Unlawful Assembly: The Five Common Objects
Chapter Seventeen
Syllabus topic 1.1, "Notions of "force", "coercion", "violence""
Pages 64 to 67 of 663
In one line
An assembly of five or more people is unlawful if its common object is one of five things, and everything the criminal law does about a crowd begins with proving that.
In the wording a student can write in an exam: under section 189(1) of the Bharatiya Nyaya Sanhita 2023, an assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing it is: 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 any incorporeal right, or to enforce a right or supposed right; or by criminal force to compel any person to do what he is not legally bound to do, or to omit what he is legally entitled to do.
Why the law has this at all
Because a crowd is not itself an offence, and it must not become one. People assemble constantly, for prayer, for weddings, for markets, for protest, and article 19(1)(b) of the Constitution guarantees the right to assemble peaceably and without arms.
So the law needs a rule that separates an assembly the State may disperse from one it may not, and section 189 is that rule. It does the work with two requirements: a number and an object. Below five, no unlawful assembly. Outside the five objects, no unlawful assembly however many are present.
Everything else in this part of the law depends on section 189. Rioting under section 191 requires an unlawful assembly. Liability of every member under section 190 requires it. The power to disperse under sections 148 to 151 of the Suraksha Sanhita requires it. If the assembly is not unlawful, none of the rest follows.
Broken down
The number: five or more. A hard requirement. Four people with the worst object in India are not an unlawful assembly, and if two of five accused are acquitted the charge under section 190 may collapse for the rest.
The object: common, and one of five.
- To overawe by criminal force, or show of criminal force, the Central Government, any State Government, Parliament, a State Legislature, or any public servant in the exercise of lawful power.
- To resist the execution of any law, or of any legal process.
- To commit any mischief or criminal trespass, or other offence.
- By criminal force or show of it, to take or obtain possession of any property, or to deprive a person of the enjoyment of a right of way, of the use of water or of another incorporeal right in their possession, or to enforce any right or supposed right.
- By criminal force or show of it, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Unlawful Assembly: The Five Common Objects
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.
Unlawful Assembly: The Five Common Objects
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
| Unlawful assembly, section 189 | Rioting, section 191 | Affray, section 194 | |
|---|---|---|---|
| Number | Five or more | Five or more, since it needs an unlawful assembly | Two or more |
| Force used? | Not required | Required; that is the difference | Required |
| Place | Anywhere | Anywhere | A public place |
| Common object | Required, one of five | Required | Not required |
| Punishment | Six months, or two years after a command to disperse | Two years, five if armed with a deadly weapon | One month, or a fine up to one thousand rupees, or both |
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.
Unlawful Assembly: The Five Common Objects
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 rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.