval of what States do with the monopoly.

2. What did Gopalan decide, and what did Maneka Gandhi change? Gopalan held that "procedure established by law" meant any procedure laid down by a valid statute, and that the fundamental rights were separate compartments. Maneka Gandhi held that articles 14, 19 and 21 form a single scheme and that the procedure must be right, just and fair, and not arbitrary or oppressive.

3. Why is the sequence in sections 148 to 151 important rather than merely procedural? Because each step is a further use of force and each needs its own justification. Force used without the preceding command is not authorised by the section at all, so the protection in section 151 does not attach and the officers are exposed to the ordinary criminal law.

4. Give one example from this paper of the monopoly failing. A caste panchayat that fines and boycotts a family, or a private caste army that kills, or a crowd that punishes a couple for their marriage. In each the power to punish is being exercised by a body other than the State.

Broken down

Section 15 has two branches and one common requirement.

Branch one: an act forbidden by the penal law. Either committing it, or threatening to commit it.

Branch two: property. Either unlawfully detaining property, or threatening to detain it.

The common requirement, and the two phrases that do the work:

1. The act or threat must be to the prejudice of any person whatever. Not necessarily to the prejudice of the person being coerced.
2. It must be done with the intention of causing any person to enter into an agreement.

The case

Chikkam Ammiraju v. Chikkam Seshamma, (1917) 32 MLJ 494, decided by the Madras High Court on 23 January 1917.

Facts. Swami threatened his wife and his son that he would commit suicide unless they executed a release deed giving up their reversionary rights in certain land. They executed it. The deed was in favour of Swami's younger brothers, who had not made the threat. The wife and son sued to have it cancelled. Both lower courts found as a fact that the threat was made and that the deed was executed because of it.

Held, by Sadasiva Aiyar J. The threat was coercion within section 15. Suicide and an attempt at it are acts forbidden by the penal law. The words "to the prejudice of any person whatever" were advisedly used, and show that the prejudice need not be to the person entering into the contract; the prejudice to Swami's own life was therefore enough. And the threat need not proceed from a party to the agreement at all.

Held, by Moore J., dissenting. The facts constituted neither coercion nor undue influence. The prejudice to Swami's own life was not sufficient, and section 16(2)(b) did not apply because Swami was not a party to the contract.

The outcome. Under section 98 of the Code of Civil Procedure the decree of the lower appellate court stood. On the Letters Patent appeal Wallis C.J. held that the finding of coercion was a finding of fact which could not be interfered with in second appeal, adding the practical warning that such a defence is easily set up and the evidence for it should be very closely scrutinised.

Why it matters here. Three propositions come out of it, and all three are examinable. The threatened act must be one the penal law forbids. The prejudice may be to anybody at all, including the person making the threat. And the threat may come from a stranger to the agreement. Between them they make the Indian definition of coercion considerably wider than the English doctrine of duress, which is the next chapter.

Worked example

A tenant, Sitaram, has been cultivating land for nine years and is close to acquiring a statutory right of occupancy. The landlord's men come to his house and tell him that unless he signs a document surrendering the tenancy that night, his standing crop will be cut and taken away.

Is this coercion? Cutting and removing a standing crop is theft and mischief, both forbidden by the penal law. It is threatened to the prejudice of Sitaram. It is done with the intention of causing him to enter into an agreement, namely the surrender. Section 15 is satisfied and the surrender is voidable at Sitaram's option under section 19.

Why the answer matters for this paper. Notice what the criminal law does with the same facts. If the crop is never cut, there may be criminal intimidation, but there is no theft and no mischief, because nothing was done. The contract law reaches the transaction; the criminal law reaches almost nothing. That gap is one of the recurring findings of Module II, where the mechanism of dispossession was very often a document rather than a blow.

What it does NOT mean

Coercion is not an offence. There is no offence called coercion in Indian law. The consequence of coercion is that the agreement is voidable, and that under section 72 anything delivered under coercion must be repaid or returned.

Coercion is not the same as duress. Duress is the English common law doctrine and is narrower: it requires, broadly, a threat to the person of the contracting party or a member of their immediate family. Section 15 requires neither.

And coercion is not a synonym for pressure. Ordinary commercial pressure, and even hard bargaining by a much stronger party, is not coercion, because no act forbidden by the penal law is threatened. The person who has only ordinary pressure to complain of must look to undue influence under section 16, which is the subject of the next chapter.

Quick revision

• Coercion, section 15 of the Indian Contract Act 1872. Not a criminal law concept.
• Two branches: an act forbidden by the penal law, committed or threatened; or unlawful detention or threatened detention of property.
• To the prejudice of any person whatever, and with the intention of causing any person to enter into an agreement.
• Effect: the agreement is voidable under section 19, and section 72 requires restoration of what was delivered.
• Chikkam Ammiraju, 1917: a threat of suicide is coercion. Prejudice may be to anybody, including the threatener; the threat may come from a stranger to the contract.
• The reference to the Indian Penal Code is read as the penal law for the time being in force, the Bharatiya Nyaya Sanhita 2023 since 1 July 2024.

Test yourself

1. Where is coercion defined, and what is its legal effect? Section 15 of the Indian Contract Act 1872. Its effect is that the agreement caused by it is voidable at the option of the party whose consent was so caused, under section 19, and that anything delivered under it must be restored under section 72.

2. State the two phrases in section 15 that make it wider than it looks, and the case that established each. "To the prejudice of any person whatever", which means the prejudice need not be to the party being coerced, and the proposition that the threat need not come from a party to the agreement. Both are from Chikkam Ammiraju v. Chikkam Seshamma.

3. A creditor tells a debtor that unless he signs an acknowledgment of debt today, the creditor will sue him tomorrow. Is that coercion? No. Suing is not an act forbidden by the penal law, so neither branch of section 15 is engaged. It is a lawful threat, however unwelcome.

4. Why does a paper on collective violence care about a provision of the Contract Act? Because most collective violence works on the will rather than on the body, and the transactions it produces, surrenders of tenancy, withdrawals of complaints, deeds of release, are reached by section 15 when the criminal law reaches nothing at all.

Section 16(2)(b) is the limb that matters most here. Mental or bodily distress puts a person in the protected class, and collective violence produces mental distress by design. It was the limb Sadasiva Aiyar J. relied on in Chikkam Ammiraju to say that a wife and son acting under the strain of a threatened suicide were within it.

Distinctions

Worked example

Take one set of facts and run all three tests over it, which is how the distinction is best learnt.

Ganga, a widow with a small holding, owes money to Hiralal, the village moneylender, who has kept her accounts for twenty years and reads and writes for her. Hiralal wants her land. Consider three versions.

Version one. Hiralal's men tell Ganga that if she does not sign the sale deed her house will be burnt. This is coercion. Arson is forbidden by the penal law, it is threatened to her prejudice, and it is done to make her enter into an agreement. The deed is voidable under section 19.

Version two. Hiralal says nothing threatening. He tells Ganga, as he has told her for twenty years, that this is what she should do, and produces a deed selling forty acres for the price of four. This is undue influence. He stands in a fiduciary relation and holds apparent authority, so he is in a position to dominate her will under section 16(2)(a); the transaction is unconscionable on its face; and under section 16(3) the burden is on him to prove that the contract was not induced by undue influence. He will not discharge it.

Version three. Hiralal simply offers a poor price and Ganga, who needs money, accepts. This is neither. No penal act is threatened, and if the price is merely low rather than unconscionable, and Ganga understood what she was doing, the law will not reopen the bargain. Hard bargaining is not a defect of consent.

The lesson from running the three together. The facts that decide the case are not the ones a beginner looks at. It is not the size of the pressure that matters, it is its shape: what was threatened, and what the relationship was.

What it does NOT mean

Duress is not an Indian term of art. Indian statute uses coercion and undue influence. Duress appears in Indian judgments as a comparative reference and in the phrase "duress of goods", and a student who writes an answer around duress rather than section 15 has answered a different jurisdiction's question.

Undue influence is not a lesser form of coercion. It is a different thing entirely, and in practice it is the more dangerous of the two, because it needs no threat and leaves no evidence of one.

And section 16(3) does not reverse the burden in every case. It reverses it only where the dominant position is established and the transaction appears unconscionable. Both conditions are needed, and students regularly assert the reversal on the first alone.

Limits and criticism

The overlap between the two sections is real and has never been tidied up. Chikkam Ammiraju is the clearest illustration: two judges of the same court, on the same facts, reached opposite conclusions, one holding the case fell within section 15 and section 16(2)(b) and the other holding it fell within neither. A student writing on the adequacy of the law's treatment of pressure can use that disagreement as the whole of the criticism, and should note that it was resolved not by reasoning but by section 98 of the Code of Civil Procedure, which provides for what happens when a bench divides.

Quick revision

• Coercion, section 15: an act forbidden by the penal law, or unlawful detention of property, to the prejudice of any person whatever, to cause an agreement.
• Undue influence, section 16: a relationship allowing one to dominate the will of the other, used to obtain an unfair advantage.
• Section 16(2): real or apparent authority, fiduciary relation, or a party whose mental capacity is affected by age, illness, or mental or bodily distress.
• Section 16(3): where the dominant position is shown and the transaction is unconscionable, the burden shifts.
• Duress is the English doctrine and is narrower; it is not an Indian term of art.
• Both make the agreement voidable, section 19 for coercion and section 19A for undue influence.
• The two overlap, and Chikkam Ammiraju is the case where two judges disagreed about which applied.

Test yourself

1. What is the essential difference between coercion and undue influence? Coercion turns on the nature of the threat, an act forbidden by the penal law or unlawful detention of property. Undue influence turns on the nature of the relationship, one party being in a position to dominate the other's will and using it to obtain an unfair advantage.

2. When does the burden of proof shift under section 16(3), and what two things must be shown first? That the party was in a position to dominate the will of the other, and that the transaction appears, on its face or on the evidence, to be unconscionable. Only then does the burden of proving the absence of undue influence lie on the dominant party.

3. A doctor persuades a seriously ill patient to sell him her house at half its value. Which section, and which limb? Section 16. He stands in a fiduciary relation and she is a person whose mental capacity is temporarily affected by illness, so both limbs of section 16(2) apply, and the price makes the transaction unconscionable so the burden shifts under section 16(3).

4. Why should an answer on this topic not be built around duress? Because duress is the English common law doctrine and is narrower than section 15. Indian law uses coercion and undue influence, and an answer framed on duress is answering about another jurisdiction.

1. Direct violence. An identifiable actor, an identifiable victim, an act. The blow, the killing, the arson. This is what the criminal law is built for.
2. Structural violence. No identifiable actor. The harm is produced by the ordinary working of an arrangement: the tenancy, the wage, the debt, the exclusion. Nobody has to intend it for it to happen every year.
3. Cultural violence. The beliefs, the stories and the sacred texts that make the first two look acceptable, or natural, or deserved. This is what makes structural violence stable.
4. Institutionalised violence. Harm produced by an institution's own rules and routines, so that changing the officer changes nothing. The police station, the prison, the school, the hospital.

The four are not four separate things in the world. They are four ways of looking at the same episode, and a good answer says so. The lynching in Module IV is direct violence in the moment, resting on a structure of caste and land that made the victim available, licensed by a culture that made the crowd feel righteous, and delivered to no consequence by institutions that failed in the ordinary way.

Why the definition is contested

It is worth knowing the objection, because a strong answer states it.

The objection is that a definition this wide dissolves responsibility. If a wage is violence, then everybody who buys cheap food is a perpetrator, and once everyone is guilty nobody is. Worse, it may be argued, calling a low wage violence steals the moral weight of the word from the woman who was actually beaten.

There are two answers and a student should give both.

The first is that the definition is analytical, not accusatory. Saying that a structure produces avoidable harm is a claim about causation. It does not say that any particular person is a criminal, and it does not say that criminal law is the right instrument. Most of Module II ends with the conclusion that it is not.

The second is that the narrow definition has its own cost, and history has already paid it. For most of the period Module II covers, the law recognised the blow and not the arrangement, and the result was that the arrangement continued undisturbed for two centuries while the occasional blow was punished.

Worked example

A landless family in a village works for a landowner. Over nine years, the following happens.

• The wage is one-third of the statutory minimum. Structural violence. No actor, no act, no offence charged, and the effect on the family's nutrition and their children's growth is measurable.
• The family owes the landowner for a wedding loan, and the debt has grown. They cannot work elsewhere until it is repaid. Structural violence, and also a criminal offence, since the bonded labour system was abolished by the Bonded Labour System (Abolition) Act 1976 and its continuation is punishable.
• The village believes that this family's caste is meant for this work, and the family half believes it too. Cultural violence, and the second half of that sentence is what makes it so durable.
• When the son asks for the minimum wage, he is beaten. Direct violence, and the first thing in the list that the criminal law will look at.
• The police station declines to register the complaint, then registers it against unknown persons. Institutionalised violence.

Five forms, one family, nine years, and only one of the five is an offence anybody will be tried for. That sentence is the paper in miniature and it is worth remembering.

What it does NOT mean

It does not mean that all harm is violence. Harm that could not have been avoided is misfortune. An earthquake is not violence; the collapse of buildings that were required by law to be built to withstand it may be.

It does not mean that violence requires intention. Structural violence has no intending actor at all, and this is exactly where the definition parts company with the criminal law, which cannot proceed without one.

And it does not mean the criminal law is the answer. Recognising a thing as violence is not the same as concluding that somebody should be prosecuted for it. The last chapter of Modules II and III both make that point at length.

Quick revision

• No statutory definition of violence exists in Indian law.
• Working definition: the avoidable impairment of fundamental needs. The load-bearing word is avoidable.
• Four forms the paper needs: direct, structural, cultural, institutionalised.
• They are four views of one episode, not four separate events.
• The standing objection is that a wide definition dissolves responsibility; the answers are that it is analytical rather than accusatory, and that the narrow definition left the arrangement untouched for two centuries.
• Structural violence has no intending actor, which is precisely why criminal law cannot reach it.

Test yourself

1. Give a definition of violence that is wide enough for this paper and say which word does the work. The avoidable impairment of a person's fundamental physical and mental realisation. The word "avoidable" does the work: it distinguishes violence from misfortune.

2. Name the four forms and say which of them the criminal law is built to handle. Direct, structural, cultural and institutionalised. Only direct violence, because only it supplies an actor, an act and a mental state.

3. State the strongest objection to defining violence this widely, and answer it. That it dissolves responsibility by making everybody a perpetrator and nobody accountable. The answer is that the definition is analytical rather than accusatory: it identifies causation, not criminality, and it does not follow that criminal law is the right instrument. The narrow definition has its own cost, which is that for two centuries the law punished the occasional blow and left the arrangement producing it entirely alone.

4. A child dies of a preventable disease in a district with no primary health centre. Is that violence on this definition, and what would make it not? It is, because the death was avoidable and the avoidance was withheld from that child by an arrangement. It would not be if the disease were untreatable anywhere, because then nothing was avoidable and the death is a misfortune.

Indian examples, all of which recur later in this book. A wage below subsistence. A tenancy terminable at will. A debt that outlives the debtor. A residential pattern that puts one settlement downstream of another's waste. A school whose midday meal is cooked by a person the children's families will not accept food from. None of these requires an offender.

Cultural violence

The part students find hardest, because it does not look like violence at all.

Cultural violence is the stock of beliefs, stories, symbols, customs, sacred texts and everyday language that makes direct and structural violence look acceptable, natural, deserved, or simply not worth noticing.

Its work is legitimation. It does not itself hurt anybody. It makes hurting somebody feel right to the person doing it, and it makes being hurt feel deserved to the person it is done to, which is the more damaging half.

Its features. It changes very slowly. It is carried in ordinary things rather than in institutions: a proverb, a term of address, a story told to children, a rule about who may enter a kitchen. And it is what makes structural violence survive a change of government, because governments do not control it.

How the three hold each other up

Take the triangle in both directions.

Downwards. Cultural violence licenses the structure. The structure produces routine deprivation. When someone challenges the structure, direct violence is used to restore it, and the culture supplies the justification for the direct violence too.

Upwards. Every episode of direct violence that goes unpunished confirms the structure. Every year the structure operates without challenge, the culture is confirmed.

This is why the paper's last chapters keep asking what the criminal law can do. Criminal law can reach the corner of the triangle labelled direct. It has no instrument for the other two, and the other two are what produce the first.

Worked example

A village has two settlements. The following are true at the same time.

• The families in the smaller settlement are landless and work for the larger. The wage is fixed by custom at less than the statutory minimum, and everyone knows it. Structural.
• Their houses are downstream of the village drain. Waterborne illness is normal there and rare in the other settlement. Structural.
• The children sit at the back of the classroom. No teacher instructed this. Structural and cultural at once.
• It is said in the village that this is the work that community has always done, and the older men in that community say it too. Cultural.
• A young man from the smaller settlement rides a horse to his own wedding. That night his house is burnt. Direct.

Now ask what the criminal justice system will do. It will, if everything goes well, prosecute the arson. It will not touch the wage, the drain, the classroom or the belief. And the arson happened because of the four things it will not touch.

Distinctions

What it does NOT mean

It does not mean direct violence is unimportant. It is the part that kills people on a given night, and the part this paper's statutes are about. The analytic ranks nothing; it distinguishes.

It does not mean structural violence has no perpetrator in a moral sense. It means it has no perpetrator in the sense criminal law requires. Those two are different claims, and conflating them is how the analytic gets misused.

And cultural violence is not the same as culture. It is the part of a culture that legitimates harm. Saying that a proverb does cultural violence is not saying that the tradition it belongs to is worthless, and an answer that slides into that will read as polemic rather than analysis.

Quick revision

• Direct: actor, victim, act. Visible, episodic, reached by criminal law.
• Structural: harm from the ordinary working of an arrangement. No actor, no intention, invisible, continuous, much larger, and outside criminal law.
• Cultural: belief, custom, story and sacred authority that legitimate the other two.
• Drawn as a triangle, each corner supporting the others.
• Test for structural: ask what would have to change for the harm to stop.
• Criminal law reaches one corner of three, and that corner is produced by the other two.

Test yourself

1. Define the three forms in one sentence each. Direct violence is harm done by an identifiable actor by an identifiable act. Structural violence is harm produced by the ordinary working of a social arrangement, with nobody intending it. Cultural violence is the body of belief and custom that makes the other two appear legitimate.

2. Give the test that distinguishes direct from structural violence. Ask what would have to change for the harm to stop. If a person would have to stop doing something, it is direct. If the arrangement itself would have to be different, it is structural.

3. Why can the criminal law not reach structural violence? Because criminal law requires an actor, an act and a mental state, and structural violence has none of the three. The harm is produced by an arrangement operating normally.

4. What work does cultural violence do that the other two cannot do for themselves? Legitimation. It makes the structure look natural and the direct violence look deserved, including to the people it is done to, and that is what makes the whole configuration stable across generations.

Honour. The word carries a whole system of meaning about who a woman may marry, and its enforcement, in Module III, is a killing.

Distinctions

Worked example

A government school in a village. Nothing here is an offence, and all of it recurs in the reports Module IV relies on.

• The register lists the children by name and caste, because the form asks for it.
• The children from one community sit at the back. Nobody has told them to. They have always sat there, and the teacher would say, correctly, that he has never moved anybody.
• At the midday meal, the children from that community are served last. This is described as convenience.
• One of them wants to be a teacher. His mother tells him to consider something more realistic, and she means it kindly.

Where is the violence? There is no actor, no act and no offence. There is a system of meanings that every person in the room, including the children it disadvantages and the mother who loves her son, treats as ordinary. The last item is the most serious and is the one no law will ever reach.

And notice where the law is not helpless. The register, the seating and the serving are each capable of being reached: by a rule about registers, by a school inspection, by the offence of denying access to a service on the ground of untouchability. What is beyond the law is the mother's advice, and that is why every answer on this topic has to distinguish what law can do from what only time can do.

What it does NOT mean

It is not a softer word for prejudice. Prejudice is a belief held by the dominant. Symbolic violence is a system of meanings held by both groups, and the complicity of the dominated is what defines it.

It does not mean the dominated are to blame. The complicity is produced by the same process that produces the domination, and it is not chosen. An answer that reads as though the victims consented has misunderstood the concept.

And it is not an alternative to studying the law. It explains why so many protective statutes are so little used. The Protection of Civil Rights Act 1955 produced one Supreme Court case in forty-two years, and the reason is not that untouchability stopped.

Quick revision

• Symbolic violence: imposition of a system of meanings, recognised as legitimate by those it subordinates.
• The defining feature is complicity of the dominated, which is what separates it from structural violence.
• Four steps: a distinction exists; it acquires meaning; the meaning is generalised and taught; the dominated adopt it.
• Carried in address, food, naming, honour and aspiration.
• No actor, no act, no offence, and therefore no case.
• It explains why protective statutes go unused, not why they are unnecessary.

Test yourself

1. Define symbolic violence and name its defining feature. The imposition of a system of meanings on a subordinated group in such a way that the group recognises it as legitimate. Its defining feature is the complicity of the dominated, who apply the same categories to themselves.

2. Distinguish it from structural violence in one sentence. Structural violence is located in arrangements and operates whether or not anybody believes in it; symbolic violence is located in meanings and operates only because the dominated share them.

3. Give an Indian example that no statute can reach, and say why. A mother advising her child against an aspiration she has come to think unrealistic for people like them. There is no actor, no act, no coercion and no offence, and the harm is done through a belief the law cannot address.

4. Why is it wrong to say that symbolic violence means the victims consented? Because the belief that makes them accept it is produced by the same process that subordinates them. The complicity is an effect of the domination, not an agreement to it.

And the protective institutions themselves. A commission with no power to enforce its findings, a special court with no separate judge, a compensation scheme with no budget. An institution that promises a remedy and cannot deliver it inflicts a second harm of its own.

Causes, in three layers

An examiner asking for causes and remedies wants structure, and three layers is the structure that works.

Layer one: design. Some of it is written into the rules. A police force whose statutory purpose, in an Act of 1861, was the maintenance of order for a colonial administration rather than service to a citizen. A prison manual that classified prisoners by caste. A procedure that gives the victim no standing at all.

Layer two: incentives. Detection rates that reward closure rather than truth. Postings and transfers controlled by politicians, so that an officer who acts against a locally powerful group is punished for it. No consequence for an officer who does not register a complaint.

Layer three: culture. The officers come from the same society. They bring its categories with them, and the institution does not train them out. That is where institutionalised violence meets the symbolic violence of the previous chapter, and the meeting point is where the harm becomes invisible even to the people inflicting it.

Remedies, and how well each works

Individual accountability. Prosecute or discipline the officer. Necessary, and by itself almost useless, because it fails the third test: the successor does the same thing.

Rules and directions. The arrest safeguards, the encounter guidelines, the requirement of videography, the requirement of a written record. These work better than prosecution because they change the routine rather than the person. Their weakness is that a rule with no monitoring becomes a form to be filled.

Structural change to incentives. Separating investigation from law and order. Fixed tenures. An independent complaints authority. These are the seven directions in Prakash Singh, and they are the most promising remedy on this list because they operate on the layer that produces the harm. Their weakness is that they require the institution to be reformed by the people who benefit from it as it stands.

Transparency. Compulsory CCTV in police stations, published data, an independent audit. A remedy that works by making the routine visible, and one of the few that does not depend on the goodwill of the institution.

Compensation. It repairs the individual harm and does nothing to the institution unless the payment falls on the institution's own budget rather than on the public revenue.

Worked example

A man is taken to a police station for questioning at eight in the evening. He is not shown as arrested. He is questioned through the night by officers working a shift they have worked for years. He is struck. He confesses to a theft. At six the following morning his arrest is recorded, and the medical examination on production before the Magistrate records no injuries because none of the blows was to a visible place.

Nothing in that account is unusual, and that is the point. The individual officers may be, and often are, prosecuted for nothing at all, because there is nothing on any record. Now apply the three tests. It is routine. It is produced by the incentive to close the case without forensic support. And moving those officers to another station moves the practice with them and leaves it behind as well.

Which remedy touches it? Not prosecution. The safeguards on arrest, if enforced, would have required the arrest to be recorded and the family informed at the time he was taken. Compulsory recording of the station would have made the night visible. Separating investigation from law and order would have put the questioning in the hands of officers not measured on closure. All three are structural, and all three are examined later in this book.

What it does NOT mean

It does not mean nobody is responsible. Institutional causation and individual responsibility are not alternatives. The officer who struck the man committed an offence. The point is that punishing him alone will not stop the next one.

It does not mean the institution intends the harm. Almost never does anybody write down a policy of beating suspects. Institutionalised violence is produced by incentives and routines, and intention is not required, exactly as with structural violence.

And it is not a synonym for corruption. Corruption is a person taking a benefit. Institutionalised violence needs no benefit to anybody; the night described above may involve no money at all.

Quick revision

• Institutionalised violence: violence produced by an institution's normal functioning.
• Three tests: routine, produced by incentives rather than character, and survives replacement of the individuals.
• Appears in the police station, the prison, the trial, the district administration and in protective institutions that cannot deliver.
• Causes in three layers: design, incentives, culture.
• Remedies ranked by what they touch: individual accountability weakest; rules and directions better; structural change to incentives best; transparency the most robust because it does not depend on goodwill; compensation repairs the person, not the institution.
• Institutional causation does not displace individual responsibility.

Test yourself

1. State the three tests for institutionalised violence. It is routine rather than exceptional; it is produced by the institution's incentives rather than by the character of its members; and it survives the replacement of the individuals who carry it out.

2. Why is prosecuting the officer, on its own, an inadequate remedy? Because it fails the third test. If the practice continues under the successor, the individual was not the cause, and removing him changes nothing.

3. Give the three layers of cause with one Indian example of each. Design: a police statute of 1861 written for a colonial administration. Incentives: detection rates that reward closure without forensic support. Culture: officers bringing the categories of the surrounding society into the station.

4. Which remedy does not depend on the institution's goodwill, and why? Transparency, such as compulsory recording of police stations and published data, because it makes the routine visible to people outside the institution and so does not require the institution to police itself.

Read the last six words again. "All forms of exploitation" is not the language of a criminal statute. It is the language of a document that understands harm structurally, and it is the constitutional warrant for the whole of this paper's third and fourth modules.

The four arrangements

Land. The distribution of land is the single arrangement from which most of Module II follows. Ownership is concentrated, tenancy is insecure where it is not illegal, and a large agricultural population is landless. Every peasant movement in Module II is about this, and every land reform statute is an attempt on it.

Labour. A wage below what a family needs is structural violence in its purest form: nobody strikes anybody, and the effects appear as illness, as stunting and as children out of school. The Constitution's answer is in article 39, and the statutory answer is the minimum wage, which Module II examines and finds largely unenforced.

Caste. The arrangement that assigns occupation, residence and marriage by birth. What makes it structural rather than merely cultural is that it allocates material things: which land, which work, which water, which street. Module IV is about it.

Residence. Where a settlement is placed decides what water it drinks, what it breathes and how far its children walk to school. In an Indian village the placement is usually by caste, which is why the last two arrangements are hard to separate.

Worked example

Take one household and follow the arrangements through it, because this is how an examiner wants the abstraction handled.

Lakshmi's family are landless agricultural labourers in a village in Marathwada. In a year:

• They get work for perhaps 150 days. The wage is below the notified minimum, and nobody in the village pays the notified minimum, so there is no employer to complain about. Labour.
• They live in the settlement at the low end of the village, where the drain runs. Two of Lakshmi's four children have had waterborne illness this year. Residence.
• Lakshmi's eldest daughter left school at eleven, because the family needed a second earner and because the walk was three kilometres. Labour and residence together.
• The family took a loan for a wedding. It is at an interest rate that cannot be repaid out of a labourer's wage, and repayment is by labour. Land and labour, and on these facts possibly the offence of keeping a person in bondage.

Where is the offender? There is not one. Every person in this account is behaving as people in that village behave. And the harm to this household over ten years is larger than the harm any single act of direct violence in that village has caused.

Where is the law? Article 39 requires that the health and strength of workers is not abused and that children are not forced by economic necessity into work unsuited to them. Article 46 requires the State to protect the weaker sections from all forms of exploitation. Both are directive principles, which article 37 makes not enforceable by any court while declaring them fundamental in the governance of the country. That gap between fundamental and enforceable is the standing criticism, and it is worth one careful sentence in any answer on this topic.

What it does NOT mean

It does not mean India is uniquely structurally violent. Every society has structural violence. What the Indian material offers is an unusually well-documented case in which the structure is recognised by the country's own Constitution, named in three articles, and largely uncorrected.

It does not mean poverty and structural violence are the same word. Poverty is a state. Structural violence is a claim about causation: that the deprivation is produced by an arrangement and could have been avoided.

And it does not mean the directive principles are worthless. They have been used to interpret article 21, they are the basis on which land reform legislation survived challenge, and they are why the Supreme Court could read a right to a minimum wage into the prohibition of forced labour. Their weakness is that they cannot be enforced directly; their strength is that they colour everything that can be.

Quick revision

• Four arrangements: land, labour, caste, residence, and the last two are hard to separate in a village.
• Article 38: a social order in which justice informs all institutions; minimise inequalities of income, status, facilities and opportunities, between groups as well as individuals.
• Article 39: material resources distributed to subserve the common good; no concentration of wealth; equal pay; the health and strength of workers not abused.
• Article 46: promote the interests of the weaker sections and protect them from social injustice and all forms of exploitation.
• Article 37: the directive principles are not enforceable by any court but are fundamental in the governance of the country. That gap is the criticism.
• Structural violence is a claim about causation and avoidability, not a synonym for poverty.

Test yourself

1. Name the three directive principles that address structural violence and give the operative words of each. Article 38, a social order in which justice, social, economic and political, shall inform all the institutions of the national life, and the minimising of inequalities of income, status, facilities and opportunities. Article 39, the material resources of the community distributed to subserve the common good, and the health and strength of workers not abused. Article 46, protection of the weaker sections from social injustice and all forms of exploitation.

2. What is the constitutional weakness of relying on those three articles, and what is the answer to it? Article 37 makes the directive principles unenforceable by any court while declaring them fundamental in governance. The answer is that they are not useless: they inform the interpretation of article 21, they sustained land reform legislation against challenge, and they supplied the reasoning by which a wage below the minimum was held to be forced labour.

3. Distinguish poverty from structural violence. Poverty describes a condition. Structural violence asserts that the condition is produced by an identifiable arrangement and was avoidable, which is a claim about causation and about responsibility, though not about criminal responsibility.

4. Why are caste and residence hard to separate in an Indian village? Because the placement of settlements has historically followed caste, so the material consequences of where a family lives, its water, its drainage, its distance from a school, are consequences of caste operating through geography.

The law's answer has been to build selection into the offence, and this book contains four instances of it: section 103(2) of the Sanhita, murder by a group on a ground such as race, caste or community; section 117(4), grievous hurt by a group on the same grounds; section 3 of the Atrocities Act, which is a whole catalogue of offences defined by whom they are done to; and the aggravated forms in the Protection of Children from Sexual Offences Act.

Worked example

Four episodes in one district in one year, and the question is which of them is collective violence.

1. Two men quarrel over a boundary. One kills the other. Individual actor, individual victim. Ordinary murder, and nothing in this paper applies.
2. Twenty men fight twenty others at a fair. Group actor, but the victims are not selected by any characteristic beyond being on the other side. This is rioting under section 191 and probably affray on a large scale; collective in the actor only.
3. One man kills a labourer because the labourer, a member of a Scheduled Caste, insisted on the minimum wage. Individual actor, group-selected victim. Section 3(2) of the Atrocities Act applies, and the sentence is not the sentence for murder alone.
4. Sixty people burn eleven houses of one community. Both. This is the case the whole paper is written about, and the offences run from section 189 to section 197 together with section 103(2) and the Atrocities Act.

Notice what the criminal justice system will actually manage. It will handle the first easily. It will handle the second with difficulty, because identification in a crowd is hard. It will handle the third if the investigating officer applies the right Act, which Module IV shows is far from certain. It will very often fail entirely at the fourth.

What it does NOT mean

Collective violence does not require a crowd. A single person can commit it, if the selection is by group. Students lose marks by defining collective violence as violence by a crowd and then being unable to explain why a lynching by three people, or a killing by one, is in the syllabus.

And it does not mean every crime by a group is collective violence. A gang of dacoits is a group and its violence is not collective in the sense this paper uses, because the selection of the victim is by opportunity, not by category.

Nor does the selection have to be conscious. A crowd that burns the houses on one side of a lane may not articulate why. The selection is visible in what was burnt and what was left standing.

Quick revision

• Two independent senses: collective in the actor, and collective in the victim.
• Four combinations; the paper is mostly about group actor and group-selected victim.
• Group selection makes the harm larger than the victim, the victim interchangeable, and the violence repeatable.
• The law's answer is to build selection into the offence: section 103(2), section 117(4), the Atrocities Act section 3.
• Collective violence does not require a crowd, and a crowd committing a crime is not automatically collective violence.

Test yourself

1. Give the two senses in which violence may be collective, and one example of each without the other. Collective in the actor: a crowd of twenty fighting another twenty at a fair, where the victims are not group-selected. Collective in the victim: a single man killing a labourer because of his caste.

2. State the three consequences that follow from a victim being selected by group. The harm extends to every member of the group, who learn they are available for the same treatment; the victim is interchangeable, so nothing they could have done would have avoided it; and the violence is repeatable, because a selection principle does not exhaust itself.

3. Why is a gang robbery not collective violence for the purposes of this paper? Because the victim is selected by opportunity rather than by a group characteristic, and the violence is not directed at any group beyond the person robbed. The actor is a group, but only one of the two senses is satisfied.

4. Name three provisions in which Indian law builds group selection into the offence. Section 103(2) of the Bharatiya Nyaya Sanhita, murder by a group of five or more on a ground such as race, caste or community; section 117(4), grievous hurt on the same grounds; and section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.

Lynching. Killing by a crowd, in public, as a punishment, for an alleged wrong, without any process. Its distinguishing features are the claim of justification and the public performance. Indian law had no offence of this name until 2023; section 103(2) of the Sanhita now provides that where a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of the group is punishable with death or imprisonment for life.

Genocide. The most precise word on the list and the most misused. It means acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such. The defining element is the intent to destroy the group, not the number killed. India has ratified the Genocide Convention and has no domestic offence of genocide, which is a real gap and a good point in an answer.

Terrorism. Violence against persons or property intended to coerce a government or to intimidate a population. In Indian law it is defined in section 15 of the Unlawful Activities (Prevention) Act 1967 and in section 113 of the Sanhita. The distinguishing feature is not the cruelty but the audience: the victims are chosen to send a message to someone else.

Insurgency. Organised armed challenge to the authority of the State over territory, sustained over time, with a political programme and usually with a claim to govern. The Maoist conflict in Module II is the example this paper uses.

Distinctions

Worked example

Sort four Indian episodes with the three variables. The point is the method, and each episode is examined properly in its own chapter later.

A crowd in a market, after a rumour, attacks shops of one community for three hours until the police arrive. Low organisation, State absent and then reacting, no articulated objective. Riot, and charged under sections 189 to 193.

Over three days, groups arrive by vehicle with lists of addresses, and the police stations in the affected area record no arrests. High organisation, State complicit by omission at least, objective the subordination of a group. Pogrom, and the fact that Indian law has no such offence is why the question becomes one for a commission of inquiry rather than for a court.

Twenty-one agricultural labourers of one caste are shot in one night in a village where a wage dispute is running. Organisation present, State absent, objective the enforcement of an agrarian order. Massacre, charged as murder with common object, examined in Module II.

A man transporting cattle is stopped on a highway and beaten to death by a crowd who film it. Low organisation, claim of justification, public performance. Lynching, and since 2023 chargeable under section 103(2) as well as under section 103(1).

What it does NOT mean

These are not legal categories except where the Sanhita makes them so. Only riot and, since 2023, the section 103(2) form of lynching are offences by name. Pogrom, massacre, genocide and insurgency are analytical words, and an answer must not imply that a court can convict somebody of a pogrom.

Genocide is not a word for a very large massacre. It requires the intent to destroy a group as such. Using it loosely will lose marks with any examiner who knows the Convention.

And the categories are not exclusive. An episode can begin as a riot and become a pogrom when the organised element arrives on the second day. Several of the episodes in Module IV did exactly that, and saying so is a better answer than choosing one label.

Quick revision

• Three variables: organisation, the State's role, objective.
• Riot: section 191, force or violence by an unlawful assembly in prosecution of the common object; every member is guilty.
• Pogrom: organised, State complicit. Not an offence in Indian law.
• Massacre: scale and defencelessness, not motive.
• Lynching: crowd, public, claim of justification. Section 103(2), group of five or more acting in concert, on a ground such as race, caste, community, sex, place of birth, language or personal belief. Death or imprisonment for life for each member.
• Genocide: intent to destroy a group as such. India has ratified the Convention and has no domestic offence.
• Terrorism: section 15 of the UAPA and section 113 of the Sanhita. The audience is the point.
• Insurgency: sustained, armed, territorial, political.

Test yourself

1. Give the three variables that sort the seven forms. The degree of organisation, the role of the State, and the relation of the violence to a political objective.

2. What distinguishes a pogrom from a riot, and why does the distinction matter legally? Organisation and State complicity. It matters because Indian law has an offence of rioting and none of pogrom, so where the question is whether an episode was organised and whether the State participated, it cannot be answered in a criminal trial and becomes the business of a commission of inquiry.

3. State the elements of section 103(2) of the Bharatiya Nyaya Sanhita. A group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground. Each member of the group is punishable with death or imprisonment for life, and fine.

4. Why is it wrong to use genocide as a word for a large massacre? Because genocide is defined by the intent to destroy a national, ethnical, racial or religious group in whole or in part, as such. The number killed is not the defining element, and India in any event has no domestic offence of genocide despite having ratified the Convention.

Section 3(5) creates no offence. It is a rule of liability. A charge is always under section 3(5) read with the substantive section, and a court cannot convict of section 3(5) alone.

Broken down: section 190

Three elements, and the second half of the second is the whole difficulty.

1. An unlawful assembly, as section 189 defines it: five or more persons with one of the five common objects listed there.
2. The accused was a member of it at the time the offence was committed. Not before, not after: at the time.
3. The offence was committed in prosecution of the common object, or was one which the members knew to be likely to be committed in prosecution of that object.

The second limb of the third element is what makes section 190 so wide. It does not ask whether the accused intended the offence, or foresaw it, or would have approved it. It asks what the members of the assembly knew to be likely. Knowledge is attributed to the membership as a body, and every member carries it.

Distinctions

Worked example

Follow one set of facts through both.

Seven men go at night to a field to cut a crop they say is theirs. They carry sickles for the cutting and two of them carry lathis. The cultivator and his brother come out. In the struggle one of the seven strikes the brother on the head with a lathi and he dies.

Section 3(5). What was the common intention? On the evidence it was to cut the crop. Was there a shared intention to cause death, or such bodily injury as was likely to cause death? Almost certainly not; nothing suggests a plan to kill. So the man who struck is guilty of murder or culpable homicide, and the others are guilty of what they shared, which is the trespass and the mischief.

Section 190. Were the seven an unlawful assembly? Five or more, yes; and their common object was to take possession of property by criminal force, which is one of the five objects in section 189. Was the killing committed in prosecution of that object? Perhaps. Was it an offence the members knew to be likely to be committed in prosecution of the object? Seven men going at night with lathis to cut another man's crop, in a village where the cultivator lives beside the field, must be taken to know that resistance and a serious injury are likely. If the court so finds, all seven are guilty of the killing.

The defence, and it is the real one. The defence in every such trial is directed not at the doctrine but at the membership: that this accused was not there, or was there but had not joined the object, or had left before the killing. Section 190 is generous to the prosecution on liability and unforgiving on identification, and that is why so few riot prosecutions succeed.

What it does NOT mean

Mere presence is not membership. A person who is present at the scene without sharing the assembly's object is not a member of it, and section 190 does not touch them. The point is easy to state and very hard to prove either way.

Common intention is not the same as similar intention. Five men may each independently intend to beat the same person, and that is not a common intention: what is needed is a shared plan, however briefly formed.

And neither doctrine dispenses with proof of the offence. The offence still has to be established. What the doctrines dispense with is proof of who among the group did the particular act.

Limits and criticism

The criticism runs in both directions and a good answer gives both.

It is too wide. Section 190 convicts a person of murder on the basis of what other people knew to be likely. That is a long way from the moral foundation of criminal law, and the further the crowd is from the accused's own conduct, the harder it is to justify.

It is too narrow to be useful. It still requires five identified persons, proved to have been members at the time. Collective violence destroys identification by design. In the episodes examined in Modules II and IV, the doctrine's width made no difference at all, because the case failed at the stage of naming anybody.

Both criticisms are true, which is the honest conclusion and the one an examiner rewards.

Quick revision

• Both are constructive liability: liability for what another did.
• Section 3(5): criminal act by several persons in furtherance of the common intention of all; each liable as if alone. Two or more. Prior meeting of minds essential. Participation required. Creates no offence.
• Section 190: offence by any member of an unlawful assembly in prosecution of the common object, or as the members knew to be likely; every member at the time is guilty. Five or more. No prior plan needed. Membership suffices.
• Section 190 is the wider and the easier to prove on liability.
• Mere presence is not membership. Similar intention is not common intention.
• Criticised as too wide in principle and too narrow in practice, and both are true.

Test yourself

1. Quote the operative words of section 3(5) and section 190. Section 3(5): when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Section 190: 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.

2. Which is wider, and why? Section 190. It needs no prior meeting of minds, requires no participation by the accused beyond membership, and reaches offences the accused neither intended nor foresaw, provided the members of the assembly knew them to be likely.

3. Five men each independently decide to beat the same man and do so at the same moment. Is that a common intention? No. That is similar intention. Common intention requires a shared plan, a meeting of minds before the act, however briefly formed.

4. Give the two criticisms of section 190 and say why they are not inconsistent. That it is too wide, because it convicts on the basis of what others knew to be likely, and that it is too narrow in practice, because it still requires five identified members and identification is what a crowd destroys. They are not inconsistent because they operate at different points: the first concerns the rule of liability, the second concerns proof.

The Explanation, which decides most cases. An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. A procession that sets out lawfully and acquires an unlawful object on the way is within the section from the moment the object changes.

Membership, and the two offences in the section

Section 189(2) creates the offence: whoever, being aware of facts which render an assembly unlawful, intentionally joins that assembly or continues in it is a member of an unlawful assembly, punishable with imprisonment up to six months, or fine, or both.

Read the two elements of membership. Awareness of the facts, and intentionally joining or continuing. Both are required. A person who wanders into a crowd not knowing what it is about is not a member; a person who learns and stays is.

Section 189(3) creates the aggravated offence: whoever joins or continues in an unlawful assembly knowing that it has been commanded in the manner prescribed by law to disperse is punishable with imprisonment up to two years, or fine, or both. This is the hinge between the offence and the dispersal power, and it explains why the command to disperse in section 148 of the Suraksha Sanhita is not a formality: it is what converts a six-month offence into a two-year one.

Worked example

Four hundred people gather outside a tehsil office to protest an order of attachment. They are noisy. Nothing else happens for an hour.

Is this an unlawful assembly? Not yet. Four hundred is more than five, but the number is not the test. The question is the common object, and the object so far is to protest, which is not one of the five and is protected by article 19(1)(b).

Now the crowd decides to prevent the attachment party from entering. The object is now to resist the execution of a legal process, which is clause (b). The assembly has become unlawful, and the Explanation says expressly that it may become so after it assembled.

Now consider three people in the crowd.

• Anil came to protest, does not know about the attachment party, and is at the back. Not a member. He lacks awareness of the facts that render the assembly unlawful.
• Bhaskar heard the decision, agrees with it, and stays. A member under section 189(2), six months.
• Chetan hears the Executive Magistrate command the crowd to disperse under section 148 and stays anyway. Section 189(3), two years.

And now suppose stones are thrown by somebody and a clerk is injured. Every member of the assembly is guilty of rioting under section 191, and every member is guilty of the injury under section 190 if it was in prosecution of the object or was known to be likely. Anil is still not liable, because he was never a member.

Distinctions

What it does NOT mean

A large crowd is not an unlawful assembly. Number without object is nothing. This is the most common error in answers on this topic.

An unlawful object held by one person is not a common object. The object must be common to the assembly, which is why prosecutions so often fail: it is easy to prove that some people in a crowd wanted trouble and hard to prove that the assembly did.

And an assembly does not become lawful again by ceasing to be violent. Once the object is unlawful, membership is an offence until the person leaves.

Limits and criticism

The requirement of five is arbitrary and everybody knows it. Four people can do everything five can do, and the number survives only because it has been in the law since 1860. Against that, a number of some kind is needed, because the alternative is a rule that lets a magistrate decide when a group becomes a crowd.

The more serious criticism is about proof of the common object. The object is inferred from what the assembly did, which means that in practice the offence is established by the outcome and then read backwards into the object. That reasoning is circular, and courts are aware of it, which is why appellate courts so often reduce convictions under section 190 to convictions of the individuals actually identified.

Quick revision

• Five or more persons and a common object which is one of five.
• The five: overawe the Government or a public servant; resist a law or legal process; commit mischief, criminal trespass or other offence; by criminal force take property or deprive of a right of way, water or an incorporeal right, or enforce a right or supposed right; by criminal force compel a person to do what he is not bound to do.
• Explanation: an assembly lawful when it assembled may become unlawful.
• Section 189(2): membership, requires awareness of the facts and intentionally joining or continuing. Six months.
• Section 189(3): continuing after a lawful command to disperse. Two years.
• Section 189 is the foundation: rioting, section 190 liability and the dispersal powers all depend on it.
• Number without object is nothing.

Test yourself

1. List the five common objects in section 189(1). To overawe by criminal force the Government, Parliament, a State Legislature or a public servant in the exercise of lawful power; to resist the execution of any law or legal process; to commit any mischief or criminal trespass or other offence; by criminal force to take possession of property or to deprive a person of a right of way, of water or of an incorporeal right, or to enforce any right or supposed right; and by criminal force to compel a person to do what he is not legally bound to do or to omit what he is legally entitled to do.

2. What are the two elements of membership under section 189(2)? Awareness of the facts that render the assembly unlawful, and intentionally joining or continuing in it.

3. Why does the command to disperse matter to the offence and not only to the police? Because section 189(3) makes it an offence carrying two years, instead of six months, to join or continue in an unlawful assembly knowing that it has been commanded in the manner prescribed by law to disperse.

4. What is the circularity in proving a common object, and how do courts respond to it? The object is inferred from what the assembly did, so the outcome is used to establish the object which then makes every member liable for the outcome. Appellate courts respond by scrutinising membership closely and frequently confining convictions to the individuals actually identified as having acted.

The two offences nobody teaches

Two provisions sit either side of rioting and are almost never covered, which makes them useful in an answer.

Section 192, wanton provocation. Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person, intending or knowing it to be likely that the provocation will cause the offence of rioting to be committed, is punished: one year if rioting is in fact committed in consequence, and six months if it is not.

This is the offence for the person who starts a riot without being in it. It requires an illegal act as the provocation, which is its limit: an inflammatory speech that is not itself illegal falls outside section 192, and has to be charged under section 196 or 197 instead.

Section 193, liability of the owner or occupier of the land. Whenever an unlawful assembly or a riot takes place, the owner or occupier of the land on which it is held, and any person claiming an interest in that land, is punishable with a fine not exceeding one thousand rupees if he, or his agent or manager, knowing that the offence is being or has been committed, or having reason to believe it likely, does not give the earliest notice in his power to the officer in charge of the nearest police station.

Section 193 is a rare thing in Indian criminal law: a duty to report imposed on a person who has done nothing. It exists because a riot needs a place, and the person who controls the place is usually the first to know.

Worked example

Two hundred people gather at a temple ground after a dispute over a procession route. The ground belongs to a trust whose manager is present. After an hour, the crowd decides to force its way down the disputed road. Forty of them carry lathis. Somebody throws a stone and a shop shutter is damaged.

• Unlawful assembly, from the moment the object became forcing the route: clause (e) of section 189(1), compelling a person to do what he is not legally bound to do, and clause (c).
• Rioting, from the moment the stone was thrown, because force was used by a member in prosecution of the common object. All two hundred are rioters under section 191(1).
• Section 191(3) for the forty who carried lathis: five years, not two.
• Section 193 for the trust's manager, if he knew or had reason to believe and did not give the earliest notice in his power to the nearest police station. A fine up to one thousand rupees.
• Section 192 for the man who, an hour earlier, tore down a notice board fixing the route, if he did so knowing that rioting was a likely consequence. One year, because rioting did follow.
• The damage to the shutter is mischief in its own right and, if the shop is public property, an offence under the Prevention of Damage to Public Property Act 1984.

Six provisions, one hour, one crowd. That is what a good answer on a riot problem looks like.

Distinctions

What it does NOT mean

Rioting is not a synonym for a violent crowd. Without an unlawful assembly there is no rioting, however violent the crowd. A hundred people fighting each other in a public place with no common object commit affray, not rioting.

Section 191(3) does not require the weapon to be used. Being armed is enough. This is why the sentence differs between members of the same crowd.

And rioting is not the offence for the killing. If a person is killed in a riot, the killing is murder or culpable homicide, and section 190 makes every member liable for it if it was in prosecution of the common object or known to be likely. Rioting is charged in addition, not instead.

Quick revision

• Section 191(1): force or violence used by an unlawful assembly or any member of it, in prosecution of the common object; every member is guilty of rioting.
• 191(2): two years, or fine, or both. 191(3): five years if armed with a deadly weapon, and it punishes the individual who is armed.
• Section 192: wanton provocation by an illegal act, intending or knowing rioting likely. One year if rioting follows, six months if not.
• Section 193: the owner or occupier of the land, or a person claiming an interest in it, fined up to one thousand rupees for failing to give the earliest notice in his power to the nearest police station.
• Rioting requires an unlawful assembly. Affray does not, and needs only two.
• Rioting is charged in addition to the substantive offences, never instead of them.

Test yourself

1. State the four elements of rioting. An unlawful assembly; force or violence used by it or by any member of it; used in prosecution of the common object; whereupon every member of the assembly is guilty.

2. Forty of a crowd of two hundred carry lathis and nobody uses one. What is the effect? The forty are liable under section 191(3) to five years, because that sub-section punishes the rioter who is armed and does not require the weapon to be used. The other one hundred and sixty face two years under section 191(2).

3. What does section 192 require that an inflammatory speech usually does not supply? An illegal act as the provocation. Section 192 punishes provocation given by doing something illegal, so a speech that is not itself an offence falls outside it and must be charged under section 196 or 197.

4. Who does section 193 punish, and for what? The owner or occupier of the land on which the unlawful assembly or riot takes place, and any person claiming an interest in it, for failing to give the earliest notice in his power to the officer in charge of the nearest police station, knowing the offence is being or has been committed or having reason to believe it likely. The penalty is a fine not exceeding one thousand rupees.

Worked example

Take one place, one evening, four scenarios.

1. Two men fight outside a cinema over a queue. Two or more, fighting, public place, public peace disturbed. Affray. One month.
2. One man beats another outside the cinema; the other does not resist. No fight. Not affray, but assault and criminal force under sections 129 to 131, and hurt if injury follows.
3. Two men fight in the courtyard of a private house, watched by the family. Not a public place. Not affray, though every other offence is available.
4. Sixty men, having decided to prevent a screening, force their way in and break the seats. An unlawful assembly with the object of committing mischief and of compelling by criminal force. Force used. Rioting, two years, and five for those armed, and every one of the sixty is a rioter.

Scenarios one and four are both violence in the same street on the same evening. The law treats one as a nuisance and the other as a threat to public order, and the reason is the common object.

What it does NOT mean

Affray is not a lesser form of rioting. They are different offences with different elements. A crowd of a hundred fighting each other without a common object commits affray, not rioting, however alarming it is.

A public place is not the same as a place open to the public. The expression covers roads, markets and public grounds. Whether a particular place is public is a question of fact, and the test used is whether the public have access to it as of right or as a matter of practice, not whether it is owned by the State.

And affray does not absorb the assault. The person who struck a blow is liable for that too. Affray punishes the disturbance; the assault is punished separately.

Quick revision

• Section 194(1): two or more persons, by fighting, in a public place, disturb the public peace.
• Section 194(2): one month, or a fine up to one thousand rupees, or both.
• Three exclusions: a one-sided beating is not a fight; words are not a fight; a private place is not a public place.
• Compared with rioting: no common object, no minimum of five, but the place must be public and the fight must be mutual.
• The gap between one month and two years measures the presence of a common object, not the size of the violence.

Test yourself

1. State the elements of affray. Two or more persons, fighting, in a public place, thereby disturbing the public peace.

2. Why is a one-sided beating in a public place not an affray? Because there is no fight. The section requires persons fighting, which means an exchange, and a person who does not resist is not fighting.

3. Give the three main differences between affray and rioting. Affray needs two persons and rioting five; affray requires no common object and rioting cannot exist without one; affray must occur in a public place and rioting may occur anywhere.

4. What does the difference in punishment between the two offences tell you about what the criminal law treats as serious? That organisation around a shared object, rather than the scale of the violence, is what makes collective violence grave in law. A hundred people fighting without a common object attract one month; five with a common object attract two years.

The punishment is imprisonment up to three years, or fine, or both.

Section 196(2) raises it to five years, and fine, where the offence is committed in a place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies.

Section 197 is the neighbouring offence. It punishes imputations and assertions prejudicial to national integration: making or publishing an 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 or uphold the sovereignty and integrity of India, and the connected forms.

Broken down

The elements that decide cases are these.

The conduct is wide. Words, signs, visible representations, electronic communication, or otherwise. There is no medium that escapes.

"Promotes or attempts to promote" reaches the attempt. The enmity need not follow. This is what makes section 196(1)(a) usable before anything has happened, and also what makes it dangerous.

Clause (b) requires an effect, or a likely one. It is not enough that an act is prejudicial to harmony; it must disturb or be likely to disturb the public tranquillity. That requirement is the main limit inside the section.

Clause (c) is the training offence and is almost never charged. It reaches the organised drill or movement intended to train participants in the use of force against a group. Anyone writing on organised communal violence should know it exists.

Section 196(2) locates the aggravation in the place. The same words in a place of worship carry five years rather than three, because that is where an audience is assembled and receptive.

Distinctions

Worked example

A speaker at a public meeting says that members of a named community are, by their faith, incapable of loyalty to India, and that the audience should be ready to defend themselves. The speech is recorded and circulated on a messaging service. A week later a crowd attacks shops of that community in the same town.

• The imputation of disloyalty is section 197 in terms: an assertion that a class of persons cannot, by reason of being members of a community, bear true faith and allegiance to the Constitution.
• The promotion of enmity is section 196(1)(a), and the circulation on the messaging service is within "electronic communication".
• The exhortation to be ready may be section 196(1)(c) if there was any organised drill, and section 196(1)(b) in any event if the act is prejudicial to harmony and likely to disturb public tranquillity.
• If the meeting was held in a place of worship, section 196(2) applies and the maximum rises to five years.
• The attack a week later is a separate matter: sections 189 to 193 for those in the crowd, and the speaker is not liable for it under section 196, which punishes the speech and not the riot. To make the speaker liable for the riot the prosecution would need section 192, which requires an illegal act as the provocation, or abetment.

That last point is the one students miss. Section 196 punishes what was said. It does not make the speaker a rioter.

What it does NOT mean

"Hate speech" is not an offence in Indian law. There is no provision of that name. The phrase describes a group of offences, of which sections 196, 197, 299, 300, 301, 302 and 356 are the principal ones, and an answer should name provisions rather than the phrase.

Section 196 does not require enmity to result. It reaches the attempt, and that is deliberate.

And it is not confined to religion. The grounds are religion, race, place of birth, residence, language, caste or community or any other ground whatsoever, and the last words have been used to reach regional and linguistic hostility.

Quick revision

• Section 196(1)(a): promotes or attempts to promote disharmony or feelings of enmity, hatred or ill-will between groups, by any medium including electronic communication.
• 196(1)(b): an act prejudicial to harmony which disturbs or is likely to disturb the public tranquillity.
• 196(1)(c): organising or joining a drill or movement to train the use of force against a group.
• Three years, and five under section 196(2) in a place of worship or a religious assembly.
• Section 197: imputations that a class cannot bear true faith and allegiance to the Constitution.
• Section 196 punishes the speech, not the riot. To reach the speaker for the riot you need section 192 or abetment.
• The standing objection: a law that punishes speech for what a crowd might do gives the crowd a veto.

Test yourself

1. State the three clauses of section 196(1). Promoting or attempting to promote disharmony or feelings of enmity, hatred or ill-will between groups by any medium; committing an act prejudicial to the maintenance of harmony which disturbs or is likely to disturb the public tranquillity; and organising or participating in a drill, movement or similar activity intended to train the use of criminal force against a group.

2. What raises the sentence to five years? Commission of the offence in a place of worship or in an assembly engaged in the performance of religious worship or religious ceremonies, under section 196(2).

3. Distinguish section 196 from section 197. Section 196 is directed at relations between groups, punishing the promotion of enmity or an act prejudicial to harmony. Section 197 is directed at the loyalty of a class of persons, punishing the imputation that they cannot, by reason of their membership of a group, bear true faith and allegiance to the Constitution or uphold the sovereignty and integrity of India.

4. A speech is followed a week later by a riot. Is the speaker a rioter? Not under section 196, which punishes the speech and not the riot. Liability for the riot would require section 192, which needs an illegal act as the provocation, or the ordinary law of abetment.

Then each member of such group is punished with death or imprisonment for life, and fine.

The fourth element is the innovation and the difficulty. The prosecution must prove why the victim was chosen. That is a question about the crowd's reason, and reasons are hard to prove. In practice it will be proved by what the crowd said, by what was recorded, by what was left alone, and by the surrounding history.

"Personal belief" is worth noticing. It is wider than religion and reaches a killing over what a person is thought to eat, to believe or to have done in private.

Section 117(4): the same structure for grievous hurt

When a group of five or more persons acting in concert causes grievous hurt to a person on the same grounds, each member of the group is guilty of causing grievous hurt and is punishable with imprisonment up to seven years and fine.

This matters because most lynchings do not end in death. The victim survives, and before 2023 the prosecution fell back on the ordinary provisions for hurt with the group liability sections. Section 117(4) gives the survivor's case the same structure as the deceased's.

Worked example

A man transporting cattle is stopped on a highway by about twenty people. He is accused of a purpose they attribute to him because of his community. He is beaten for forty minutes. Some of the crowd film it and the recording circulates the same evening. He dies in hospital two days later. Eleven people are eventually identified from the recording.

Charges.

• Section 103(2), against all eleven: a group of five or more acting in concert, murder, on the ground of community. Each of the eleven faces death or imprisonment for life, and none of them has to be shown to have struck the fatal blow.
• Sections 189 to 191, unlawful assembly and rioting, since the crowd had a common object and used force.
• Section 196, if what was said during or before the attack promoted enmity between communities.
• The recording is evidence and, in the hands of those who circulated it, may be a separate matter under the information technology law.

Where the case will actually be decided. Not on section 103(2), which is straightforward once membership is proved, but on the identification of the eleven, on whether the recording is proved to be authentic and unaltered, and on whether the witnesses hold. Naming the offence does not solve any of those.

Distinctions

What it does NOT mean

The word "lynching" does not appear in section 103(2). The sub-section describes the conduct without naming it. An answer should describe the elements rather than assume the label is statutory.

It does not displace group liability. Sections 3(5) and 190 remain available and are still used, particularly where the number is fewer than five or the ground of selection cannot be proved.

And it does not answer the enforcement problem. Every difficulty this book records about riot prosecutions applies here: registration, identification, the witness who must go on living there, and the delay. A new offence changes what can be charged and changes nothing about what can be proved.

Limits and criticism

The Supreme Court's directions on lynching, given in 2018 and examined in Module IV, were preventive, remedial and punitive, and the punitive limb asked Parliament to create a separate offence. Section 103(2) is the answer to that request, five years later.

Two criticisms survive it. The sentence is unchanged, so the provision adds no punishment to what murder already carried. And the requirement of five or more leaves a killing by three or four on the same ground outside the sub-section entirely, which is an arbitrary line in a provision whose whole purpose is to describe the wrong accurately.

Quick revision

• Section 103(2): group of five or more acting in concert, commits murder, on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground. Each member punished with death or imprisonment for life, and fine.
• Section 117(4): the same structure for grievous hurt, seven years and fine.
• Before 2023 there was no offence of this name; a lynching was charged as murder with group liability.
• The innovation is that the ground of selection is an element, so it appears on the record.
• Criticisms: the sentence is unchanged, and the threshold of five is arbitrary.
• Naming the offence does nothing about registration, identification or witnesses.

Test yourself

1. State the four elements of section 103(2). A group of five or more persons; acting in concert; commits murder; on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground. Each member is then punished with death or imprisonment for life and fine.

2. What does section 103(2) add that section 103(1) with group liability did not? It makes the ground of selection an element that must be proved and found, so the record of the case states what the killing actually was, and it punishes each member of the group in terms without requiring proof of who struck the fatal blow.

3. Four men beat a fifth to death because of his community. Does section 103(2) apply? No. The sub-section requires a group of five or more. The killing is murder under section 103(1), with liability distributed under section 3(5), and the ground of selection has no statutory effect on the sentence.

4. Give the two standing criticisms of the new sub-section. That it leaves the sentence exactly where murder already had it, so its effect is expressive rather than operative; and that the threshold of five or more is arbitrary in a provision whose purpose is to describe the wrong accurately.

Section 4 is mischief causing damage to public property by fire or explosive substance, punishable with rigorous imprisonment of not less than one year and up to ten years, and fine, with a proviso permitting a shorter term for special reasons recorded in the judgment.

Section 5 is the bail provision, and it is the reason the Act matters in practice. It is one sentence long: no person accused or convicted of an offence under section 3 or 4 shall, if in custody, be released on bail or on his own bond unless the prosecution has been given an opportunity to oppose the application.

Read what it does not say, because this is where answers go wrong. It does not require the court to be satisfied that there are reasonable grounds for believing the accused is not guilty. That much stronger condition belongs to the special security statutes, section 43D(5) of the Unlawful Activities (Prevention) Act 1967 and section 21 of the Maharashtra Control of Organised Crime Act 1999, and importing it here would overstate the 1984 Act considerably. All section 5 requires is that the prosecution be heard.

Section 6 is a saving, and section 7 the repeal and saving of the predecessor Ordinance.

Note the two minimum sentences. Section 3(2) carries a minimum of six months and section 4 a minimum of one year, and in both the court may, for special reasons to be recorded, impose less. A student writing on the adequacy of the criminal law's response to riot damage should notice that Parliament thought minimum sentences necessary here in 1984.

Worked example

During a two-day disturbance, a crowd burns four State transport buses, damages a booking office, cuts a telephone cable and breaks the windows of a private shop.

• The buses. Public transport, and burnt. Section 4, one to ten years, and section 3(2) in the alternative.
• The booking office. Property used in connection with a means of public transport, within section 3(2). Six months to five years.
• The telephone cable. Telecommunications, within section 3(2).
• The shop. Not public property. Ordinary mischief under the general penal law, and no benefit from the 1984 Act.
• Everybody in the crowd. If they formed an unlawful assembly and the damage was in prosecution of its common object, or was known to be likely, every member is liable for the offences under section 190 of the Sanhita.
• Bail. Because the charges include sections 3 and 4 of the 1984 Act, section 5 applies: the accused cannot be released on bail or on his own bond, while in custody, unless the prosecution has been given an opportunity to oppose the application.

The last item is what changes the case. Everything else on the list is a sentence at the end of a trial that may take years. Section 5 operates in the first week, and although it is a modest requirement it is enough to keep a routine bail application from being disposed of before the State has said anything.

What it does NOT mean

The Act does not create a right to compensation. It is a penal statute. The recovery of the value of what was destroyed comes from the directions in the Supreme Court's suo motu proceedings and from the victim compensation scheme, not from this Act.

It does not reach private property. A riot that burns houses is not touched by this Act at all, and the houses in Module IV are private. That is a real limit and it is worth stating: the statute protects the bus and not the home.

And section 5 is not a bar on bail, nor is it the stringent bail provision of the security statutes. It requires only that the prosecution be given an opportunity to oppose. There is no statutory presumption against release and no requirement that the court find reasonable grounds for believing the accused not guilty.

Quick revision

• Seven sections. Section 2 defines public property by ownership, possession or control by Government, a local authority, a statutory corporation, a Government company or a substantially Government-financed body.
• Section 3(1): mischief to public property, up to five years and fine.
• Section 3(2): water, light, power or energy installations, oil installations, sewage works, mines, factories, public transport, telecommunications and property connected with them. Rigorous imprisonment, six months to five years, and fine, subject to a proviso for a shorter term for reasons recorded.
• Section 4: by fire or explosive substance, rigorous imprisonment one to ten years and fine, subject to a proviso for a shorter term for special reasons recorded.
• Section 5: a person accused or convicted under section 3 or 4, if in custody, is not released on bail or on his own bond unless the prosecution has had an opportunity to oppose. Nothing more; the stronger bail bar belongs to the UAPA and MCOCA.
• The Act protects public property only. Private houses are outside it.

Test yourself

1. Why did Parliament pass a separate Act when mischief was already an offence? Because public property has no complainant with a personal stake, so damage often goes unreported, and because ordinary mischief is graded by the value of the damage, which is the wrong measure for property that exists for everybody. The 1984 Act grades by the kind of property and by the means used.

2. State the sentences under sections 3(1), 3(2) and 4. Up to five years and fine; rigorous imprisonment of not less than six months and up to five years and fine; and rigorous imprisonment of not less than one year and up to ten years and fine. Both minimum sentences carry a proviso allowing the court to award less for reasons recorded in the judgment.

3. What does section 5 require before bail is granted, and what does it not require? It requires only that the prosecution be given an opportunity to oppose the application for release, and it applies to a person accused or convicted who is in custody. It does not require the court to be satisfied that there are reasonable grounds for believing the accused not guilty; that condition belongs to section 43D(5) of the UAPA and section 21 of MCOCA.

4. A crowd burns eleven private houses. What does the 1984 Act do about it? Nothing. The Act applies only to public property as defined in section 2, so private houses fall outside it entirely and the damage is ordinary mischief under the general penal law.

The effect of the command. It is thereupon the duty of the members to disperse. That duty is what section 189(3) of the Nyaya Sanhita enforces, raising the offence of remaining from six months to two years.

Step two: civil force, section 148(2)

Force may be used in two situations.

• The assembly, on being commanded, does not disperse; or
• without being commanded, it conducts itself so as to show a determination not to disperse.

The Magistrate or officer may then disperse it by force, and may require the assistance of any person, provided that person is not an officer or member of the armed forces acting as such. Members of the assembly may be arrested and confined, either to disperse it or so that they may be punished according to law.

The second situation is worth noticing. A crowd that is plainly determined not to disperse may be dispersed without a command having been given. That is a practical concession, and it is also the gap through which most disputed firings are justified after the event.

Step three: the armed forces, section 149

Two conditions must both be satisfied. The assembly cannot otherwise be dispersed, and it is necessary for the public security that it be dispersed.

Who decides. The District Magistrate, or any other Executive Magistrate authorised by him who is present. Not any Magistrate, and not an absent one.

What the officer of the armed forces must do. Section 149(3) is the provision to quote. 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 those persons.

That sentence is the statutory rule of minimum force, and it is the standard against which every firing in this book is measured.

Step four: without a Magistrate, section 150

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 it and may arrest and confine persons forming part of it.

And the duty that follows. 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 he shall continue.

Section 150 is the narrowest of the four, and the condition that no Magistrate can be communicated with is the one that is examined afterwards.

Step five, which is not a step: the protection, section 151

Sanction to prosecute. No prosecution for any act purporting to be done under sections 148, 149 or 150 may be instituted in any criminal court except with the sanction of the Central Government where the person is an officer or member of the armed forces, and of the State Government in any other case.

And a substantive protection. No Executive Magistrate or police officer acting under those sections in good faith; no person doing an act in good faith in compliance with a requisition under section 148 or 149; no officer of the armed forces acting under section 150 in good faith; and no member of the armed forces doing an act in obedience to an order he was bound to obey, shall be deemed to have committed an offence.

Read the words "purporting to be done" and "in good faith" together. The sanction requirement is wide: it covers anything purporting to be done under the sections, so even a firing that turns out to be unlawful needs sanction before it can be prosecuted. The substantive protection is narrower: it requires good faith. A student should be able to state both and say which is which, because the first is the practical obstacle and the second is the legal defence.

Worked example

A crowd of about eight hundred blocks a State highway. Stones are thrown at vehicles.

• A sub-inspector is the senior officer present, the station house officer being elsewhere. He may command the assembly to disperse under section 148(1), because the section names an officer not below sub-inspector in the absence of the officer in charge.
• The crowd does not disperse. He may disperse it by force under section 148(2), and may call on bystanders to assist, but not on any member of the armed forces.
• The crowd cannot be dispersed and the highway is a lifeline. Only the District Magistrate, or an Executive Magistrate authorised by him and present, may requisition the armed forces under section 149.
• The officer commanding must use as little force and do as little injury as is consistent with dispersing the crowd and making the arrests. That is section 149(3), and it is the standard he will be judged by.
• Suppose instead that the sub-inspector orders firing without any command having been given and without the crowd showing a determination not to disperse. The firing is not an act under section 148. Sanction under section 151 will still be needed, because the act purports to be done under the section, but the substantive protection requires good faith, and a firing outside the statutory conditions will not easily be shown to be in good faith.

What it does NOT mean

The ladder is not a formality. Skipping a step does not merely make the action irregular; it takes the action outside the section, and with it the good-faith protection.

Section 149 is not a general power to call the army. It requires that the assembly cannot otherwise be dispersed, that public security requires dispersal, and that the requisition comes from the District Magistrate or a present authorised Magistrate.

And section 151 is not immunity. It is a sanction requirement plus a good-faith defence. An officer who fires without cause is not protected; he is protected from being prosecuted without the Government's sanction, which in practice is a very substantial protection, and that difference is the criticism.

Quick revision

• 148(1): command to disperse, by an Executive Magistrate, the officer in charge, or in his absence a police officer not below sub-inspector. Applies to an unlawful assembly or any assembly of five or more likely to disturb the public peace.
• 148(2): civil force, if the assembly does not disperse on command or shows a determination not to disperse. Bystanders may be required to assist; members of the armed forces may not.
• 149: armed forces, on the requisition of the District Magistrate or a present authorised Executive Magistrate, where the assembly cannot otherwise be dispersed and public security requires it. 149(3): as little force and as little injury as is consistent with the object.
• 150: a commissioned or gazetted officer may act where public security is manifestly endangered and no Magistrate can be communicated with, and must submit to a Magistrate as soon as it is practicable.
• 151: sanction of the Central Government for the armed forces, of the State Government otherwise, for anything purporting to be done under 148 to 150; and no offence is committed by those acting in good faith.

Test yourself

1. Who may command an assembly to disperse, and what kinds of assembly may be commanded? An Executive Magistrate, the officer in charge of a police station, or in his absence any police officer not below the rank of sub-inspector. The assemblies are an unlawful assembly, and any assembly of five or more persons likely to cause a disturbance of the public peace.

2. In what two situations may civil force be used under section 148(2)? Where the assembly, having been commanded, does not disperse; and where, without being commanded, it conducts itself in a manner showing a determination not to disperse.

3. State the rule of minimum force and where it is found. Section 149(3). The officer of the armed forces 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 the persons concerned.

4. Distinguish the two protections in section 151. The first is procedural and wide: no prosecution for anything purporting to be done under sections 148 to 150 without the sanction of the Central Government for the armed forces or the State Government otherwise. The second is substantive and narrower: those acting in good faith under those sections are deemed not to have committed an offence.

Four more features that are regularly examined.

• Sub-section (2): the order may be passed ex parte in an emergency, or where the circumstances do not admit of serving notice in due time.
• Sub-section (3): it may be directed to a particular individual, to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. That last limb is what makes the section a crowd-control power rather than a power over named persons.
• Sub-section (4): no order shall remain in force more than two months. The State Government may, by notification, extend it for a further period not exceeding six months where it considers this necessary for preventing danger to human life, health or safety, or for preventing a riot or affray.
• Sub-sections (5) to (7): any Magistrate may, on his own motion or on the application of a person aggrieved, rescind or alter the order; the State Government may do the same for an order made under the proviso; and where such an application is received the Magistrate or the State Government shall afford the applicant an early opportunity of appearing before them.

The duty in sub-section (7) is the answer to the standing complaint that an ex parte order leaves the affected person with no remedy. There is a remedy; it requires the person to ask for it.

Section 37 of the Maharashtra Police Act 1951

A Mumbai student is examined on the State Act as much as on the Sanhita, and section 37 is the provision under which processions in Bombay have been regulated for seventy years.

Who. The Commissioner and the District Magistrate, in areas under their respective charges.

When. Whenever, and for such time as, he considers necessary for the preservation of public peace or public safety.

How. By a notification publicly promulgated or addressed to individuals.

What may be prohibited, under sub-section (1). The carrying of arms, cudgels, swords, spears, bludgeons, guns, knives, sticks or lathis, or any other article capable of being used for causing physical violence; the carrying of any corrosive substance or explosives; the carrying, collection and preparation of stones or other missiles or the means of casting them; the exhibition of persons or corpses or figures or effigies; the public utterance of cries, the singing of songs, the playing of music; and the delivery of harangues, the use of gestures or mimetic representations, and the preparation, exhibition or dissemination of pictures, symbols, placards or any other object which in the opinion of the authority offends against decency or morality or undermines the security of, or tends to overthrow, the State.

Sub-section (2): a person going armed in contravention may be disarmed by any police officer and the article forfeited to the State Government.

Sub-section (3): the authority may also, by order in writing, prohibit any assembly or procession for so long as it considers the prohibition necessary for the preservation of public order, provided that no such prohibition shall remain in force for more than fifteen days without the sanction of the State Government.

Sub-section (4): it may by public notice temporarily reserve any street or public place for a public purpose and prohibit entry except on prescribed conditions.

Section 135 supplies the penalty for contravening an order under section 37, 39 or 40.

Two provisions that sit beside them

Section 164 is the other preventive order, and it answers a different mischief. Where an Executive Magistrate is satisfied, from a police report or other information, that a dispute likely to cause a breach of the peace exists concerning any land or water or its boundaries within his jurisdiction, he shall make an order in writing stating the grounds of his satisfaction and requiring the parties to attend his court and to file written statements of their claims as respects actual possession. "Land or water" includes buildings, markets, fisheries, crops and other produce, and the rents or profits of such property. A copy is served as a summons and at least one copy is affixed at or near the subject of the dispute.

The difference from section 163 is worth stating. Section 163 forbids an act; section 164 takes the dispute into court and decides who was in possession, so that the parties are left to a civil suit for title. It is the provision that fits an agrarian dispute, which is why it belongs in a paper on collective violence: a very large share of rural violence is a boundary dispute that nobody adjudicated.

Section 169 puts a duty on every police officer receiving information of a design to commit a cognizable offence to communicate it to the officer to whom he is subordinate and to any other officer whose duty it is to prevent or take cognizance of it. It is short, it creates no offence, and it is the statutory form of the finding every commission of inquiry into a riot has made: somebody knew, and the information did not travel.

Distinctions

Worked example

Two processions are expected on the same day along routes that cross. The Commissioner of Police in Mumbai and the District Magistrate in an adjoining district each have to act.

In Mumbai. The Commissioner may, under section 37(1), prohibit the carrying of lathis and the collection of stones along the route, and may prohibit harangues. Under section 37(3) he may prohibit the procession altogether, but not for more than fifteen days without the sanction of the State Government. Under section 37(4) he may reserve the crossing itself and prohibit entry.

In the district. The District Magistrate may make an order under section 163 of the Suraksha Sanhita directing persons frequenting the crossing to abstain from assembling there. The order must be in writing and state the material facts, may be ex parte, lasts two months, and may be extended by the State Government for up to six.

And if the order is defied. Remaining in an assembly after a lawful command to disperse is an offence under section 189(3) of the Nyaya Sanhita, two years. Contravening a section 37 order attracts section 135 of the Maharashtra Act. And the assembly, if its object is now to resist the execution of a legal process, is an unlawful assembly under section 189(1)(b), which brings the whole of the previous three chapters into play.

What it does NOT mean

A prohibitory order is not a ban on protest. It is a power limited by purpose, by form, by duration and by a remedy. Where it is used to prevent all assembly in a large area for months, that use is challengeable, and the two-month limit in sub-section (4) exists precisely because the predecessor provision was used that way.

The order need not be published to be valid against an individual. Sub-section (3) allows it to be directed at a particular individual, and it is served like a summons. Publication matters for the third limb, the public generally.

And section 37 of the Maharashtra Act is not a replica of section 163. It is a police power, not a magisterial one, exercised by notification rather than by a reasoned written order, and its fifteen-day limit on prohibiting an assembly is a different check from the Sanhita's two months.

Quick revision

• Section 163: District Magistrate, Sub-divisional Magistrate, or specially empowered Executive Magistrate; written order stating material facts; to prevent obstruction, danger to life or health, disturbance of public tranquillity, a riot or affray.
• May be ex parte; may be directed at an individual, at residents of an area, or at the public frequenting a place.
• Two months, extendable by the State Government to six; rescindable on application, with an early hearing required.
• Maharashtra Police Act section 37: Commissioner or District Magistrate, by notification, for public peace or public safety; weapons, missiles, effigies, cries, songs, music, harangues.
• 37(3): may prohibit any assembly or procession, but not beyond fifteen days without State Government sanction. 37(4): reserve a street or public place.
• Section 135 of the Maharashtra Act is the penalty for contravening an order under section 37, 39 or 40.

Test yourself

1. Who may pass an order under section 163, and what two conditions must be satisfied? A District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government. He must be of opinion that there is sufficient ground for proceeding and that immediate prevention or speedy remedy is desirable.

2. How long may an order under section 163 last? Two months from the making of it, extendable by the State Government by notification for a further period not exceeding six months, where it considers that necessary for preventing danger to human life, health or safety or for preventing a riot or affray.

3. What limit does the Maharashtra Police Act place on prohibiting a procession? Under section 37(3) the prohibition may not remain in force for more than fifteen days without the sanction of the State Government.

4. Why is the requirement to state the material facts more than a formality? Because it is the only element of the section that makes an order reviewable. An order that recites no facts cannot be tested against the purposes for which the power exists, and the remedy of rescission under sub-sections (5) to (7) would have nothing to work on.

Section 4, administration. The administration of the police throughout the general police district vests in an Inspector-General, with such Deputy and Assistant Inspectors-General as the State Government thinks fit; and within the local jurisdiction of the Magistrate of the district it vests, under the general control and direction of that Magistrate, in a District Superintendent.

Read sections 3 and 4 together and the whole of Prakash Singh is visible. Superintendence sits with the political executive; administration sits with the Inspector-General; and the district force operates under the general control of the District Magistrate. What is missing is any body between the political executive and the force, and the first of the seven directions in Prakash Singh is precisely the creation of one.

Section 12, rules. The Inspector-General may, subject to the approval of the State Government, frame orders and rules on the organisation, classification and distribution of the force, the places where members shall reside, the services to be performed, inspection, arms and accoutrements, the collecting and communicating of intelligence, and all other matters he deems expedient for preventing abuse or neglect of duty and for rendering the force efficient.

Section 23, duties. Set out above. Note that the duty to prevent offences and public nuisances comes before the duty to detect and bring offenders to justice. The statute puts prevention first, and every commission of inquiry in Module IV finds that the force treated it as last.

Section 15: the collective punishment nobody teaches

Section 15, quartering of additional police in disturbed or dangerous districts, is the colonial state's own answer to collective violence, and it is still on the statute book.

Sub-section (1). The State Government may, by proclamation notified in the Official Gazette, declare that an area has been found to be in a disturbed or dangerous state, or that from the conduct of the inhabitants of the area, or of any class or section of them, it is expedient to increase the number of police.

Sub-section (2). The Inspector-General, or an officer authorised by the State Government, may then with the Government's sanction quarter additional police in the area.

Sub-section (3). The cost of the additional force is borne by the inhabitants of the area.

Sub-section (4). The Magistrate of the district apportions the cost among the liable inhabitants according to his judgment of their respective means.

Sub-section (5). The State Government may by order exempt any persons or any class or section of the inhabitants.

Sub-section (6). The proclamation must state the period for which it is to remain in force, and may be withdrawn or continued.

The Explanation brings in absentee landlords: "inhabitants" includes persons who occupy or hold land or other immovable property in the area, and landlords who collect rents direct from raiyats or occupiers there, notwithstanding that they do not actually reside in the area.

Why this section is worth a paragraph in any answer on remedies. Read sub-sections (1), (3) and (5) together. The State may declare an area disturbed because of the conduct of a class or section of its inhabitants, quarter police there at the inhabitants' expense, and then exempt a class or section from paying. That is a power to fine one community for the disorder of a district, and it survives in the law of 1861 without amendment. Whether such a power can survive articles 14 and 21 as they now stand is a question worth raising, and it is the kind of point that separates a first-class answer from a competent one.

Sections 30 and 31: processions

Section 30(1). The District Superintendent or Assistant District Superintendent may, as occasion requires, direct the conduct of all assemblies and processions on public roads, streets or thoroughfares, and prescribe the routes and the times.

Section 30(2). On being satisfied that persons intend to convene an assembly or form a procession which would, in the judgment of the Magistrate, if uncontrolled be likely to cause a breach of the peace, he may by general or special notice require an application for a licence.

Section 30(3). On application he may issue a licence naming the licensees and defining the conditions on which alone the assembly or procession is to be permitted, and no fee may be charged for the application or the grant.

Section 30(4). He may regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies.

Section 31. It is the duty of the police to keep order on public roads, streets, thoroughfares, ghats and landing places and at other places of public resort, and to prevent obstructions on the occasion of assemblies and processions, and in the neighbourhood of places of worship during the time of public worship.

Note that the licence under section 30 is not a general requirement. It arises only after the officer is satisfied of an intention to hold an assembly which the Magistrate judges likely, if uncontrolled, to cause a breach of the peace, and only after a notice requiring an application. The next chapter takes what the Constitution does to that scheme.

Worked example

A crowd surrounds a house at night and begins to break in. Inside are the householder and his family. A police party of four arrives at the gate.

The householder may use force in private defence of person and property. His right arises because there was no time to have recourse to the public authorities, and its extent is measured by the apprehension he reasonably entertains.

The police party is in an entirely different position. Under section 23 it is their duty to prevent the offence and to apprehend those they are authorised to apprehend. If the crowd is five or more with a common object, it is an unlawful assembly, and the ladder in sections 148 to 151 of the Suraksha Sanhita applies: command first, then civil force. Their authority comes from the section and is bounded by it.

And if they do nothing. The householder's right of private defence is unaffected, because the protection of the public authorities has in fact not been available to him. The officers' inaction is a breach of the duty in section 23, and if the house is burnt it is the failure that every commission of inquiry in Module IV describes.

What it does NOT mean

Private defence is not a right to punish. It ends when the apprehension ends. A crowd that has been driven off may not be pursued and beaten.

And the officer's authority is not a general licence to use force. Outside a statutory power, a police officer using force is in the same position as anybody else, and section 151 of the Suraksha Sanhita protects only acts done under sections 148 to 150 in good faith.

Section 15 of the Police Act is not obsolete merely because it is old. It is unamended and available, and an answer that assumes it has lapsed is wrong.

Quick revision

• Private defence: an exception, available because the State is absent, measured by the apprehension, and it ends with the threat.
• Police force: a duty of office under section 23, measured by the statute, and it cannot be waived.
• Section 3: superintendence in the State Government. Section 4: administration in the Inspector-General, and in the district under the general control of the District Magistrate.
• Section 12: the Inspector-General's rule-making power, expressly for preventing abuse or neglect of duty.
• Section 15: quartering additional police in a disturbed or dangerous area, at the inhabitants' cost, apportioned by the District Magistrate by means, with power to exempt a class. Absentee landlords included by the Explanation.
• Section 30: direction of assemblies and processions, prescribed routes and times, licensing on notice, no fee, and regulation of music.
• Section 31: the duty to keep order and prevent obstruction, including near places of worship during worship.

Test yourself

1. State the essential difference between private defence and a police officer's use of force. Private defence is an exception available because the protection of the public authorities cannot be had, and its extent is measured by the apprehension. A police officer's authority is a duty of office, his acts are not prima facie offences, and their limits are set by the statute conferring the power rather than by the threat.

2. Set out the scheme of section 15 of the Police Act 1861 and say why it is troubling. The State Government may proclaim an area disturbed or dangerous, or that the conduct of its inhabitants or of a class of them makes more police expedient; additional police are quartered there; the cost falls on the inhabitants, apportioned by the District Magistrate according to their means; and the Government may exempt a class or section. It is troubling because it permits a district to be policed at the expense of one community for the disorder of another, and it is unamended.

3. When does a licence become necessary under section 30? Only after the District Superintendent is satisfied that persons intend to convene an assembly or form a procession which, in the judgment of the Magistrate, would if uncontrolled be likely to cause a breach of the peace, and after he has required an application by general or special notice. No fee may be charged.

4. What do sections 3 and 4 together explain about Prakash Singh? That superintendence lies with the political executive and administration with the Inspector-General, with the district force under the general control of the District Magistrate, and that nothing stands between the political executive and the force. The first of the seven directions in Prakash Singh, a State Security Commission whose recommendations bind the Government, is the attempt to supply what those two sections leave out.

"Reasonable" is a justiciable word. Every restriction must be reasonable, and the court decides. That is what separates the Indian scheme from one in which the legislature's say is final.

Public order, and how narrow it is

Public order is the ground that does most of the work in this paper, and its meaning was settled in the two cases of 26 May 1950.

Romesh Thappar v. State of Madras, AIR 1950 SC 124, (1950) SCR 594.

Facts. The Government of Madras banned the entry and circulation of the petitioner's weekly journal in the State under the Madras Maintenance of Public Order Act 1949. He moved the Supreme Court directly under article 32, and the State objected that he should have gone to the High Court first.

Held. The preliminary objection was rejected: article 32 confers a fundamental right to move the Supreme Court itself, and the Court is constituted the protector and guarantor of fundamental rights, so it cannot decline an application merely because the applicant might have gone to a High Court. The ban was struck down as an unconstitutional restriction on the freedom of speech.

Why it matters here. Two things. It establishes that a citizen may come straight to the Supreme Court when a fundamental right is infringed, which is how almost every case in this book reached the Court. And it began the line of authority on how narrowly the permitted grounds are to be read.

Brij Bhushan v. State of Delhi, AIR 1950 SC 129, decided the same day.

Facts. The Chief Commissioner of Delhi required the printer, publisher and editor of a Delhi weekly to submit for scrutiny before publication all communal matter and all news and views about Pakistan, under section 7(1)(c) of the East Punjab Public Safety Act 1949 as extended to Delhi.

Held. By the same majority, with Fazl Ali J. dissenting, the provision was void. It authorised restrictions on the freedom of speech and expression for purposes not covered by article 19(2) as it then stood, and pre-censorship of a journal is itself a restriction on the liberty of the press.

Why it matters here. It is the pre-censorship case, and it is the direct ancestor of every modern argument about prior restraint on speech that might produce communal violence. It also produced, together with Romesh Thappar, the First Amendment of 1951, which inserted "public order" into article 19(2) and added the word "reasonable" to the restriction. A student should know that the ground now most used against communal speech was put into the Constitution because those two decisions held it was not there.

Where the offences sit in this structure

Take the provisions of this module and locate each.

• Sections 189 to 194 of the Nyaya Sanhita, unlawful assembly, rioting and affray. Outside article 19(1)(b) altogether where the assembly is not peaceable or is armed; otherwise justified under article 19(3) as a restriction in the interests of public order.
• Sections 196 and 197, promoting enmity and imputations prejudicial to national integration. Restrictions on speech under article 19(2), on the grounds of public order and of the sovereignty and integrity of India.
• Section 163 of the Suraksha Sanhita and section 37 of the Maharashtra Police Act, prohibitory orders. Restrictions on assembly under article 19(3) and on movement under article 19(5).
• Preventive detention, examined later in this module, is not tested against article 19 at all but against articles 21 and 22, and the reason for that is the subject of that chapter.

The vagueness objection

Shreya Singhal v. Union of India, AIR 2015 SC 1523.

Held, in substance. Section 66A of the Information Technology Act 2000, which punished the sending of information that was grossly offensive or of menacing character, was struck down. The Court distinguished discussion, advocacy and incitement, holding that the first two are protected however unpopular and that only incitement can be restricted; it held the section vague and over-broad, since expressions such as grossly offensive gave no standard and left a person unable to know what was forbidden; and it held that a restriction on speech must fall within one of the eight grounds in article 19(2) and cannot be justified merely because the speech is unpalatable.

Why it matters here. The distinction between advocacy and incitement is the test every hate-speech question in Module IV eventually applies. And the vagueness holding is the standing objection to loosely drafted public-order offences, which is a general criticism a student can deploy across this whole paper.

Worked example

Two hundred people gather without permission on a public road outside a State Secretariat, sit down, and announce they will not move until a demand is met. Traffic is stopped for a day. Speeches are made criticising the Government in strong terms. Nobody is hurt and nothing is damaged.

The right. Article 19(1)(a), speech; article 19(1)(b), to assemble peaceably and without arms; article 19(1)(d), to move freely. The assembly is peaceable and unarmed, so it is within clause (b) on its terms.

The restriction. Article 19(2) and 19(3) permit reasonable restrictions in the interests of public order. Note the two-fold test: the restriction must be by law, and it must be reasonable.

Where the line falls. The speeches are criticism of the Government, which on Kedar Nath Singh is protected unless there is an intention or tendency to create disorder or incitement to violence. The obstruction of the road is a different matter, and it is the ground on which such an assembly is ordinarily dispersed.

The powers. A prohibitory order under section 163 of the Bharatiya Nagarik Suraksha Sanhita 2023 or section 37(3) of the Maharashtra Police Act 1951; dispersal under section 129 of the Code and sections 148 to 151 of the Sanhita.

What article 19 does not permit. It does not confer a right to a particular place. The right is to assemble; where and when is regulated, and a regulation is not a prohibition.

What it does NOT mean

Article 19(1)(b) does not protect a violent assembly. The words "peaceably and without arms" are part of the guarantee, not a restriction on it.

A restriction is not saved by being well-intentioned. It must fall within the enumerated grounds and be reasonable, and the court decides both.

And the grounds are not interchangeable across clauses. Decency and morality justify a restriction on speech and on association, and not on assembly. Contempt of court and defamation justify a restriction on speech alone.

Quick revision

• 19(1)(a) speech, (b) to assemble peaceably and without arms, (c) associations, (d) movement.
• 19(2) eight grounds including public order and incitement to an offence; 19(3) two grounds; 19(4) three; 19(5) the general public and Scheduled Tribes.
• An assembly that is not peaceable or is armed is outside the guarantee, so section 189 is not a restriction on it.
• Romesh Thappar and Brij Bhushan, both 26 May 1950, read the grounds narrowly, and produced the First Amendment 1951, which added public order and the word reasonable to article 19(2).
• Romesh Thappar also establishes the direct right to move the Supreme Court under article 32.
• Shreya Singhal: discussion and advocacy are protected; only incitement may be restricted; a vague and over-broad restriction on speech is void.

Test yourself

1. Which four freedoms in article 19(1) does collective action use, and which restriction clause governs each? Speech and expression, clause (2); assembly, clause (3); association, clause (4); and movement, clause (5).

2. Why is section 189 of the Nyaya Sanhita not a restriction on the right to assemble? Because article 19(1)(b) guarantees only the right to assemble peaceably and without arms. An unlawful assembly, being one with a forbidden common object and generally involving criminal force or the show of it, is outside the guarantee altogether.

3. What did Romesh Thappar and Brij Bhushan lead to? The First Amendment of 1951, which inserted public order into article 19(2) and qualified the restrictions with the word reasonable. Both decisions had held that the impugned laws restricted speech on grounds the article did not then contain.

4. State the distinction in Shreya Singhal that every hate-speech question turns on. The distinction between discussion, advocacy and incitement. Discussion and advocacy are protected however unpopular the view; only incitement may be restricted, and a provision that does not confine itself to incitement, or that is so vague that a person cannot know what is forbidden, is void for over-breadth.

The licensing scheme, section 30 of the Police Act 1861

Section 30(1). The District Superintendent or Assistant District Superintendent may, as occasion requires, direct the conduct of all assemblies and processions on public roads, streets or thoroughfares, and prescribe the routes and the times at which processions may pass.

Section 30(2). On being satisfied that persons intend to convene an assembly or form a procession which would, in the judgment of the Magistrate of the district or sub-division, if uncontrolled, be likely to cause a breach of the peace, he may by general or special notice require the persons convening or promoting it to apply for a licence.

Section 30(3). On such application he may issue a licence, specifying the names of the licensees and defining the conditions on which alone the assembly or procession is to be permitted. No fee may be charged on the application or the grant.

Section 30(4). He may regulate the extent to which music may be used in the streets on the occasion of festivals and ceremonies.

Section 31. It is the duty of the police to keep order on public roads, streets, thoroughfares, ghats and landing places and other places of public resort, and to prevent obstructions on the occasion of assemblies and processions, and in the neighbourhood of places of worship during the time of public worship.

Read section 30(2) closely, because the structure is often misdescribed. A licence is not required for every procession. Three things must happen first: the officer must be satisfied of an intention to hold one; the Magistrate must judge that it would, if uncontrolled, be likely to cause a breach of the peace; and a notice must be given requiring an application. Only then does the obligation arise.

The Maharashtra scheme

In Greater Bombay and in the districts of Maharashtra, the operative provisions are the State's own.

Section 33 of the Maharashtra Police Act 1951 is the rule-making power for regulating traffic and preserving order in public places, and processions are licensed under rules made under it.

Section 36 permits directions to keep order.

Section 37(1) permits prohibition of the carrying of weapons and of stones or other missiles, of the exhibition of effigies, of cries, songs and music, and of harangues.

Section 37(3) permits the Commissioner or District Magistrate to prohibit any assembly or procession for so long as he considers it necessary for the preservation of public order, provided that no such prohibition shall remain in force for more than fifteen days without the sanction of the State Government.

Section 39 permits orders for the prevention of riot, and section 40 orders for the maintenance of order at religious ceremonials. Section 135 supplies the penalty for contravening an order under section 37, 39 or 40.

Section 40 is the provision the Module IV episodes actually run on, because the processions in question are religious ones, and it is worth knowing that Maharashtra legislated separately for them.

The offence a procession most often attracts

Section 296 of the Bharatiya Nyaya Sanhita 2023 punishes whoever, to the annoyance of others, does any obscene act in any public place, or sings, recites or utters any obscene song, ballad or words in or near any public place, with imprisonment up to three months, or a fine up to one thousand rupees, or both.

It is worth naming in this chapter for three reasons. It is the provision under which a procession is most often broken up, because the words are wide and the threshold is annoyance rather than harm. It carries a very small punishment, so an arrest under it is a means of dispersal rather than of prosecution. And it sits beside section 37(1)(e) of the Maharashtra Police Act 1951, which allows the public utterance of cries and the singing of songs to be prohibited by notification, so the same conduct may be both an offence and a breach of a prohibitory order carrying, under section 135, a minimum of four months.

A student should notice the asymmetry. Singing an obscene song is three months; disobeying an order prohibiting the singing of songs is not less than four months. The order is punished more heavily than the act.

Worked example

A religious procession is announced for a route that passes a place of worship of another community at the hour of its prayer. The Commissioner of Police must decide what to do.

He may do nothing. The right is guaranteed and the procession is announced as peaceable and unarmed.

He may direct the conduct and prescribe the route and time, under section 33 of the State Act and section 30(1) of the Police Act 1861 where that applies. This is the least intrusive step and the one the law prefers.

He may require a licence and impose conditions, if the statutory conditions are made out.

He may prohibit the procession under section 37(3), but for not more than fifteen days without the State Government's sanction.

He may prohibit specific things under section 37(1): the carrying of lathis, the collection of stones, the playing of music past a particular point.

And section 31 of the Police Act and section 40 of the State Act require him to keep order in the neighbourhood of the place of worship during worship, whatever he decides about the route.

Which of these is lawful depends on the material. A prohibition needs more justification than a rerouting, and a rerouting needs more than a condition about music. The principle is that the restriction must be reasonable, and reasonableness is measured against the least intrusive step that would meet the apprehended danger.

What it does NOT mean

A licensing requirement is not automatically unconstitutional. Regulation of the time, place and manner of a procession is a classic reasonable restriction. What would be unconstitutional is a regime that gave an officer an unguided discretion to refuse.

And a prohibition is not the ordinary response. The powers are graduated, and an administration that reaches for prohibition without considering direction, conditions or rerouting has not acted reasonably.

Nor does the right to assemble include a right to a particular route. It includes a right not to be refused arbitrarily, which is a different thing.

Quick revision

• Article 19(1)(b): assemble peaceably and without arms. Both qualifications are inside the right.
• Article 19(3): restrictions only in the interests of the sovereignty and integrity of India or public order, and they must be reasonable.
• Police Act section 30: direct the conduct, prescribe routes and times; require a licence only after the officer is satisfied of the intention, the Magistrate judges a breach of the peace likely if uncontrolled, and notice is given; no fee; regulate music.
• Police Act section 31: duty to keep order and prevent obstruction, including near a place of worship during worship.
• Maharashtra Police Act: section 33 rules for traffic and order, 37(1) prohibit weapons, missiles, effigies, cries, songs, music, harangues, 37(3) prohibit an assembly or procession, fifteen days without State sanction, 39 prevention of riot, 40 religious ceremonials, 135 the penalty.
• The powers are graduated, and reasonableness is measured against the least intrusive step that would answer the danger.

Test yourself

1. Why is the law of unlawful assembly not a restriction on article 19(1)(b)? Because the guarantee is of the right to assemble peaceably and without arms. An assembly that is neither is outside the right, so no justification under article 19(3) is required for reaching it.

2. What three things must happen before a licence can be required under section 30 of the Police Act 1861? The District Superintendent must be satisfied that persons intend to convene an assembly or form a procession; the Magistrate must judge that it would, if uncontrolled, be likely to cause a breach of the peace; and a general or special notice must be given requiring the convenors or promoters to apply for a licence.

3. For how long may a procession be prohibited in Maharashtra, and under what provision? Section 37(3) of the Maharashtra Police Act 1951, and for not more than fifteen days without the sanction of the State Government.

4. Against what is the reasonableness of a restriction on a procession measured? Against the least intrusive step that would meet the apprehended danger. A prohibition requires more justification than a rerouting, and a rerouting more than a condition about the use of music.

Buddhist ahimsa: the compassionate version

The Buddhist form takes the first of the five precepts, abstention from taking life, and grounds it in compassion and in the recognition that all beings shrink from harm.

Its distinguishing feature is the weight it places on intention. In the Buddhist analysis the moral quality of an act lies in the volition behind it, so ahimsa is as much a discipline of the mind as a rule of conduct. Hatred restrained but not extinguished is not the goal.

Its social form is the most developed of the three. The tradition produced an ideal of the ruler who governs without cruelty, and the ideal was given a historical example in the Emperor Ashoka, whose edicts after the Kalinga war renounce conquest by arms in favour of what they call conquest by dharma. A student writing about approaches to violence in India can use Ashoka as the first recorded instance of a State renouncing a means, and should note that he did not disband his army.

Hindu ahimsa, and the duty that competes with it

The Hindu material is the most complicated of the three, and it is complicated in a way the paper needs.

Ahimsa is present and is praised. It appears among the restraints of the Yoga tradition, it is repeatedly called the highest dharma in the epic literature, and it governs the conduct expected of one who has renounced the world.

And a competing duty is present beside it. The literature also holds that a ruler who does not use force against wrongdoing fails in his duty, and that the warrior who withdraws from a righteous fight commits a wrong. The most famous single passage in the tradition is an argument made to a man who wishes to lay down his weapons, telling him not to.

How to handle this in an answer. Not by choosing a side, and not by pretending the tension is not there. The honest statement is that the Hindu tradition contains both a norm of non-injury and a norm of righteous force, that the first governs the individual seeking liberation and the second the ruler and the warrior, and that the twentieth-century achievement of Gandhi was to argue that the first could be made to do the second's work.

Christian and Islamic non-violence

MU asked for these two by name on the paper of 2025-26, Set 2, alongside the three above, so they belong in this chapter although they are not among the Indian traditions its title names.

The Christian material. The central text is the injunction in the Sermon on the Mount not to resist one who is evil, and to turn the other cheek, together with the command to love one's enemies. Beside it, and in tension with it, stands a tradition of just war, worked out by Augustine and Aquinas, which holds that force may be used by a lawful authority, for a just cause, with a right intention, as a last resort, and proportionately. The parallel with the Hindu material is exact: a norm of non-injury addressed to the individual, and a doctrine of permitted force addressed to the ruler. The absolute reading was carried into modern politics by the historic peace churches and by the American civil rights movement, which took its method directly from Gandhi.

The Islamic material. The Quranic injunctions include the verse that whoever kills a soul, unless for a soul or for corruption in the land, is as though he had killed all mankind, and the verse that there is no compulsion in religion. Beside them stands the law of jihad, which the classical jurists divided into the greater struggle against one's own soul and the lesser struggle of armed defence, hedged with rules restricting the killing of non-combatants, the destruction of crops and the breaking of a truce. The Sufi traditions emphasise the greater struggle. The twentieth-century figure a student should name is Khan Abdul Ghaffar Khan, who raised the Khudai Khidmatgar, an unarmed movement of about a hundred thousand Pathans in the North-West Frontier Province, on an explicitly Islamic account of non-violence, and who worked with Gandhi.

What the comparison shows, and it is the point of the section. Every one of the five traditions contains both a norm of non-injury and a doctrine permitting force, and they differ in who each norm addresses and in how the two are reconciled. The Jain tradition addresses the ascetic and refuses the reconciliation. The Buddhist and Christian traditions address the layperson and permit the ruler what they deny the individual. The Hindu and Islamic traditions address the ruler directly and regulate his force rather than forbidding it.

An answer that presents any one of the five as simply pacifist, or simply not, has misread it.

Distinctions

Worked example

A village is attacked. A young man from the village asks each tradition what he should do.

The Jain answer is the most demanding and the least practical as public policy: not to injure, in thought, word or deed, and not to cause or approve injury by another. It is a rule for the person who has renounced the world, and it does not undertake to tell a State what to do.

The Buddhist answer is restraint, and it directs attention to what he intends. It also, through the ideal of the righteous ruler, addresses the State: govern so that this does not happen, and when it does, punish without cruelty.

The Hindu answer, for a householder or a ruler, is that force lawfully applied against wrongdoing is a duty rather than a failing, and that the fault would lie in standing aside.

And the modern legal answer, which the rest of this book gives, is the State's: he is not to resist beyond the right of private defence, because the protection of the public authorities is available to him, and if it was not available then his right revives.

Notice that the last answer contains the first three. The right of private defence is conditioned on the State's absence, which is Buddhist and Hindu reasoning in statutory form, and its limits express the principle of minimum force.

What it does NOT mean

Ahimsa does not mean passivity. In every one of the three traditions it is a discipline requiring effort, and Gandhi's insistence that it is a positive force rather than an abstention is developed in the next chapter.

It is not a uniquely Indian idea, and claiming so weakens an answer. What is distinctive is its antiquity, its centrality in Jain and Buddhist thought, and its twentieth-century conversion into a mass political method.

And it has never been the whole of Indian practice. The gap between the norm and the record is very wide, and a paper on collective violence in India is largely an account of that gap.

Quick revision

• Ahimsa: abstention from injury to living beings. Three traditions, three forms.
• Jain: supreme vow; thought, word and deed; doing, causing and approving; grounded in karma; addressed to the ascetic.
• Buddhist: first of the five precepts; grounded in compassion and in volition; produced an ideal of the righteous ruler, exemplified by Ashoka after Kalinga.
• Hindu: a high dharma standing beside a duty of righteous force; the rule differs for the renouncer and for the king.
• Gandhi's contribution was to turn a personal discipline into a political method.
• Ahimsa is one Indian approach, always contested, and the next two chapters give the contest.

Test yourself

1. What makes the Jain form the most rigorous? Its threefold and threefold structure. It forbids harm in thought, word and deed, and harm done by oneself, caused through another, or approved in another, and it extends to all living beings graded by the senses they possess.

2. On what does the Buddhist form place its distinctive weight? On volition. The moral quality of the act lies in the intention behind it, so ahimsa is a discipline of the mind and not only a rule of outward conduct.

3. State the tension inside the Hindu material and say how to handle it in an answer. The tradition holds both that non-injury is a high dharma and that a ruler or warrior who fails to use force against wrongdoing fails in his duty. Handle it by stating both, by noting that they address different stations and stages of life, and by identifying Gandhi's achievement as the attempt to make the first do the second's work.

4. Why is it a mistake to present ahimsa as the Indian view of violence? Because it has always been contested. Ambedkar objected to it directly, the freedom struggle contained a substantial revolutionary tradition, and the record of collective violence in India is very largely an account of the distance between the norm and the practice.

Satyagraha: the four features

One: means and ends are convertible. The end grows out of the means as the tree out of the seed. This is the proposition on which everything else rests, and it is what he set against the argument that a good end justifies a bad means. If the means are violent, the end will be a society organised around violence, whoever wins.

Two: conversion, not coercion. The object is to change the opponent's mind, not to defeat him. Hence the insistence on courtesy to the opponent, on giving notice before acting, and on not exploiting his difficulties.

Three: openness and acceptance of the penalty. The law is broken in public, the breach is announced in advance, and the penalty is accepted without evasion. This distinguishes satyagraha from conspiracy.

Four: self-suffering. The satyagrahi undertakes the suffering rather than imposing it. This is the feature that most divides opinion: to its admirers it is what gives the method its moral force, and to its critics it makes the method dependent on an opponent capable of shame.

The forms it took

Non-cooperation. Withdrawal from the institutions of the State: its titles, its courts, its schools, its legislatures.

Civil disobedience. Deliberate and open breach of a specific law, of which the salt satyagraha of 1930 is the standard example, chosen because the law in question touched everybody and could be broken by anybody.

The fast. The most contested form, because a fast directed at an opponent applies a pressure that is hard to distinguish from coercion, and Gandhi's own use of it against the Communal Award drew that objection in its sharpest form, from Ambedkar. The next chapter takes it.

The constructive programme. The least discussed and, on his own account, the most important: village industry, sanitation, the removal of untouchability, and the other work that was to build the society the resistance was for.

Worked example

A group proposes to resist a law requiring a permit to hold a meeting in a particular ground, which they say is being used to prevent all meetings by one community.

As satyagraha the campaign would look like this. They write to the authority, stating the grievance and the date on which they intend to meet without a permit. They meet, in the open, without weapons, and without resisting arrest. They plead the facts and accept conviction. They do not conceal identities, do not fight the police, and do not exploit any emergency the administration is facing.

As ordinary collective action it would look like this. They meet without notice, resist dispersal, and disperse when the force arrives.

What the law makes of each. The first is still an offence: the permit requirement, if valid, is broken. But the offence is the one they announced, they are the persons they said they would be, and the sentence is the one the statute provides. The second engages the whole of the previous ten chapters: unlawful assembly, the command to disperse, rioting if force is used, and the aggravated offence under section 189(3) of the Nyaya Sanhita for remaining after a lawful command.

And notice what satyagraha does to the criminal justice system. It removes every one of the system's usual difficulties. There is no problem of identification, no problem of witnesses, and no dispute about the act. The system, faced with satyagraha, works perfectly, and that is exactly the difficulty for the State, because the spectacle of it working perfectly against people who have injured nobody is the campaign's whole point.

Criticism, and it must be given

It depends on the opponent. The method requires an adversary who is susceptible to moral pressure and who is constrained in what he may do to unarmed people. Against an adversary under no such constraint, the self-suffering produces suffering and nothing else. This is the standard objection and it is a serious one.

It privileges those who can afford to suffer. Ambedkar's objection, taken in full in the next chapter, is that patience is a virtue easily recommended to people who have been waiting for two thousand years.

And the acceptance of the penalty proves less than it claims. If the law is unjust, submitting to its penalty may legitimate it. If the law is just, breaking it needs more justification than a willingness to be punished supplies.

Against all three there is the record. The method was used at scale, in a country of that size, against a State with an army, and the State left. No answer to the criticisms is as strong as that, and no amount of the record answers the criticisms.

Quick revision

• Ahimsa for Gandhi is a positive force, not abstention, and is inseparable from truth.
• Non-violence from inability is not non-violence; between violence and cowardice he chose violence.
• Satyagraha, four features: means determine ends; conversion not coercion; openness and acceptance of the penalty; self-suffering.
• Forms: non-cooperation, civil disobedience, the fast, the constructive programme.
• The legal significance is the theory of civil disobedience: the authority of law is not denied, the particular law is broken openly, and the penalty is accepted.
• Criticisms: it depends on the opponent; it asks patience of those least able to afford it; and acceptance of the penalty may legitimate an unjust law.

Test yourself

1. State the four features of satyagraha. That means and ends are convertible, so the means determine what the end will be; that the object is to convert the opponent rather than coerce him; that the law is broken openly and the penalty accepted rather than evaded; and that the suffering is undertaken by the resister rather than inflicted on the opponent.

2. What is the legal significance of accepting the penalty? It is the answer to the objection that civil disobedience denies the authority of law. On Gandhi's account the satyagrahi accepts the legal order and objects to a particular law, and the acceptance of punishment is what marks the difference between civil disobedience and ordinary criminality.

3. Why did Gandhi say he would choose violence over cowardice? Because non-violence practised from inability is not non-violence at all. The method requires the capacity to resist and the choice not to, and a person who submits because he cannot fight has made no moral choice.

4. Give the strongest criticism of satyagraha and the strongest answer to it. That it depends on an opponent susceptible to moral pressure and constrained in what he may do to unarmed people, so that against a ruthless adversary the self-suffering achieves nothing but suffering. The strongest answer is the record: the method was used at national scale against a State with an army, and the State left. Neither the criticism nor the answer disposes of the other.

Four: the remedy is legal, not moral. A right that depends on the goodwill of the person who must respect it is not a right. What is needed is a guarantee, in a constitution, with a court to enforce it, and with penalties attached to its breach. Every protective statute in Modules III and IV of this paper is an application of that proposition.

What Ambedkar's approach produced

This is where an answer earns its marks, because the objection is not merely negative.

Article 17, the abolition of untouchability, forbidding its practice in any form and making the enforcement of any disability arising out of it an offence punishable in accordance with law. It is the only fundamental right that is directed at private persons and the only one the Constitution itself declares to be an offence. It exists because he did not believe the practice would end by persuasion.

Article 15(2), which forbids any restriction on access to shops, public restaurants, hotels, places of public entertainment, wells, tanks, bathing ghats, roads and places of public resort. Again directed at private conduct.

Article 35, which gives Parliament the exclusive power to make laws prescribing punishment for acts declared offences under article 17, which produced the Protection of Civil Rights Act 1955 and, in due course, the Atrocities Act of 1989.

Articles 330 to 342, the framework of representation and identification of the Scheduled Castes and Scheduled Tribes, which is what the Atrocities Act borrows to define whom it protects.

The pattern is consistent. Where the Gandhian approach would put a duty on the dominant, Ambedkar put a right in the dominated and a penalty on the breach.

Distinctions

Worked example

A family is refused water at the village well.

The Gandhian response is a satyagraha at the well: an announced, open, unarmed presence, repeated, with the penalty accepted, addressed to the conscience of the village.

Ambedkar's response is different in kind. The refusal is an offence. Article 17 makes the enforcement of a disability arising out of untouchability an offence punishable in accordance with law; the Protection of Civil Rights Act 1955 and section 3 of the Atrocities Act 1989 supply the punishment; and the family's remedy is a first information report, an investigation, a charge sheet and a trial.

And the honest conclusion, which is the one this paper keeps reaching. The second response is right in principle and, on the record in Module IV, frequently produces nothing, because the police station will not register, the witnesses will not hold, and the acquittal rate is what Appa Balu Ingale recorded. Ambedkar's objection to Gandhi is correct. It does not follow that his own remedy has worked, and a first-class answer says both.

What it does NOT mean

It is not an argument for violence. Ambedkar's alternative to conversion is law, not counter-force, and he was consistently opposed to armed methods.

It is not a personal quarrel. The disagreement is about the diagnosis of caste and about the mechanism of change, and reducing it to biography loses the argument.

And it does not make the Gandhian approach worthless. The two coexist in the Indian record: the constitutional guarantees are Ambedkar's, and the mass method that made the constitution possible was largely Gandhi's.

Quick revision

• Four objections: patience is asked of those least able to afford it; the domination is not a mistake, so conversion misses it; the fast is coercion; and the remedy must be legal, not moral.
• The alternative is rights with remedies: article 17, the only fundamental right directed at private persons and the only one the Constitution itself calls an offence; article 15(2), access to wells, tanks, ghats, roads and public places; article 35, Parliament's exclusive power to punish breaches of article 17; articles 330 to 342.
• Article 35 produced the Protection of Civil Rights Act 1955 and, in the end, the Atrocities Act 1989.
• The pattern: a right in the dominated and a penalty on the breach, rather than a duty on the dominant.
• Ambedkar's objection is not an argument for violence; his alternative to conversion is law.
• The honest conclusion is that the objection is right and the remedy has, on the record, often failed.

Test yourself

1. State Ambedkar's four objections to the Gandhian approach. That non-violence asks patience of those who have already waited longest, and so favours the existing order; that caste is a system distributing real advantages rather than a mistaken belief, so conversion addresses the wrong problem; that a fast directed at an opponent is coercion, and gives most power to the person with most reputation; and that a right depending on goodwill is not a right, so the remedy must be a constitutional guarantee with an enforceable penalty.

2. Which constitutional provisions embody his alternative, and what is unusual about article 17? Articles 17, 15(2), 35 and 330 to 342. Article 17 is unusual in two ways: it is directed at private persons rather than at the State, and it is the only fundamental right that the Constitution itself declares the breach of to be an offence punishable in accordance with law.

3. What did article 35 make possible? It gave Parliament the exclusive power to prescribe punishment for acts declared offences under article 17, which produced the Protection of Civil Rights Act 1955 and later the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989.

4. Why is it wrong to treat Ambedkar's position as an argument for counter-violence? Because his alternative to moral conversion is law, not force. He argued for constitutional guarantees, statutory offences and enforceable remedies, and was consistently opposed to armed methods, on the ground that they replace one arbitrary power with another.

The armed formations of the 1940s. Raised outside India, with the argument that a State maintained by force may be met with force. Their legal afterlife was the trials held on their return, which produced the political consequence that trials of this kind are apt to produce.

The argument, stated fairly

An examiner rewards a student who states the revolutionary case as its holders made it, rather than dismissing it.

One: the colonial State was not a legal order for those it governed. It made law, but the people it applied to had no part in making it, so obedience to it could not be founded on consent.

Two: it was maintained by force. The revenue was collected by force, the risings were suppressed by force, and the special legislation was force wearing legal dress. A State so maintained cannot complain of being answered in kind.

Three: non-violence depends on the opponent, and may fail. This is the same objection the previous two chapters recorded, and it was made by revolutionaries before Ambedkar made it in another context.

And the answers. That violence practised against an occupying State does not stop when the State leaves, because the habit outlives the occasion, and Module II's account of what happened after 1947 is the evidence for that. That the method requires a small organisation, which cannot be democratic and cannot be accountable. And that the means shape the end, which is Gandhi's proposition and is not answered by pointing at the opponent.

The legal residue

Sedition was the offence built to reach the speech, and it is taken in the next chapter.

Conspiracy was the offence built to reach the organisation. Section 61 of the Sanhita now provides that when two or more persons agree with the common object to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means, such an agreement is a criminal conspiracy. The move from act to agreement is what makes it usable against a group.

Detention without trial was the instrument built to reach the person against whom nothing could be proved. Its constitutional licence is now article 22, and its statutory form the National Security Act 1980, both taken later in this module.

The special tribunal was the instrument built to reach the trial itself: modified procedure, restricted appeal, and a bench chosen for the case. Every one of those features reappears in the Special Courts of the modern security statutes, and the arguments made against them in Kartar Singh are the arguments made against the tribunals of the 1930s.

Worked example

Consider how the ordinary criminal law would have coped, and why the colonial State did not use it.

A group of eleven people meets regularly, prints a paper, and one of them shoots an official.

Under the ordinary law. The shooter is guilty of murder. The others are guilty of nothing unless abetment or conspiracy can be proved against each of them, which requires evidence of what each knew and agreed.

Under the colonial apparatus. All eleven are charged with conspiracy, so the prosecution proves an agreement and not eleven acts. The trial is before a special tribunal with modified procedure. Those against whom even the conspiracy cannot be proved are detained without trial. And the district in which they operated may be declared disturbed under section 15 of the Police Act, with additional police quartered there at the inhabitants' expense.

Nothing in that sequence is unfamiliar. It is the structure of the Unlawful Activities (Prevention) Act 1967 as it now stands, and a student who sees the continuity has the point of this chapter.

What it does NOT mean

It does not mean the two traditions were separate populations. People moved between them, and some of the most prominent figures in each admired the other.

It does not mean the revolutionary strand was marginal. The volume of special legislation is the measure of how seriously the colonial State took it.

And it does not mean the law that answered it was illegitimate merely because of its origin. The argument against the modern security statutes has to be made on their own terms, and pointing at their ancestry is a beginning and not a conclusion.

Quick revision

• The freedom struggle contained an armed strand as well as a non-violent one, and MU sets it as a question.
• The revolutionary case: the colonial State was not a legal order for the governed, was maintained by force, and non-violence depends on the opponent.
• The answers: the habit outlives the occasion; the method requires an organisation that cannot be accountable; and means shape ends.
• Four legal instruments, all with living descendants: sedition, the conspiracy trial, detention without trial, and the special tribunal.
• Conspiracy, now section 61 of the Sanhita, works by moving the proof from the act to the agreement, which is what makes it usable against a group.
• Section 15 of the Police Act 1861, collective punishment of a district, belongs to the same apparatus and is still unamended.

Test yourself

1. Name the four legal instruments the colonial State built against the revolutionary strand, and their modern descendants. Sedition, now section 152 of the Bharatiya Nyaya Sanhita; the conspiracy trial, now section 61; detention without trial, now the National Security Act 1980 under article 22; and the special tribunal, now the Special Courts of the security statutes and of the Atrocities Act.

2. Why is conspiracy the crucial offence in this apparatus? Because it moves what the prosecution must prove from the act to the agreement. It is not necessary to show what any individual did, only that there was an agreement to do an illegal act or a legal act by illegal means, which is what makes the offence usable against an organisation.

3. State the revolutionary argument in three propositions. That the colonial State was not a legal order for those it governed, since they had no part in making its law; that it was maintained by force, so could not complain of being answered in kind; and that non-violence depends on an opponent susceptible to it and may therefore fail.

4. Give the strongest answer to that argument. That violent method outlives the occasion for it, because the organisation and the habit remain after the opponent has gone; that such a method requires a small, secret and therefore unaccountable body; and that the means shape the end, so that a State won by force will be organised around force.

The Federal Court's view, in Niharendu Dutt Majumdar v. King Emperor, (1942) FCR 38.

Facts. A prosecution for sedition, in which the Federal Court had to decide whether an intention or tendency to disturb public order was an ingredient of the offence. The report of the decision could not be obtained in the session in which this chapter was written, so the facts are not stated here.

Held, as recorded in the Supreme Court's own account of it: words, deeds or writings constituted an offence under section 124A only when they had the intention or tendency to disturb public tranquillity, to create public disturbance or to promote disorder.

The Privy Council's view, in King Emperor v. Sadashiv Narayan Bhalerao, (1947) LR 74 IA 89.

Facts. Bhalerao made, published and distributed at Jalgaon City on 26 January 1943 copies of a leaflet addressed "To all the patriots", which said that the country had been turned into a cremation ground and complained that the National Congress had been declared unlawful and the national leaders detained. He was charged under rule 38(5) of the Defence of India Rules with distributing a document containing a prejudicial report, rule 34(6)(e) covering an act intended or likely to bring into hatred or contempt, or to excite disaffection towards, the Government established by law. The Magistrate acquitted him and the Bombay High Court affirmed the acquittal.

Held, as the Supreme Court later recorded it: it is not an essential ingredient of the offence that the words should be intended to, or be likely to, incite public disorder. Disaffection towards the Government established by law was itself enough.

The consequence, in the Supreme Court's own words. If the Federal Court's view were accepted section 124A would be constitutional; if the Privy Council's were accepted it would be unconstitutional. Since a provision which on one construction is consistent with the Constitution and on another is not must be given the former, the Court followed Niharendu Dutt Majumdar and did not follow Sadashiv Narayan Bhalerao, nor the Privy Council's decision in Wallace Johnson v. The King.

That is the mechanism of Kedar Nath, and a student who can state it in those terms has the whole of the case.

The construction that saved it

Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955, decided on 20 January 1962.

Facts. Kedar Nath Singh, a member of the Forward Communist Party in Bihar, was convicted of sedition and of promoting enmity for a speech attacking the ruling party and the police. Other appeals raising the same question were heard with his. The constitutional validity of section 124A was challenged as an unreasonable restriction on the freedom of speech under article 19(1)(a).

Held. The section was upheld, but read down. It is constitutional only if it is confined to acts involving an intention or a tendency to create disorder or disturbance of law and order, or incitement to violence. Strong words used to express disapprobation of the measures of Government, with a view to their improvement or alteration by lawful means, are not within the section. A citizen has a right to say or write whatever he likes about the Government or its measures, by way of criticism or comment, so long as he does not incite people to violence against the Government established by law or act with the intention of creating public disorder.

Why it matters here. Three things. It is the only construction that ever made the offence constitutional, so any statement of Indian sedition law that omits it is wrong. It puts incitement to violence at the centre, which is the same test the freedom of speech chapter took from Shreya Singhal. And it is the model of the Indian judicial answer to an over-broad penal provision: preserve the section, confine its operation, and move the constitutional question into the individual case.

And here is the difficulty that made the 2022 order necessary. A construction binds courts. It does not bind the officer at the police station who registers the case, and it does not undo the months a person spends awaiting bail while the courts work down to the point where Kedar Nath is applied. That gap between the law as construed and the law as administered is the whole of the modern criticism, and it is an instance of the institutionalised violence described earlier in this module.

The suspension, 2022

In May 2022, in proceedings challenging section 124A, the Supreme Court recorded the Union's statement that it had decided to re-examine the provision, and directed that it would be appropriate not to continue using it while the re-examination proceeded. The effect of the order was that pending trials, appeals and proceedings under section 124A were to be kept in abeyance, and that no fresh case should be registered under it while the reconsideration lasted.

An order of this kind is unusual and is worth a sentence in any answer: the Court neither struck the section down nor upheld it, but suspended its operation pending a legislative decision. Whether a court may properly do that is a fair question, and the practical answer given was that the alternative was to leave a provision of doubtful constitutionality in daily use.

This book does not cite the 2022 order as a decided case, because the report was not read in the session in which this chapter was written. What is stated above is the effect of the order as it is described in the material this book does hold, and a student writing on it should read the order itself.

What replaced it

Section 124A was repealed on 1 July 2024 with the rest of the Indian Penal Code. Its successor is section 152 of the Bharatiya Nyaya Sanhita 2023, which is taken in full in the next chapter. Two things should be noticed here, because they are the bridge.

The word "sedition" does not appear, and neither does "disaffection", and neither does "Government established by law".

But the Explanation survives almost word for word. Section 152 carries an Explanation providing that comments expressing disapprobation of the measures, or of the administrative or other action, of the Government, with a view to obtaining their alteration by lawful means, without exciting or attempting to excite the activities referred to in the section, do not constitute an offence.

That is the hinge for the next chapter. Parliament kept the protection for criticism and changed everything the protection was an exception to.

Worked example

A speaker at a public meeting says that the Government has failed the poor, that its ministers should be driven from office, and that the people should refuse to pay taxes until they go. A second speaker at the same meeting tells the audience to arm themselves and attack the district headquarters.

The first speaker, under the colonial construction. Exciting disaffection towards the Government, without any requirement of incitement to violence, and therefore within the offence as it was applied before 1962.

The first speaker, after Kedar Nath Singh. Outside the offence. The section is constitutional only if confined to acts involving an intention or a tendency to create disorder or disturbance of law and order, or incitement to violence, and strong words expressing disapprobation of the measures of Government, with a view to their alteration by lawful means, are not within it. A call to refuse taxes is a call to lawful political action or, at worst, a different offence.

The second speaker. Within the offence on any construction, and independently within section 196 of the Bharatiya Nyaya Sanhita 2023 if the attack is directed at a community, and within the provisions on abetment and criminal conspiracy.

Today. The offence stands suspended by the order of 2022, and the corresponding provision in the Sanhita of 2023 is differently drafted, so the question for the first speaker is whether his words fall within the new section rather than within the old one.

What the example shows. The whole difference between the colonial offence and the modern one is the requirement of a tendency to disorder or an incitement to violence, and it was made by construction rather than by amendment.

What it does NOT mean

Sedition was never an offence of criticising the Government. After 1962 it required an intention or tendency to create disorder, or incitement to violence, and every statement to the contrary describes the section as written rather than as construed.

The 2022 order did not repeal the section. It suspended its use pending reconsideration, and the repeal came two years later from Parliament.

And the repeal does not make the case law irrelevant. How much of Kedar Nath survives into section 152 is the live question, and it cannot be answered without knowing what Kedar Nath decided.

Quick revision

• Section 124A: hatred, contempt or disaffection towards the Government established by law. Explanations protected disapprobation of measures and of administrative action sought to be altered by lawful means.
• Two irreconcilable colonial views. Niharendu Dutt Majumdar, (1942) FCR 38, Federal Court: an offence only where the words had the intention or tendency to disturb public tranquillity or promote disorder. King Emperor v. Sadashiv Narayan Bhalerao, (1947) LR 74 IA 89, Privy Council: incitement to public disorder was not an essential ingredient.
• Kedar Nath followed the Federal Court and did not follow the Privy Council, on the rule that where one construction saves a provision and another destroys it, the former is taken.
• Kedar Nath Singh, 1962: upheld but read down to acts with an intention or tendency to create disorder or disturbance of law and order, or incitement to violence.
• The gap: a construction binds courts, not the registering officer, and not the months before bail.
• 2022: the Supreme Court directed that pending proceedings be kept in abeyance while the Union reconsidered the provision.
• 1 July 2024: section 124A repealed with the Penal Code. Section 152 of the Sanhita occupies part of the field.
• Section 152 drops the words sedition, disaffection and Government established by law, and keeps the Explanation protecting criticism.

Test yourself

1. What did Kedar Nath Singh decide, and why was reading down necessary? It upheld section 124A but confined it to acts involving an intention or a tendency to create disorder or disturbance of law and order, or incitement to violence. Reading down was necessary because on its literal terms the section restricted speech on grounds wider than article 19(2) permits.

2. State the rule Kedar Nath laid down for a citizen criticising the Government. A citizen may say or write whatever he likes about the Government or its measures by way of criticism or comment, however strongly, provided he does not incite people to violence against the Government established by law or act with the intention of creating public disorder.

3. Why did a binding construction not settle the matter in practice? Because the construction binds courts and not the officer who registers a case. A person could be arrested, refused bail and held for months before any court reached the point at which Kedar Nath applied, so the law as administered diverged from the law as construed.

4. State the two colonial views and say why the Supreme Court chose between them as it did. The Federal Court in Niharendu Dutt Majumdar held that section 124A was attracted only where the words had the intention or tendency to disturb public tranquillity, create public disturbance or promote disorder. The Privy Council in King Emperor v. Sadashiv Narayan Bhalerao held that incitement to public disorder was not an essential ingredient. On the Federal Court's view the section was constitutional and on the Privy Council's it was not, and since a provision must be given the construction that keeps it within the Constitution where one is available, the Supreme Court followed the Federal Court and departed from the Privy Council.

5. What happened to section 124A in 2022 and in 2024? In 2022 the Supreme Court directed that pending proceedings under it be kept in abeyance while the Union re-examined the provision. In 2024 it was repealed with the rest of the Indian Penal Code, with effect from 1 July, and section 152 of the Bharatiya Nyaya Sanhita 2023 now occupies part of the same field.

The two arguments about it

The case that it is narrower. Sedition punished feelings towards a Government. Section 152 punishes conduct directed at the State itself, which is a smaller and more serious class. Nobody can now be prosecuted for contempt of a Government, and the mental element is stated. On this view Parliament removed the objectionable core of sedition and kept only what any State may punish.

The case that it is wider, and it is the stronger case. Four points, and a student should be able to give all four.

1. "Subversive activities" is undefined, and is at least as vague as "disaffection". Shreya Singhal's vagueness reasoning applies to it directly.
2. "Encourages feelings of separatist activities" punishes the encouragement of a feeling, which is what the criticism of section 124A was aimed at, restored in different words.
3. The determinate maximum has more than doubled, from three years to seven.
4. "By use of financial means" reaches the funder, which extends the offence well beyond speech.

And a fifth point that is really the whole question. Does Kedar Nath survive? The construction there was tied to the words of section 124A, which no longer exist. What survives with certainty is the reasoning, that a penal provision restricting speech must be confined to incitement to violence or public disorder if it is to be a reasonable restriction under article 19(2). Whether a court will read section 152 down in the same way has not been settled, and an honest answer says so rather than asserting it either way.

Section 147 beside it

Section 147 punishes whoever wages war against the Government of India, or attempts to wage such war, or abets it, with death or imprisonment for life, and fine.

The two are easily confused, and the distinction is worth a line. Section 147 requires war, which means an insurrection with the object of overthrowing or coercing the Government, not merely a violent disturbance however large. Section 152 requires excitement of, or attempt to excite, secession, armed rebellion or subversive activities, and reaches speech and funding that never becomes war.

Worked example

Four fact patterns, and the value is in the sorting.

A speech at a public meeting saying that the Government's economic policy has ruined the district and must be thrown out at the next election. Squarely within the Explanation. Disapprobation of the measures of Government, alteration sought by lawful means. No offence.

A speech saying that a region should become a separate country, made in argument and without any call to arms. The hard case. It encourages feelings of separatist activities on the face of the section. Whether it is an offence depends on whether section 152 is read as requiring incitement to violence or public disorder, and that is the unsettled question above.

A speech urging listeners to take up arms against the State. Within the section on any reading. Exciting armed rebellion, purposely, and if anything follows, section 147 as well.

Money remitted to an organisation whose declared object is armed rebellion. Within section 152 by the words "by use of financial means", without any speech by the remitter at all. This is the clearest thing the new section does that the old one could not.

What it does NOT mean

The offence of sedition has not been abolished. The word has gone and the field has been re-described, and the successor is in some respects wider. An answer that says India abolished sedition in 2023 is wrong.

Kedar Nath has not been overruled. It was a construction of a repealed section. Its reasoning about article 19(2) is unaffected and is the natural starting point for the first challenge to section 152.

And the Explanation is not a general free-speech guarantee. It protects comment directed at the measures or administrative action of the Government, sought to be altered by lawful means. It says nothing about speech directed at anything else.

Quick revision

• Section 152: purposely or knowingly; words, signs, visible representation, electronic communication or use of financial means, or otherwise; excites or attempts to excite secession, armed rebellion, subversive activities, or encourages feelings of separatist activities, or endangers sovereignty or unity and integrity of India.
• Life, or up to seven years, and fine. Section 124A carried life or up to three.
• The Explanation preserves disapprobation of measures and of administrative action, sought to be altered by lawful means.
• Narrower: it protects the State, not the Government, and states a mental element.
• Wider: subversive activities is undefined; feelings of separatist activities is punished; the maximum has doubled; and financial means reaches the funder.
• Section 147: waging war against the Government of India. Death or life, and fine. Requires war, not disturbance.
• Whether Kedar Nath is read into section 152 is not settled.

Test yourself

1. Give the four limbs of conduct in section 152. Exciting or attempting to excite secession; armed rebellion; subversive activities; or encouraging feelings of separatist activities or endangering the sovereignty or unity and integrity of India, together with indulging in or committing any such act.

2. State two respects in which section 152 is narrower than section 124A and two in which it is wider. Narrower: it protects the sovereignty, unity and integrity of India rather than the Government established by law, and it states a mental element, purposely or knowingly. Wider: the determinate maximum rises from three years to seven, and the means now include electronic communication and the use of financial means, which reaches a funder who says nothing at all.

3. What is the unsettled question about section 152? Whether the construction in Kedar Nath Singh, confining the offence to an intention or tendency to create disorder or incitement to violence, will be read into it. That construction was tied to the words of section 124A, which no longer exist, though the reasoning about article 19(2) is unaffected.

4. Distinguish section 152 from section 147. Section 147 punishes waging, attempting to wage, or abetting war against the Government of India, and carries death or imprisonment for life. It requires an insurrection aimed at overthrowing or coercing the Government. Section 152 punishes exciting or attempting to excite secession, armed rebellion or subversive activities, and reaches speech and funding that never becomes war.

Section 3(2), which is the sub-section this paper uses: the Government may detain a person with a view to preventing him from acting in any manner prejudicial to the security of the State, or to the maintenance of public order, or to the maintenance of supplies and services essential to the community.

Section 3(3): where the State Government is satisfied that the circumstances prevailing or likely to prevail in an area make it necessary, it may by order in writing empower a District Magistrate or a Commissioner of Police to exercise the power for a specified period. This is the provision under which most detentions are in fact ordered.

Section 8: the grounds must be communicated to the detenu as soon as may be, ordinarily within five days, and in exceptional circumstances and for reasons recorded in writing not later than fifteen days, and he must be afforded the earliest opportunity of making a representation to the appropriate Government.

Section 9: Advisory Boards, each consisting of three persons who are, have been, or are qualified to be appointed as, Judges of a High Court, appointed by the appropriate Government.

Section 10: the appropriate Government shall, within three weeks from the date of detention, place before the Advisory Board the grounds, the representation if any, and where the order was made by a District Magistrate or Commissioner, that officer's report.

Section 13: the maximum period of detention under a confirmed order is twelve months from the date of detention, without prejudice to the Government's power to revoke or modify earlier.

The structure, and where the protection actually lies

Read those provisions together and the scheme is this. The executive orders the detention. The executive communicates the grounds. The detenu represents to the executive. An Advisory Board of three persons appointed by the executive reports. And a court enters only if the detenu moves it.

The protection therefore lies almost entirely in the grounds. Because there is no trial, the only thing that can be tested is whether the grounds disclosed are sufficient, relevant, and capable of being answered. That is why the case law on preventive detention is overwhelmingly about the grounds: grounds that are vague, grounds that are stale, grounds that include an irrelevant matter, grounds not supplied in a language the detenu understands, and documents referred to in the grounds but not supplied.

And this is where public order does its work. Section 3(2) permits detention to prevent acting prejudicially to the maintenance of public order, which is a lower threshold than the security of the State. The distinction between the two, and between both and mere law and order, is the single most litigated question under this Act, and a student should be able to state it: an act affects law and order if it disturbs the ordinary tenor of life; it affects public order if its reach and potentiality disturb the even tempo of the life of the community; and it affects the security of the State if it threatens the State's existence or authority.

Worked example

Communal tension is reported in a town. The Commissioner of Police, empowered under section 3(3), orders the detention of a man who has been making speeches.

• The power. Section 3(2), maintenance of public order, exercised by the Commissioner under an order made under section 3(3).
• Within five days, ordinarily, the grounds must be communicated, and in exceptional circumstances for reasons recorded, within fifteen.
• Within three weeks, the grounds and any representation must go to the Advisory Board of three persons qualified to be High Court Judges.
• Within three months the Board must report sufficient cause, under article 22(4), or the detention ends.
• The outer limit on a confirmed order is twelve months, under section 13.

Now the ways it can go wrong, which is what a problem question tests.

If the grounds recite three speeches and one of them is protected criticism, the order is bad, because the satisfaction rested in part on an irrelevant ground and the court cannot separate them. If the grounds refer to a report which is not supplied, the right of representation is illusory and the order is bad. If the grounds are stale, the link between the past conduct and the future apprehension is broken. And if what is described is a series of individual offences with no wider effect, the ground is law and order and not public order, and the Act does not apply at all.

Notice what none of that involves. No question is asked about whether he did anything, because the detention is not for anything he did.

What it does NOT mean

Preventive detention is not punishment, in law. It carries no conviction and produces no sentence. That is the formal position and it is why the ordinary trial safeguards do not apply. Whether the distinction means much to the person held for twelve months is a fair question and one an answer may raise.

A prosecution is not a bar. A person may be prosecuted and detained for overlapping conduct, because the purposes differ.

And the Advisory Board is not a court. It reports on whether there is sufficient cause. It does not try anything, the detenu has no right to a legal practitioner before it, and its proceedings are confidential.

Limits and criticism

The criticism that carries most weight is about administration, not about principle. Article 22 permits the power; the objection is that a power designed for the exceptional case is used routinely, that grounds are often supplied late or vaguely, and that the Advisory Board, appointed by the detaining Government and sitting without an adversarial hearing, is a weak check.

And the second criticism is that public order is too low a threshold for a power of this kind. Detention to prevent a threat to the existence of the State is one thing; detention to prevent a disturbance of the even tempo of community life is another, and the second is what section 3(2) permits.

Quick revision

• Article 22(3) withdraws the ordinary arrest safeguards for preventive detention; 22(4) to (7) supply the substitute: three months unless an Advisory Board of persons qualified to be High Court Judges reports sufficient cause, grounds to be communicated, and a right to represent.
• NSA section 3(1): defence of India, relations with foreign powers, security of India; and foreigners.
• NSA section 3(2): security of the State, maintenance of public order, maintenance of supplies and services essential to the community.
• Section 3(3): the State Government may empower a District Magistrate or Commissioner of Police.
• Section 8: grounds ordinarily within five days, in exceptional circumstances for reasons recorded within fifteen.
• Section 9: Board of three, qualified to be High Court Judges. Section 10: reference within three weeks. Section 13: maximum twelve months.
• The protection lies in the grounds: vague, stale, irrelevant or unsupplied material vitiates the order.
• Law and order, public order, security of the State: the ordinary tenor of life, the even tempo of the community, the existence of the State.

Test yourself

1. Where does the Constitution permit preventive detention, and what does it provide in place of the ordinary safeguards? Article 22. Clause (3) withdraws the rights in clauses (1) and (2) from a person detained under a preventive detention law. Clauses (4) to (7) substitute a limit of three months unless an Advisory Board of persons qualified to be High Court Judges reports sufficient cause, a right to be told the grounds as soon as may be, and a right to make a representation.

2. State the three grounds in section 3(2) of the National Security Act. Preventing a person from acting in any manner prejudicial to the security of the State, to the maintenance of public order, or to the maintenance of supplies and services essential to the community.

3. Give the three-fold distinction that decides most detention cases. An act affecting law and order disturbs the ordinary tenor of life; an act affecting public order has a reach and potentiality that disturbs the even tempo of the life of the community; an act affecting the security of the State threatens the existence or authority of the State itself.

4. Why is the sufficiency of the grounds the whole of the protection? Because there is no trial and no charge, so nothing about the alleged conduct is proved or tested. The only thing a court can examine is whether the grounds supplied were relevant, not stale, not vague, and accompanied by the material referred to, so that the right of representation under article 22(5) was real.

Take the two together and the design of Chapter II appears. Section 3 declares the association unlawful, section 7 freezes its money and section 8 notifies the places it uses; sections 10, 11 and 12 then punish, respectively, belonging to it, dealing with its money, and using its premises. A ban that reached only the members would leave the funds and the building untouched.

Section 13 punishes taking part in, committing, advocating, abetting, advising or inciting the commission of any unlawful activity.

Section 15 defines the terrorist act, and section 16 punishes it, with death or imprisonment for life where the act has resulted in the death of any person, and otherwise with a term of not less than five years extending to imprisonment for life.

Sections 18 to 20 punish conspiracy and attempt, organising a terrorist camp, and membership of a terrorist gang or organisation.

Section 43 names the officers competent to investigate offences under Chapters IV and VI.

Section 43D(5): notwithstanding the Code, no person accused of an offence punishable under Chapters IV and VI shall, if in custody, be released on bail or on his own bond unless the Public Prosecutor has been given an opportunity of being heard; and the proviso is the crucial part: such a person shall not be released on bail if the court, on a perusal of the case diary or the report under section 173 of the Code, is of opinion that there are reasonable grounds for believing that the accusation against him is prima facie true. Sub-section (6) adds that this restriction is in addition to the restrictions under the Code.

The Maharashtra Control of Organised Crime Act 1999

Section 2 defines organised crime, organised crime syndicate, and continuing unlawful activity. The last is the key: the Act reaches a pattern of activity rather than a single act.

Section 3 punishes the commission of an offence of organised crime, and section 4 punishes possession, on behalf of a member of an organised crime syndicate, of property derived from organised crime.

Section 21 is the modified procedure, and it is markedly more severe than the UAPA:

• 21(2): section 167 of the Code applies with fifteen days read as thirty and sixty days read as ninety, and where investigation cannot be completed in ninety days the Special Court shall extend the period up to one hundred and eighty days on the Public Prosecutor's report indicating progress and specific reasons.
• 21(3): anticipatory bail is not available at all.
• 21(4): no bail unless the Public Prosecutor has had an opportunity to oppose, and, where he opposes, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail.
• 21(5): bail shall not be granted if the court notices that the accused was on bail in an offence under this or any other Act on the date of the offence in question.
• 21(6): the limitations are in addition to those in the Code.
• 21(7): a police officer seeking custody for interrogation must file a written statement explaining the reason and any delay.

Section 23 bars the recording of information about an organised crime without the prior approval of an officer not below the rank of Deputy Inspector General, and bars cognizance without the previous sanction of an officer not below the rank of Additional Director General. Section 24 punishes a public servant who renders help or support in the commission of organised crime.

And now a central offence of organised crime

Section 111 of the Bharatiya Nyaya Sanhita 2023 brings into the general criminal law what had been the subject of State legislation for a quarter of a century, and the comparison with the Maharashtra Act is the point.

Organised crime under section 111(1) is any continuing unlawful activity, including kidnapping, robbery, vehicle theft, extortion, land grabbing, contract killing, an economic offence, cyber-crime, or trafficking in persons, drugs, weapons or illicit goods, by a person or a group acting in concert, singly or jointly, as a member of or on behalf of an organised crime syndicate, by the use of violence, threat of violence, intimidation, coercion or any other unlawful means, to obtain a direct or indirect material benefit.

The Explanation defines the two terms the offence turns on. An organised crime syndicate is a group of two or more persons indulging in any continuing unlawful activity. Continuing unlawful activity is an activity prohibited by law which is a cognizable offence punishable with three years or more, undertaken as a member of or on behalf of such a syndicate, in respect of which more than one charge sheet has been filed before a competent court within the preceding ten years and that court has taken cognizance.

The punishments, section 111(2) to (4). Where the offence has resulted in death, death or imprisonment for life and a fine of not less than ten lakh rupees. In any other case, not less than five years up to imprisonment for life and a fine of not less than five lakh rupees. Abetment, attempt, conspiracy, knowingly facilitating, or any act preparatory to an organised crime carries the same range. And mere membership of an organised crime syndicate carries not less than five years up to life.

How it compares with the Maharashtra Act. The structure is the same: a syndicate, a pattern of activity rather than a single act, and a threshold of prior charge sheets. Two differences are examinable. Section 111 sets the syndicate at two or more persons, and it operates throughout India without a State notification. What it does not carry is the modified procedure: the special bail test, the extended detention and the admissibility of a confession to a police officer are in the Maharashtra Act and not in section 111, so an accused charged under the Sanhita is tried under the ordinary procedure of the Bharatiya Nagarik Suraksha Sanhita 2023.

That is the reason a State Act of this kind survives the enactment of section 111: what such an Act supplies is not the offence but the procedure.

The two bail tests compared

Say in an answer why the difference matters. The UAPA test asks the court to look at the prosecution's own material and ask whether the accusation is prima facie true. It is therefore satisfied by a case diary that discloses a case. The MCOCA test asks the court to be satisfied of something close to innocence at a stage when no evidence has been tested, which is a condition few applicants can meet.

The judicial answer

National Investigation Agency v. Zahoor Ahmad Shah Watali, AIR 2019 SC 1734.

Held, in substance. At the stage of section 43D(5) the court must take the material in the charge sheet as it stands, must not weigh it or assess its admissibility as at a trial, and must decide only whether, on that material taken at face value, the accusation is prima facie true. That approach makes bail under the UAPA very difficult to obtain, and Watali is the decision that made it so.

Union of India v. K.A. Najeeb, AIR 2021 SC 712.

Held, in substance. The restriction in section 43D(5) does not oust the constitutional power of a court to grant bail where there has been a long incarceration without the prospect of an early trial, since article 21 is engaged and a statutory bar cannot survive an indefinite deprivation of liberty without trial.

Why the two must be given together. Watali is the rule and Najeeb is the exception, and an answer that gives only one of them is describing half the law. The practical position is that bail under section 43D(5) is refused on the material, and is granted years later on the delay.

State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5, and Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246, are the two decisions on MCOCA that a Maharashtra student should name, and they concern the State legislature's competence to enact it and the survival of its provisions alongside central law.

Worked example

A person is arrested after a bomb is found in a bag traced to a group he is said to belong to.

Under the general law he would be entitled to bail on the ordinary principles: the gravity of the offence, the risk of absconding, the risk of tampering.

Under the UAPA the court must first hear the Public Prosecutor, then read the case diary, and then ask whether the accusation is prima facie true on that material taken as it stands. If the case diary discloses the traced bag and an alleged membership, it will usually so find, and bail is refused.

Under MCOCA, if the same facts are framed as organised crime, anticipatory bail is unavailable, the investigation may run to one hundred and eighty days before a charge sheet, and bail requires the court to be satisfied that he is not guilty and will not offend on bail.

And three years later, with the trial not begun, Najeeb becomes available: the constitutional court may grant bail on the ground of the delay itself, because article 21 does not permit an indefinite deprivation of liberty without trial.

That sequence is the honest answer to a question on the misuse of terrorism law, and it is better than an assertion. The statute does not convict anybody. What it does is hold people for years before any court decides whether the accusation was true.

What it does NOT mean

A special statute is not automatically unconstitutional. Kartar Singh, examined in Module IV, upheld the TADA statutes while reading down provisions and reading in safeguards, and that is the pattern of the Indian answer.

And the criticism is not that the offences are unnecessary. Terrorism and organised crime are real. The criticism is about the procedure: how long a person may be held before a charge sheet, and on what condition he may be released before trial.

Nor is MCOCA a lesser statute because it is a State one. Its bail provision is stricter than the central Act's, and its competence has been upheld.

Quick revision

• A special statute changes procedure, not usually the definition of the wrong, and the change that matters is bail.
• UAPA: section 3 declaration, sections 4 and 5 confirmation by a Tribunal of a High Court Judge; section 7 prohibitory order over funds and section 8 notification of places; section 10 membership of an unlawful association, two years, section 11 dealing with its funds, section 12 using a notified place, one year; section 13 unlawful activities; section 15 terrorist act, section 16 punishment; sections 18 to 20 conspiracy, camps, membership of a terrorist organisation; section 43 competent officers.
• Section 43D(5) and its proviso: no bail if the court, on the case diary or the police report, is of opinion that there are reasonable grounds for believing the accusation prima facie true.
• MCOCA section 21: thirty and ninety days, extendable to one hundred and eighty; no anticipatory bail; bail only if the court is satisfied the accused is not guilty and not likely to offend on bail; absolute bar if he was on bail on the date of the offence.
• Section 23: prior approval of a Deputy Inspector General to record information, sanction of an Additional Director General for cognizance. Section 24: the public servant who helps.
• Watali is the rule, Najeeb the exception: prima facie true on the material, but long incarceration without an early trial engages article 21.

Test yourself

1. State the bail test in section 43D(5) of the UAPA and the approach the Supreme Court has taken to it. Bail is refused if the court, on a perusal of the case diary or the report under section 173 of the Code, is of opinion that there are reasonable grounds for believing that the accusation against the accused is prima facie true. In Watali the Court held that the material must be taken as it stands, without weighing it or assessing admissibility as at a trial.

2. How does section 21(4) of MCOCA differ, and why is the difference significant? It requires the court to be positively satisfied that there are reasonable grounds for believing the accused is not guilty, and that he is not likely to commit any offence while on bail. That is a far harder condition than asking whether the accusation looks true, and it must be met before evidence has been tested.

3. What does K.A. Najeeb decide, and how does it sit with Watali? That the statutory restriction does not oust the constitutional power to grant bail where there has been long incarceration with no prospect of an early trial, because article 21 is engaged. Watali governs the application on the material; Najeeb governs the application made after years of delay.

4. What do sections 10, 11 and 12 of the UAPA punish, and why are all three needed? Belonging to an unlawful association, dealing with its moneys, securities or credits in contravention of a prohibitory order under section 7(1), and using an article in contravention of a prohibitory order in respect of a notified place under section 8(3). All three are needed because a ban that punished only the members would leave the association's funds and its premises untouched.

5. Name three procedural changes MCOCA makes besides bail. Anticipatory bail is excluded by section 21(3); the period for investigation is extended to ninety days and may be extended by the Special Court to one hundred and eighty; and under section 23 information may not be recorded without the prior approval of an officer not below Deputy Inspector General, nor cognizance taken without the sanction of an officer not below Additional Director General.

Section 4. The special powers. Any commissioned officer, warrant officer, non-commissioned officer or person of equivalent rank may, in a disturbed area:

• (a) if of opinion that it is necessary for the maintenance of public order, after such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person acting in contravention of any law or order in force in the disturbed area prohibiting the assembly of five or more persons or the carrying of weapons or of things capable of being used as weapons, or of firearms, ammunition or explosive substances;
• (b) if of opinion that it is necessary, destroy any arms dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made, or any structure used as a training camp or as a hide-out by armed gangs or absconders;
• (c) arrest without warrant any person who has committed a cognizable offence or against whom a reasonable suspicion exists that he has committed or is about to commit one, using such force as may be necessary;
• (d) enter and search without warrant any premises to make such an arrest, or to recover a person believed to be wrongfully confined, or property reasonably suspected to be stolen, or arms, ammunition or explosive substances, using such force as may be necessary.

Section 5. Any person arrested and taken into custody shall be made over to the officer in charge of the nearest police station with the least possible delay, together with a report of the circumstances occasioning the arrest.

Section 6. No prosecution, suit or other legal proceeding shall be instituted except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by the Act.

Section 7 was repealed in 1960.

The four features that carry the criticism

The opinion is the officer's own. Section 4(a) turns on whether he is of opinion that firing is necessary for the maintenance of public order. There is no external check at the moment of decision.

The trigger is a prohibitory order, not violence. A person may be fired upon for acting in contravention of an order prohibiting the assembly of five or more persons. He need not be armed, need not be violent, and need not be part of an unlawful assembly as the penal law defines it.

The warning is discretionary. The words are "after giving such due warning as he may consider necessary". Compare section 148 of the Suraksha Sanhita, where the command to disperse is a condition and its absence takes the force outside the section.

Section 6 covers what is only purported to be done. The bar is not confined to acts genuinely within the Act, so it reaches the very cases in which the question is whether the officer exceeded his powers. And the sanction lies with the Central Government, which is the employer of the person to be prosecuted.

The constitutional question

The Act has been sustained on the reasoning that it is legislation for the deployment of the armed forces in aid of the civil power, that the declaration under section 3 is subject to judicial review, that section 4 must be read as permitting only the minimum force necessary, and that section 5 requires the arrested person to be handed to the police without delay so the ordinary process resumes.

The argument against it has three limbs, and a student should give all three.

Article 14. A person in a disturbed area may be shot for conduct that elsewhere would attract a command to disperse and, if he refused, a lathi charge. The classification is territorial, and the question is whether the difference in consequence bears a rational relation to the object.

Article 21. After Maneka Gandhi the procedure by which life is taken must be right, just and fair. A procedure consisting of one officer's opinion, a warning he may dispense with, and a sanction requirement controlled by his own employer is difficult to describe in those terms.

And the practical limb, which is the strongest. The Extra Judicial Execution Victim Families Association litigation, examined in Module III, established that a very large number of deaths in a disturbed area had never been investigated at all, and that the existence of section 6 was among the reasons. A protection that prevents investigation is not a protection against unjust prosecution; it is a bar on finding out what happened.

Worked example

An order under section 144 of the old Code, now section 163 of the Suraksha Sanhita, prohibits the assembly of five or more persons in a town in a declared disturbed area. Seven people stand together at a corner. A non-commissioned officer forms the opinion that dispersing them is necessary for the maintenance of public order.

• He may give a warning, if he considers one necessary.
• He may fire, even to the causing of death, because the seven are acting in contravention of an order prohibiting the assembly of five or more.
• If a person is arrested instead, section 5 requires him to be made over to the nearest police station with the least possible delay, with a report.
• If somebody is killed, no prosecution may be instituted without the previous sanction of the Central Government, and the bar applies even if the officer's act was outside his powers, because section 6 covers what is purported to be done.

Compare the same facts outside a disturbed area. The seven are not an unlawful assembly unless their common object is one of the five in section 189. They must be commanded to disperse. Civil force comes next. Armed force requires a District Magistrate's requisition and carries the statutory rule of minimum force in section 149(3). And a prosecution requires the sanction of the State Government, with a good-faith defence rather than a bar.

The whole of the criticism of this Act is in that comparison, and setting it out is a better answer than an assertion that the Act is unconstitutional.

What it does NOT mean

The Act does not apply across India. Its own extent clause names seven States, and other States have been brought under similar regimes by other statutes.

A declaration under section 3 is not unreviewable. The opinion is subject to judicial review on the ordinary grounds, and the periodic nature of the notification means the continuation of a declaration can be questioned.

And section 6 is not immunity. It is a bar on institution without sanction. Sanction can be given, and the criticism is about how rarely it is.

Quick revision

• Seven sections, section 7 repealed in 1960.
• Section 1: extends to Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura.
• Section 3: the Governor, Administrator or Central Government may declare a disturbed area where the use of armed forces in aid of the civil power is necessary.
• Section 4(a): fire upon or otherwise use force, even to the causing of death, on the officer's own opinion that it is necessary for public order, after such warning as he may consider necessary, against a person contravening an order prohibiting the assembly of five or more or the carrying of weapons.
• 4(b) destroy shelters and camps; 4(c) arrest without warrant, including of a person about to commit a cognizable offence; 4(d) enter and search without warrant.
• Section 5: hand over to the nearest police station with the least possible delay, with a report.
• Section 6: no prosecution, suit or proceeding without the previous sanction of the Central Government, for anything done or purported to be done.
• The four objections: the officer's own opinion, a prohibitory order as the trigger, a discretionary warning, and a bar covering purported acts, sanctioned by the actor's own employer.

Test yourself

1. What must the authority be satisfied of before declaring a disturbed area? That the whole or part of the State or Union territory is in such a disturbed or dangerous condition that the use of armed forces in aid of the civil power is necessary.

2. State the trigger for the power to fire under section 4(a). That the person is acting in contravention of any law or order in force in the disturbed area prohibiting the assembly of five or more persons, or the carrying of weapons or of things capable of being used as weapons, or of firearms, ammunition or explosive substances, and that the officer is of opinion that firing is necessary for the maintenance of public order.

3. Compare the warning under section 4(a) with the command under section 148 of the Suraksha Sanhita. Under section 148 the command is a condition, and force used without it is outside the section, so the protection in section 151 does not attach. Under section 4(a) the warning is only such as the officer may consider necessary, so its absence does not by itself take the act outside the Act.

4. Why is section 6 said to be more than a protection against unjust prosecution? Because it bars proceedings in respect of anything done or purported to be done, so it applies precisely where the question is whether the officer exceeded his powers, and because the sanction lies with the Central Government, which employs the person to be prosecuted. Its practical effect has been that deaths in disturbed areas went uninvestigated, which is what the Extra Judicial Execution Victim Families Association litigation established.

The answers to it

The means shape the end. The same objection Gandhi made to the revolutionary strand of the freedom struggle. An authority established and maintained by armed force will be organised around armed force, and the courts it holds will not be courts.

It is not accountable, and cannot be. An armed underground organisation cannot be democratic, cannot be transparent about its own internal punishments, and has no remedy for a person it wrongs.

Its own violence falls on the people it claims to act for. The record includes the killing of villagers as informers, which is a punishment inflicted without any process at all by a body claiming to answer arbitrary power.

And the diagnosis being right does not make the remedy right. This is the sentence that carries most weight in an examination answer: the account of the agrarian structure may be accurate, the failure of land reform may be established, and it still does not follow that an armed organisation is the instrument that will fix it.

The State's answer, and its limits

The State's response has had four elements.

Police and paramilitary operations, examined in Module II, whose record includes the encounter and the punitive post.

Security legislation, principally the Unlawful Activities (Prevention) Act 1967, whose membership and bail provisions were taken in an earlier chapter.

Development expenditure in the affected districts, which is the State's own acknowledgement that the diagnosis has something in it.

And the arming of civilians, which the Supreme Court stopped.

The case

Nandini Sundar v. State of Chhattisgarh, AIR 2011 SC 2839, (2011) 7 SCC 547, decided on 5 July 2011.

Facts. The State of Chhattisgarh appointed large numbers of tribal youths, many barely literate, as Special Police Officers on a temporary basis, paid them an honorarium, armed them with guns and deployed them in counter-insurgency operations against Maoists, with little training and, on the Court's finding, little clarity about the chain of command. Allegations were also placed before the Court of violence in March 2011 in the villages of Morpalli, Tadmetla and Timmapuram in Dantewada district, and of violence against Swami Agnivesh and those travelling with him to give humanitarian aid there.

Held, on the appointments. The appointment of Special Police Officers to perform any of the duties of regular police officers, other than those specified in sections 23(1)(h) and 23(1)(i) of the Chhattisgarh Police Act 2007, is unconstitutional. Youths previously so engaged may be employed only for those limited duties, and only if they have not engaged in conduct amounting to violations of the human rights of others or of any disciplinary or criminal law.

Held, on the principle. The Constitution warns that ends do not justify all means, and an essential part of the ends for which the collective power of the people may be used is keeping the means of the exercise of State power within constitutional bounds. The response of law to extremism whose genesis lies in social disaffection must follow a twofold path: remedial social, economic and political policies that lessen the disaffection, and a well trained, professional law enforcement capacity functioning within constitutional limits. Creating a temporary cadre of under-educated youths, many informed by rage, hatred and a desire for revenge, runs counter to both.

Held, on the use of temporary appointees. Using them to make up shortages in the formal police may be an abdication of the constitutional responsibility to provide security through a permanent, properly trained and equipped force. These are essential State functions and cannot be discharged through temporary cadres with varying degrees of State control.

Held, on the inquiry commission offered. The State's offer of a commission headed by a sitting or retired High Court Judge was inadequate. A commission may at best lead to the prevention of such incidents in future; it does not fulfil the requirement of the law that crimes against citizens be fully investigated and those engaging in criminal activity punished. The Court ordered the Central Bureau of Investigation to take over the investigation of the March 2011 incidents and of the violence against Swami Agnivesh and his companions, and to report within six weeks.

Why it matters here. Three things, and each is used later in this book. It is the clearest judicial statement that the State may not answer an insurgency by the insurgency's own methods. It accepts the social genesis of the violence, which is the Maoist diagnosis, while rejecting the Maoist remedy and the State's. And its passage on commissions of inquiry is the sharpest thing in the Indian reports on why a commission is not a substitute for an investigation, which is exactly what Module IV needs.

Worked example

A district administration reports that an armed group has established a presence in forested blocks, holds meetings, collects a levy from contractors, and has killed three people described as informers. The State proposes to arm and appoint local young men as Special Police Officers to assist in operations.

The group's own account. The argument set out above: that the State is itself violent, that its violence is invisible because it is lawful, and that armed action is a response rather than an initiation.

The law's answer to the group. The offences of murder; the Unlawful Activities (Prevention) Act 1967 if the group is a declared unlawful association or its acts are terrorist acts within sections 15 and 16; the Maharashtra Control of Organised Crime Act 1999 or section 111 of the Bharatiya Nyaya Sanhita 2023 where the pattern is a continuing unlawful activity for material benefit; and section 83 of the Juvenile Justice Act 2015 if a child is recruited or used, though that provision reaches only a group the Central Government has declared.

The law's answer to the State's proposal. Nandini Sundar v. State of Chhattisgarh is directly in point, and the appointment of young people as Special Police Officers for counter-insurgency was held unconstitutional.

What the example shows. Both halves of the argument are answered by law, and neither is answered by the other's violence. That is the proposition this chapter exists to establish.

What it does NOT mean

The judgment did not end the conflict, and a student should not suggest it did. It struck down an instrument.

It is not authority that counter-insurgency is unconstitutional. The Court expressly recognised the gravity of extremist activity and required a professional, properly trained force. What it forbade was arming and deploying an untrained temporary cadre.

And accepting the social genesis of violence is not excusing it. The judgment does both at once, and an answer should notice that it can be done.

Quick revision

• The Maoist argument: the structure is the violence; law will not change it; the State's violence is prior; therefore armed struggle from a rural base.
• It aims to displace and replace the State's authority in an area, which is what makes it an insurgency.
• The answers: means shape ends; it cannot be accountable; its violence falls on those it claims to act for; and a correct diagnosis does not validate the remedy.
• Nandini Sundar, 2011: appointing Special Police Officers to do regular police duties beyond sections 23(1)(h) and (i) of the Chhattisgarh Police Act 2007 is unconstitutional.
• The twofold path: remedial social, economic and political policy, and a professional force within constitutional limits.
• Using temporary appointees to cover shortages may be an abdication of constitutional responsibility.
• A commission of inquiry does not fulfil the requirement that crimes be investigated and offenders punished; the CBI was directed to investigate.

Test yourself

1. State the Maoist argument in four propositions. That the everyday condition of the landless and the dispossessed is itself violence produced by the agrarian structure; that law has been tried and has not changed the structure; that the State's violence came first and the armed response is a reply to it; and that the structure will therefore be changed only by armed struggle conducted from a rural base.

2. What is the twofold path in Nandini Sundar? Undertaking the social, economic and political policies that lessen the disaffection giving rise to extremist violence, and developing a well trained and professional law enforcement capacity that functions within the limits of constitutional action.

3. What exactly did the Court hold unconstitutional? The appointment of Special Police Officers to perform any of the duties of regular police officers other than those specified in sections 23(1)(h) and 23(1)(i) of the Chhattisgarh Police Act 2007.

4. What did the Court say about the inquiry commission the State offered, and why is that passage useful elsewhere in this paper? That it was inadequate, because a commission may at best prevent such incidents in future and does not meet the requirement of the law that crimes against citizens be fully investigated and offenders punished. It is useful in Module IV because it is the sharpest judicial statement of the limits of the Srikrishna, Liberhan and Nanavati inquiries.

The qualification, and an answer must give it. A legal order has to keep public order, and the fact that a claim is just does not entitle those making it to obstruct a highway. The proposition is not that public order law is illegitimate. It is that where public order law is the only response, the claim remains, and the next episode is produced by the same cause.

Proposition two: development as a producer of violence

The second word in the title, and the least expected in a criminal law paper.

The claim. A development project distributes its benefits and its costs to different people. The reservoir supplies a city and drowns a valley. The mine supplies an industry and takes a forest. Those who lose are characteristically those with the weakest title: tribal occupants without records of right, tenants at will, and the landless who have no title at all and therefore no claim to compensation.

Why that is violence on this paper's definition. Return to the chapter on what violence means. The harm is avoidable, it is produced by an arrangement rather than by an actor, and it falls on a group selected by a characteristic. It is structural violence with a public purpose.

Where it appears in this book. The displacement chapter in Module II, the Fifth Schedule and PESA, and the litigation about tribal land which reached the courts as a question of alienation and mining leases.

Proposition three: the legal order participates

The third and the sharpest.

The claim. The legal order is not a neutral machinery which sometimes fails. It is one of the instruments by which the violence is done, and it does this in four ways that this book documents.

By defining. What counts as an offence is decided by law, and for most of the period Module II covers the eviction was lawful and the resistance was not.

By procedure. Section 6 of the Armed Forces (Special Powers) Act 1958 and section 151 of the Suraksha Sanhita make the prosecution of official violence depend on a sanction from the officer's own employer. Section 197 of the old Code did the same for public servants generally. The result is not that official violence is lawful; it is that it is not tried.

By delay. A remedy that arrives fifteen years later is a different remedy. The acquittals in the agrarian massacres of Module II and the communal episodes of Module IV are very largely the product of time.

By the gap between the right and the remedy. Article 17 abolished untouchability in 1950. Appa Balu Ingale recorded that the first case under the Act made to enforce it reached the Supreme Court forty-two years later, and that more than seventy-five per cent of cases under it ended in acquittal at all levels.

Worked example: reading one episode through the frame

A public sector project requires land in a Scheduled Area. Tribal families occupying land without records of right are displaced. Some refuse to move. A protest is organised. A prohibitory order is issued. The protest continues, the police disperse it, and there are injuries. Two organisers are detained under the National Security Act. Eleven years later the compensation litigation is still pending and the project is complete.

• Development. The costs fell on people with the weakest title and the benefit went elsewhere. Structural violence with a public purpose.
• Dissent. The claim was never answered. What was answered was the assembly, by an order under section 163, and then the persons, by detention on the ground of public order.
• Violence. Direct, in the dispersal. Structural, in the displacement. And institutionalised, in the eleven years.
• The legal order's part. It defined the occupation as without title, supplied the prohibitory order, supplied the detention, and supplied a remedy too slow to be one.

Nothing in that account requires anybody to have acted in bad faith, and that is the point of the frame. Every officer in it may have done his duty.

What it does NOT mean

It is not a claim that law is worthless. The same book's author was among those who used public interest litigation to obtain the very remedies this paper relies on, and Module II's bonded labour cases are examples of the legal order working.

It is not authority. It is an argument, and an answer should use it to organise a discussion rather than to prove a proposition.

And it does not excuse the violence of those who dissent. Explaining the genesis of violence is not justifying it, which is exactly the distinction the Supreme Court drew in Nandini Sundar when it accepted the social genesis of extremism and struck down both the extremists' methods and the State's imitation of them.

Quick revision

• MU's printed Group V reference list names U. Baxi, Dissent, Development and Violence. It is the only work on violence MU names for this group.
• Dissent: claims are met administratively rather than substantively, by prohibitory orders, detention and public order offences, and the claim survives the response.
• Development: benefits and costs go to different people, and the costs fall on those with the weakest title, which is structural violence with a public purpose.
• The legal order participates, in four ways: by defining what is an offence, by procedure requiring sanction to prosecute officials, by delay, and by the gap between right and remedy.
• Use it to organise an answer, not as authority.
• Explaining is not excusing, and Nandini Sundar shows a court doing both at once.

Test yourself

1. Which work does MU name in its Group V reference list, and why does it matter for this paper? U. Baxi, Dissent, Development and Violence. It matters because it is the only work on violence the University names for this group, and its three terms correspond to the three things Modules II, III and IV are about.

2. State the proposition about dissent, and the qualification an answer must add. That the legal order treats dissent as a law and order problem, answering the assembly rather than the claim, through prohibitory orders, preventive detention and public order offences. The qualification is that a legal order must keep public order, and that the objection is not to the existence of those powers but to their being the only response, since the unanswered claim produces the next episode.

3. Why is development displacement violence on this paper's definition? Because the harm is avoidable, is produced by an arrangement rather than by an identifiable actor, and falls on a group selected by a characteristic, namely those with the weakest title to the land. That is structural violence, and its public purpose does not alter its structure.

4. Name the four ways in which the legal order is said to participate, with an example of each from this book. By defining what is an offence, as where eviction was lawful and resistance was not; by procedure, as in section 6 of the Armed Forces (Special Powers) Act and section 151 of the Suraksha Sanhita, which require sanction to prosecute; by delay, as in the acquittals that follow fifteen-year trials; and by the gap between right and remedy, as in Appa Balu Ingale, where the first case under the Protection of Civil Rights Act reached the Supreme Court forty-two years after article 17 came into force.

The words to notice in section 12 are "negligence in the prevention of such violation by a public servant." That is the clause under which a district administration's failure to act in a riot becomes the Commission's business, and it is the single most useful provision in this Act for this paper.

Section 13 gives the Commission, while inquiring into complaints, all the powers of a civil court trying a suit under the Code of Civil Procedure: summoning and enforcing attendance and examining on oath, discovery and production of documents, receiving evidence on affidavits, requisitioning public records, and issuing commissions for the examination of witnesses or documents.

Section 14 empowers the Commission to utilise the services of any officer or investigation agency of the Central or a State Government for the purposes of an investigation.

Sections 17 and 18 provide for the inquiry into complaints and the steps that may follow. On completing an inquiry the Commission may recommend to the concerned Government or authority the payment of compensation or damages to the complainant or the victim, may recommend the initiation of proceedings for prosecution or other action against the person concerned, may approach the Supreme Court or the High Court for such directions, orders or writs as that court may deem necessary, and may recommend the grant of immediate interim relief.

Section 21 provides that a State Government may constitute a State Human Rights Commission, and section 30 that the State Government may, with the concurrence of the Chief Justice of the High Court, specify for each district a Court of Session to be a Human Rights Court for the speedy trial of offences arising out of violation of human rights. Both are enabling, not mandatory, and the difference matters: a State that has constituted neither has not broken the Act.

Section 36(2) is the limitation: the Commission shall not inquire into any matter after the expiry of one year from the date on which the act constituting the violation of human rights is alleged to have been committed.

The structural weakness, stated plainly

Every power in section 13 is a power of inquiry. Every outcome in section 18 is a recommendation, an approach to a court, or a request for interim relief. The Commission cannot convict, cannot order compensation itself, and cannot compel a Government to accept its findings.

That is not an accident of drafting. A body that could adjudicate would need the procedure of a court, and the reason the Commission is useful is precisely that it is not bound by that procedure. The price of the freedom to inquire is the absence of the power to decide.

And section 36(2) is the second weakness. A one-year bar on a Commission whose subject is State violence is a serious limitation, because the very failures it exists to examine are the failures that delay a complaint: the police station that will not register, the victim who has moved away, the family that does not know the Commission exists. This bar decided the shape of the Commission's involvement in the Gujarat proceedings, which Module IV takes.

Worked example

A settlement is burnt during a communal disturbance. Eleven houses are destroyed and four people die. The police station registered one omnibus complaint against unknown persons and no arrest was made.

What the criminal law will do. Very little, for the reasons this module has already given: no identification, no witnesses who will stay, and an acquittal in due course.

What the Commission can do. Inquire on its own motion under section 12(a), because the complaint is of a violation of human rights and of negligence in the prevention of such violation by a public servant. Summon the officer in charge of the police station and examine him on oath under section 13. Requisition the station diary and the wireless log as public records. Use a State investigating agency under section 14. And on completing the inquiry, recommend compensation under section 18, recommend prosecution of the officer, and approach the High Court for directions.

What it cannot do. Order the compensation. Punish the officer. Or, if the complaint reaches it thirteen months later, inquire at all.

And notice the one thing it can do that no court can. It can find, on the material, that the administration failed, and say so publicly, without needing to prove anything against a named individual beyond reasonable doubt. In a paper about violence that destroys evidence and witnesses, that is not a small thing.

What it does NOT mean

The Commission is not a court. It has the powers of a civil court for the purposes of an inquiry, which is a different thing from being one.

The human rights approach is not an alternative to prosecution. Section 18 expressly contemplates a recommendation to prosecute, and the two run together.

And the definition in section 2(1)(d) is not open-ended. It reaches rights guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India, and the last words matter.

Quick revision

• The approach asks what the State owed, not who is guilty. Standard: Constitution plus the International Covenants. Method: inquiry and report.
• Section 2(1)(d): rights relating to life, liberty, equality and dignity guaranteed by the Constitution or in the Covenants and enforceable by courts in India.
• Section 3: the National Human Rights Commission. Section 21: a State Government may constitute a State Commission. Section 30: the State Government may, with the concurrence of the Chief Justice of the High Court, specify a Court of Session for each district as a Human Rights Court. Both are enabling.
• Section 12: functions, including inquiry suo motu or on petition into a violation, its abetment, or negligence in its prevention by a public servant.
• Section 13: the powers of a civil court for an inquiry. Section 14: use of a Government investigating agency.
• Sections 17 and 18: recommend compensation, recommend prosecution, approach the Supreme Court or a High Court, recommend interim relief.
• Section 36(1): no inquiry into a matter pending before a State Commission or another duly constituted Commission. Section 36(2): no inquiry after one year from the alleged act.
• The trade: freedom to inquire, bought at the price of the power to decide.

Test yourself

1. How does the human rights approach differ from the criminal law approach? It asks what obligation the State failed to discharge rather than who committed an offence; its standard includes the international instruments India has accepted as well as the Constitution; and its method is inquiry and report rather than trial and sentence, so it does not require a named accused or proof beyond reasonable doubt, and cannot punish.

2. Which words in section 12 make a district administration's inaction the Commission's business? The power to inquire into a complaint of negligence in the prevention of a violation of human rights by a public servant.

3. What may the Commission do on completing an inquiry? Recommend payment of compensation or damages, recommend the initiation of proceedings for prosecution or other action, approach the Supreme Court or the High Court for such directions, orders or writs as that court may deem necessary, and recommend the grant of immediate interim relief.

4. State the two structural weaknesses of the Act. That every outcome is a recommendation, an approach to a court or a request for interim relief, so the Commission cannot decide anything; and that section 36(2) bars inquiry into any matter after one year from the alleged act, which falls hardest on precisely the cases where the administrative failure delayed the complaint.

The case that it is relevant

One: it has been absorbed into law, which is a stronger form of survival than a movement. The rule of minimum force in section 149(3) of the Suraksha Sanhita is a legal statement of the same principle: use as little force and do as little injury as is consistent with the object. The right of private defence ends when the apprehension ends. The dispersal ladder requires each step before the next. Article 21 requires the procedure by which life is taken to be fair. None of these came from ahimsa alone, and every one of them says the same thing that ahimsa says.

Two: the Supreme Court has stated the principle in terms. In Nandini Sundar v. State of Chhattisgarh the Court held that the Constitution warns that ends do not justify all means, and that an essential part of the ends for which the collective power of the people may be used is keeping the means of the exercise of State power within constitutional bounds. That is the Gandhian proposition about means and ends, in a judgment striking down a counter-insurgency practice.

Three: the alternative has been tried and has failed on its own terms. The Maoist approach in this module accepts the diagnosis and reaches for arms, and after decades has neither changed the agrarian structure nor been suppressed. The record of armed methods inside independent India is not an argument for them.

Four: the method still works where its conditions are met, and its conditions are met more often now than in 1930, because violence is observed more often. That is a modest claim and it is defensible.

The distinction that resolves it

Most weak answers to this question fail because they treat ahimsa as one thing. It is two.

Ahimsa as a technique of resistance. A method for a group without power to obtain a change from a group with it. Conditional, situational, and not universally available. On this the honest verdict is that it works where the opponent is constrained and observed, and does not work otherwise.

Ahimsa as a principle of restraint on those who have power. A rule about how much force may be used, by whom, and after what. On this the verdict is different: it has been absorbed into constitutional law, into criminal procedure, and into the law of armed conflict, and it is more widely accepted in law today than at any earlier point.

A student who makes that distinction has answered the question, and can then say which half they think the University's word "relevant" is asking about.

A worked answer, in outline

If the question is "Is ahimsa relevant in today's violent global scenario?", the structure that works is this.

1. Define ahimsa, and note that Gandhi's version is a positive force and not abstention.
2. Divide the question into ahimsa as method and ahimsa as restraint.
3. On method, give the four objections above, and give the strongest reply: that the method was used at national scale against a State with an army and the State left.
4. On restraint, give the legal absorption: section 149(3), the private defence limit, the graduated dispersal powers, article 21 after Maneka Gandhi, and the passage in Nandini Sundar.
5. Give Ambedkar, because an answer without the objection is not a serious answer.
6. Conclude. A defensible conclusion is that ahimsa is of limited and conditional relevance as a technique and of central and growing relevance as a principle of restraint, and that this is not a diminished position but a different one: a principle that has become law does not need a movement.

What it does NOT mean

It does not mean the question has one right answer. It has a range of defensible ones, and the marks are in the reasoning.

It does not mean the tradition is only of historical interest. Every provision in the last paragraph is in force.

And it does not mean that relevance is the same as effectiveness. A principle may be relevant, in the sense of supplying the right standard, and be widely disobeyed. Most of this paper is about principles in that condition.

Quick revision

• Divide the question: ahimsa as a method of resistance, and ahimsa as a principle of restraint on power.
• Against relevance as method: it depends on the opponent; it needs an audience; Ambedkar's objection; and the Indian record in Modules II and IV.
• For relevance as restraint: the rule of minimum force, section 149(3); the limits of private defence; the graduated dispersal powers; article 21 after Maneka Gandhi; and Nandini Sundar holding that ends do not justify all means.
• The strongest single reply on method: the method was used at national scale against a State with an army.
• A defensible conclusion: conditional relevance as a technique, central relevance as a principle, and a principle that has become law does not need a movement.

Test yourself

1. What is the distinction that a good answer to this question must draw? Between ahimsa as a technique of resistance used by those without power, whose success is conditional on the opponent, and ahimsa as a principle of restraint on those who have power, which has been absorbed into constitutional and criminal law.

2. Give three legal provisions in which the principle of restraint appears. Section 149(3) of the Bharatiya Nagarik Suraksha Sanhita, requiring as little force and as little injury as is consistent with the object; the limit on the right of private defence, which ends with the apprehension; and article 21 as construed in Maneka Gandhi, requiring the procedure by which life or liberty is taken to be right, just and fair.

3. State Ambedkar's objection in this context and why it must be included. That patience is asked of those who have already waited longest, so a method whose currency is the willingness to suffer demands most from those who have suffered most. It must be included because an answer that presents non-violence as a national consensus is describing a country that has never existed.

4. What does Nandini Sundar contribute to this question? It contains the Gandhian proposition in judicial form: that the Constitution warns that ends do not justify all means, and that an essential part of the ends for which the collective power of the people may be used is keeping the means of the exercise of State power within constitutional bounds.