Open Access Research Article
SECTION 149 AND ITS CLASH BETWEEN ARTICLE 19
Published Paper
Article Details
SECTION 149 AND ITS CLASH BETWEEN ARTICLE 19
AUTHORED BY
- SHRI SUDHARSAN
Abstract :
The paper aims to study, analyse and review the section of 149 and its
relevance with criminal law and constitutional law. Unlawful assembly was
inserted into the ipc generally to
prohibit groups from engaging in activities that pose a threat to public safety
or property. The primary objective of such laws is to prevent the outbreak of
violence and protect the public from harm. Unlawful assembly sections are often
used by law enforcement officers to disperse groups that are deemed to be a
threat to public safety. When such an assembly is declared unlawful,
participants may be arrested, charged, and prosecuted for their involvement in
the event. And the paper aims to question the scope of the grounds on which
such an assembly could be held unlawful by law as there is no clear grounds
mentioned under directly. The paper’s central focus is on section 149 and the
main aim is to show by this paper that the section is vague and needs more
interpretation
Keywords : arrested, charged, public, interpretation, unlawful assembly.
Research question:
Is the definition
under section 149 satisfactory?
Introduction :
This research paper majorly focuses
on Section 149 which deals with unlawful assembly and under offences against
the public Tranquillity, chapter VIII of the Indian penal code.The section has
been the subject of much analysis and criticism, particularly in the context of
its potential misuse by law enforcement agencies.And the objective is to provide an in-depth analysis of section
149 IPC and its criticisms, with relevant case laws .Unlawful assembly is
defined under section 141 of the IPC which states that any assembly which has
five or more persons is under law designated to be unlawful assembly where and
if the common object of such persons designated to compose of the assembly is to either overawe by criminal force or
showing criminal force against state or public servant who is in exercise of
lawful power and also anyone who is trying to resist against the execution of
any laws or legal process or commits any mischief or criminal trespass , by use
of Criminal force or with the show of criminal force tries to take or obtain
possession of property or to do deprive a person of enjoyment of any his right
guaranteed by law is in accordance with the act has committed the offence of an
unlawful assembly which is against the public Tranquillity.
Analysis:
Anyone who is being a member of an
unlawful assembly after knowing that the assembly in such a way gathered is
against law according to section 141 intentionally and continues to be in that
assembly is said to be a member of the unlawful assembly as per section 142 of
the IPC ,And they will be treated in the same manner as the person committing
the offence in the unlawful assembly even though they were just part of the
assembly and didn't have any physical or mental element such as that of the person committing the offence. For such
offence they can be sentenced to imprisonment which may extend to 6 months or
with fine or even both according to section 143 and if they have any deadly
weapon with them they will most likely be awarded with imprisonment for a term
which may extend up to 2 years or with fine or both. The actual conflict of
laws occur under section 149 “ every member of an unlawful assembly guilty of
an offence committed in prosecution of common object”The explanation is as follows,
when an offence is committed by any member of an unlawful assembly and if there
was a common object, where any of such members of the assembly knew that such
an offence can be committed in prosecution of that object, everyone who were
there at the time of committing of that SM is a member of the unlawful assembly
and is guilty of that away[1].
The way the section has been drafted
has been involved in constant arguments and criticism because in general
unlawful assemblies include people who gather for a common cause in a very
large groups which in most of the cases would either be labourers protesting
against unfair labour practices nor the general public who would protest
against any particular new law passed by the Parliament which they think is
either unconstitutional in nature or would have a negative effect in their
daily lives,and making the whole assembly liable even if a single person in the
assembly commits an offence is both against the constitution and the the basic
principles of criminal law as anyone can enter a public assembly if the public
is protesting against a particular new act,amendment or whatsoever ,and the way
the act is interpreted it can be conferred that any person who is in
disagreement with public protesting in peaceful means according to article 19
(1) (a), 19(1)(b) against any law or
judgement (the jallikattu case for instance) can not only prevent the whole
protest by causing any unlawful act which is infringing their fundamental
rights but can also make the innocent people who had no mens rea nor actus reus
be guilty for the offence which they hadnt committed[2].
Actus Reus and Mens Rea:
The actus reus of a crime refers to
the physical or external component of an offense, while the mens rea refers to
the mental component if any present during the
crime. The actus reus and mens rea are the basic elements and
requirements which constitutes a crime. However, Section 149 does not make it
clear what the actus reus and mens rea requirements are for an individual to be
held responsible for the offense committed by an unlawful assembly. In other
words, it does not define the specific act or omission of an individual to be
held responsible for the offense. There may not be everyone in an unlawful
assembly who show any actus reus but the law is drafted in such a way that they
can be liable even if they didn't have any mens rea which against both the principles
of democracy and the criminal law .The causation principle which in layman's
terms means any criminal act or civil act would necessarily and requires a
direct causal link between the actus reus and the mens rea with the harm caused. However, in the case of an
unlawful assembly, it is often difficult to establish this causal link . This
is because the individual members of the assembly may have differing levels of
involvement in the commission of the crime and some people may even be
completely innocent. Even if some members might have participated in any
unlawful act or committed any crime, while others may have merely been present
but not involved in the commission of the offense ,everyone would be held
liable under the section.The concurrence principle requires that the actus reus
and mens rea must occur simultaneously.
Violation of Principle of Individual
Responsibility:
The principle of individual
responsibility is a fundamental principle of criminal law which includes the
mens rea and actus reus part, which states that an individual can only be held
responsible for the offence committed by him. However under Section 149 ,this
principle is again being violated by holding every member of the assembly
responsible for the offence committed by the assembly. This means that an
individual who did not actively participate in the offence can still be held
responsible for it, merely by virtue of their membership in the assembly. The
section has not defined what constitutes an "unlawful assembly," which
can lead to confusion and misuse of the provision. It is up to the discretion
of the law enforcement officers to determine whether an assembly is unlawful or
not, which can lead to arbitrary and discriminatory application of the
provision as most of these assemblies occur in order to protest against any
government provision which the general public any particular section of the
society might feel is against the laws of democracy .Collective responsibility
under Section 149 can also violate an individual's right to a fair trial. The
provision can be used to prosecute individuals who were not involved in the
commission of the offense just because they were part of the assembly. This can
result in a violation of the individual's right to a fair trial, as they may be
held responsible for an offense they did not commit.
The major criticism of the act is
that the concept of common object is so vaguely defined that the court or the
government can use it and interpret it as it deems fit and not through any
proper standard interpretation which might disrupt the way laws are supposed to
be functioning from a positive school of thought.And the words “in prosecution
of the common object” creates more confusion as it can be interpreted that any
person in a lawful assembly before it turns unlawful by his particular unlawful
act which was for the prosecution of the common object would make the assembly
unlawful and also make the other people in the lawful assembly who gave their
consent only to protest in a peaceful way be liable for the acts of that one
person who acted unlawfully and this is against the fundamental right of right
to freedom of speech and expression.The right to protest is an essential part
of the right to freedom of speech and expression, which is a fundamental right
guaranteed by the Indian Constitution. In the case of Ramlila Maidan Incident
v. Home Secretary, Union of India[3],
the Supreme Court of India held that the right to protest is a fundamental
right of citizens under the Indian Constitution. The court observed that the
right to protest is an essential ingredient of a democratic society and cannot
be curtailed unless it turns violent or leads to public disorder, which is
where again in prosecution of a common object is deeply criticised under section
149 where even sections like 34 ipc only deals with the principle of common
intention where people can be prosecuted for an offence where only if they
share the common intention which includes the mental element of committing a
crime and there is also the need to prove the involvement of the common
intention before or during or after committing the offence whereas no such
thing is required for section 149 which again makes it unconstitutional.
Case laws:
Even in the case of Himat Lal K. Shah v. Commissioner of Police,
the Bombay High Court held that the right to protest is not only a fundamental
right but also a constitutional duty where the social activist was arrested for
conducting various public meetings on the grounds that his act could cause
public nuisance and disorder where he argued that the bombay police act did not
have any provisions which states that there had to be any prior permission
obtained for such and that the commissioner had not enough powers vested with
him to arrest the accused and that it was violative of article 22 of the
constitution. The court observed that citizens have a right to express their
grievances and opinions in a peaceful manner, and the government has a duty to
facilitate such expression and fundamental rights preside over any other laws
.However just like any fundamental right even these rights are not absolute and
are subjected to some reasonable restrictions.
In the case of Srikantiah & Ors
State of Mysore, 1958 The court's primary intention was to charge everyone with
the common object for the murder of deceased Anne Gowda where the court stated
that the common object of the unlawful assembly was to murder and Anne Gowda
and sentenced all the appellants to transportation for life in the district
court but the appellants proceeded to the High Court and they pleaded it was
one of the serious injuries caused by the appellant number five Sanjeeva Rao
and their common intention in the unlawful assembly was not to kill the individual .Photo also
found that none of the members of the unlawful assembly had the common
intention to kill Putte Gowda Action for murder under section 302 was
unsustainable and there was no less concrete evidence to prove the common
intention and the appeal was dismissed.This is one example where the judiciary couldn't prove the proper
connection of common object in the unlawful assembly ,but taking another
example for instance in the case of M/s Sterlite Industries (India) Ltd v/s
Tamil Nadu Pollution Control Board is yet another case of violation of section
149 and an important landmark environmental law case.The sterlite industry
which was a copper smelting factory
which was located in Tuticorin and was belonging to the Vedanta group citrus
multinational corporate, In this unit was alone responsible for the 20% copper
production in India [4].
There were various political
criticism which included that the particular project was denied by both
Maharashtra and Goa governments but surprisingly found some refugee in the
south and was set up in Tamil Nadu.There were reports of large emissions of SO2
both in the atmosphere and in the groundwater which affected thousands of
residents of Tuticorin There are verified reports of polluted groundwater
levels , increasing cancer patients and also a common asthma complaints and
other several health and skin diseases after the emergence of this sterlite
factory . Hey violated various provisions of the air act, water act and the
national Green Tribunal act. But the most important sections were section 21 of
the air act which granted the power to grant consent to establish or operate
certain industrial plans and vise versa and section 31 of the air act which granted
the power to give directions for such industries and Section 19 (4)(e) of the
national Green Tribunal act which issues commissions for examination of
witnesses or documents even section 31along with section 18 of the water act
.When things got tense even the government became serious in dealing with this
issueThe respondent board gave instructions to the super acting engineer of the
Tamil Nadu electricity board to discontinue the supply for the particular
smelting company after this When during the manufacturing process a certain
amount of sulphur dioxide is released this process was actually regulated using
an analysis supported by software which the respondent Board has recommended S
for using it as a tamper proof system and they crossed the limit which was set
by the government.Graph which showed the trend of sulphur dioxide to ambient
air quality indicated that the emission of the gas has suddenly rising from 20
g to 62 g per M3 and that the sulphur dioxide monitor was not connected with
the air centre of respondent board.
The case Tamil Nadu pollution control
board vs Sterlite Industries Limited limited is a Supreme Court case which was
led by justice Chandrachud and various other senior advocates like Rohini Musa
and Aryayama Sundaram who argued for the plant vigorously .But in the end due
to the gas leaks which was during the month of march and all other claims put
forth the Honourable Supreme Court imposed a fine of rupees hundred crores to
the plant and Vedanta groups for polluting the environment and dumping wastes
in various places .the company at first tried denying the fine stating it was
unfair ,but the court asked them to pay it within a period of 5 years.the plant
was finally shut down after months of protesting and many lives at stake being
lost. The actual issue relating to the paper was where the people were
protesting peacefully the law enforcement department were given certain
instructions and they started firing against the citizens due to some unlawful
activities of certain individuals during the protest against the regular
protocols which led to the death of 13 individuals by the police in the ambit
of unlawful assembly , this is one of the major reasons why the section is
being criticised as the those 13 deceased had no common intention of protesting
through any unlawful means and the common intention of the group too was to
protest peacefully using lawful means[5]
Conclusion:
Unlawful assembly as seen in the
paper is a complex issue that requires careful consideration from lawmakers and
law enforcement agencies. On the one hand, the right to peaceful assembly is a
fundamental human right that is enshrined in many national and international
legal frameworks. On the other hand, the potential for unlawful assembly to
escalate into violent or destructive behaviour is a serious concern that cannot
be ignored.While there are some general guidelines that can be used to
determine whether a gathering is legal or not, such as whether it poses a
threat to public safety or property, there is often a great deal of
subjectivity involved in these assessments. And this again shows the need for a
wider application of this law .While it is important for police to maintain
public safety and prevent criminal activity, there is also a risk that their
actions may be perceived as heavy-handed or infringing on individuals' rights
to peaceful assembly It is important for lawmakers and law enforcement agencies
to strike a balance between protecting public safety and upholding the right to
peaceful assembly. Hence we saw how the application of unlawful assembly works
under the indian penal court and the need for a more detailed description of
the section is evident as you have read the paper , unlike other section where
the judge applies the law and interprets
the law and decides the judgement , here it much like the judge interpreting
his own interpretations on the case with the ambit of the section rather than the laws deciding the judgement.From a
positive school thought of view the interpretation of this section would come into deep criticism as
their prime objective is that laws are meant to applied as they are and not
what they ought to be .we would like to conclude that the prime aim of the
paper is to make the readers understand the need for better interpretation with
better and clear definition of this section of ipc ass the current one lacks
clarity and is conflict of many laws and also that it’s vagueness can lead to unclear
interpretation of law.
Article Information
SECTION 149 AND ITS CLASH BETWEEN ARTICLE 19
Authors: SHRI SUDHARSAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/26
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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