Difference between Unlawful Assembly & Rioting with Affray

Difference between Unlawful Assembly & Rioting with Affray

Criminal Law Indian Penal Code LAW EXPLAINED
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The Indian Constitution has played an integral role in safeguarding the rights of its citizens. It has not only provided for protection of life and personal liberty but also empowers the citizens to assemble peacefully without arms to practice their freedom of speech and expression. We have witnessed innumerable revolutions that have occurred because of such protests. Thousands of people assemble on the streets to show their opposition for the cause.

Introduction

The Supreme Court in one of its landmark judgment has clearly stated, “Citizens have a fundamental right to assemble and peaceful to hold meetings and to take out public processions. Article 19 (1) of the Indian Constitution envisages that all citizens have the right to freedom of speech and expression, assembly, associations, movement, residence and practising any trade, business and occupation or profession[2]. However, this has been time and often misused by the people of India and these peaceful protests have turned into unlawful assembly causing large scale violence to all.

In order to maintain a check on misuse of such power, the Indian Penal Code, 1860 (hereinafter, IPC) in its Chapter VIII inclusively deals with sections that concern themselves with offences against public disturbance. This consists of unlawful assembly, rioting and affray like concepts of the IPC. The aforementioned offences influence public peace and harmony as a large number of people to assemble and create chaos unlawfully. These offences are not subjected to a particular person, race, and property but to the public at large. The state has a fundamental responsibility to ensure that there prevails public order and in order to maintain such public order, various legal provisions have been made such as Chapter X of the Code of Criminal Procedure and Section 31 of the Police Act.

Unlawful Assembly –

Section 141 of the IPC criminalizes unlawful assembly. According to Section 141, unlawful assembly refers to an assembly of five or more persons who have a common objective to be a part of that assembly. The common objectives could be:

  • To overawe by use of criminal force or display criminal force, to Central or any State Government or Parliament or any State Legislation or any Public Servant;
  • To show agitation against enforcement of a law or legal process;
  • To perform any mischief or criminal trespass or any other offence;
  • Take possession of any property or deprive a person of the right to the way or the usage of water or any incorporeal right by some criminal force;
  • Compel a person to do an illegal act by display or use of criminal force.

Therefore, we can infer that the number of a person in an unlawful assembly should be 5 and they should have a common intention to assemble. The intention to join the unlawful assembly should be free; no one should influence the decision. The mere presence of any individual does not make him liable for the offence of unlawful assembly. In a case[3], the court held that the common intent should one among enlisted in Section 141, this intent can be formed on the spur of the moment.

The IPC has made provisions for punishing the people who hinder public tranquillity. Section 143 of the IPC imposes imprisonment which can extend up to a period of 6 months or fine or both. Section 144 of the IPC clearly states that if people assemble unlawfully with deadly weapons with a possibility to cause death then a punishment of imprisonment is imposed which can extend up to a period of 2 years or fine or both.

Rioting-

Rioting refers to when more than 5 persons assemble unlawfully with a common intention and engage themselves in violent activities. Section 146 of the IPC deals with the concept of rioting which reads as –

Whenever force or violence is used by an unlawful assembly, or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.[4]

The punishment as stated in Section 147 of the IPC says imprisonment of either description for a term which may extend to two years, or fine, or with both. The punishment simultaneously changes in Section 148 of the IPC which deals with rioting with deadly weapons. Their imprisonment may extend to a period of three years.

Affray-

Section 159 of the IPC envisages, “When two or more persons, by fighting in a public, disturb the public peace, they are said to “commit an affray”.[5] There cannot be an affray till the second person does not react to the assault.  There are three essential elements to an affray:

  • Two or more persons should fight;
  • Must disturb the public tranquillity;
  • The conflict must be in a public place.

The punishment as mentioned in Section 160 of the IPC says that there would be imprisonment with may extend up to a period of one month or fine which may extend up to 100 rupees or both.

Conclusion –

Protests are fundamental for human rights and democratic society. It establishes a check on the arbitrary and abuse of power by the dominants. Like any other thing public protests sometimes work for the betterment of the public but sometimes result in violence and disturbance of public peace. In order to maintain the public order, various legal provisions have been made to create a check on such assemblies. It is by these minute nuances we can differ whether the offence was of unlawful assembly or rioting or affray and then decide the course of punishment to be given to the offenders who have disturbed the public peace or had an intention to disturb the public peace.

Sources:

[1] Ramlila Maidan Inccident vs. Home Secretary, Union of India (2012) 5 SCC 1

[2] Universal’s The Constitution of India Bare Act (2020)

[3] Bhanwar Singh v. the State of M.P., (2008) 16 SCC 657

[4] Universal’s The Indian Penal Code, 1860 Bare Act (2020)

[5] Universal’s The Indian Penal Code, 1860 Bare Act (2020)

This blog is written by Jaya Singh, Amity University.

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