BNS Section 189: Unlawful Assembly

Explanation.—Subsection (1) of section 189 also has an explanation to clarify that even if a group of five people have not assembled with the intent to perform any of the above activities but in the course of events, the main objective of the gathering steers in the direction of any of the above, it will still be declared an unlawful assembly. This is to say, that intent and action don’t necessarily need to flow in any particular order. An assembly of five or more with the intent to perform the above actions but who don’t perform the actions are considered as offenders under this section. At the same time, an assembly of five or more who did not intend to perform the above action but through circumstances caused any of the above, then they would fall under the ambit of this section as well and shall be prosecuted to its full extent.

(2) If a person who was not part of the original assembly but joins it later shall also be considered equally culpable in the prosecutive action that follows. However, awareness is the key point here. This subsection clarifies that such a person should have joined the assembly despite knowing that it is an unlawful assembly. If the person can prove that he or she was not aware or had misunderstood or had been misled at the time of joining the unlawful assembly, he or she can be rescued as a member of the unlawful assembly. At the same time, if the prosecution can prove that there were ample signs or indications for a reasonable person to understand that the assembly was unlawful and the said person was unaware purely because of his or her gross negligence, then the such person may still be culpable under the provisions of section 189. Such a person, who joins an assembly after it has been deemed unlawful under the law, shall be punishable with a fine as deemed appropriate by the judge or a jail term of up to six months, or both if the consequences of such assembly are grave.

(3) When there has been a gathering of five or more people who have been specifically asked or ordered to disperse by an officer of the law but does not do so, then such an assembly is stopping such an officer from executing the law and hence becomes an unlawful assembly under the provisions of this section. If a person joins such an unlawful assembly despite being fully aware that it has been ordered to disperse, then such a person will also be considered as a part of the unlawful assembly even though the person was not part of the group at the time it became an unlawful assembly. In simple words, it is not just the ones who have disobeyed the order to be dispersed that will be held accountable. Any person who joins the ones who have disobeyed this order shall also be considered as a part of the group and prosecuted in cohesion with the whole group. However, it must be noted, that if such a person can prove that he or she was not aware or had misunderstood or had been misled at the time of joining the unlawful assembly, he or she can be rescued from the unlawful assembly. At the same time, if the prosecution can prove that it had been made plainly evident that the assembly had been asked to disperse and that any reasonable person would have been aware that such an order had been issued, then the lack of awareness will be attributed to gross negligence on part of the person and he or she shall be punished with imprisonment that may extend to two years, or with fine, or with both, at the discretion of the presiding judge. Another statement to be noted is the use of the word “continues in an unlawful assembly”. This means that only those who continue to be part of the assembly after they have been ordered to dismiss will be prosecuted. If a person leaves such an assembly on being asked to disperse, he or she may be recused from prosecution.

(4) If any person is armed at the time of joining an unlawful assembly, he or she shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. It states that the person must be armed with a deadly weapon, i.e., a weapon that is capable of causing death. Further, it also clarifies that even if the person is armed with an item that is not necessarily a weapon but if wielded as one, can cause death, then such person is also culpable under this section. This could be any item that is sharp or heavy, like a nail or a hammer. It must be noted here, that this subsection refers to the offender as a person, armed with such equipment, and is part of an unlawful assembly. This implies that the person has joined the assembly despite being aware that it is an unlawful assembly. If such a person can prove that he or she was not aware or had misunderstood or had been misled at the time of joining the unlawful assembly, he or she can be rescued from the unlawful assembly. If the prosecution can prove that there were ample signs or indications for a reasonable person to understand that the assembly was unlawful and the said person was unaware purely because of his or her gross negligence, then such person may still be culpable under the provisions of section 189.

(5) If there is a gathering of five or more people that has been asked to disperse because it is likely to cause a disturbance to public peace, then any member who does not disperse shall be considered to be a member of an unlawful assembly. Further, any person who joins such a gathering after it has been asked to disperse shall also be considered to be a member of an unlawful assembly. However, if such a person can prove that he or she was not aware or had misunderstood or had been misled at the time of joining the unlawful assembly, he or she can be rescued from the unlawful assembly. On the other hand, if the prosecution can prove that there were ample signs or indications for a reasonable person to understand that the assembly was unlawful and the said person was unaware purely because of his or her gross negligence, then such person may still be culpable under the provisions of section 189. The punishment for this offence shall be imprisonment for a term which may extend to six months, or with fine, or with both.

Explanation.— An explanation has been added for the purpose of clarifying the difference between subsection (3) and subsection (5) because even though both of them deal with persons “joining or continuing” with an assembly that has been ordered to disperse, the quantum of punishment is vastly different, with (3) carrying a prison sentence of two years whereas (5) only of six months. It explains that if the gathering falls under the definition of ‘unlawful assembly’ as described in subsection (1) and has been asked to disperse, then the provisions of (3) come into effect. Whereas, if the gathering does not fall under the definition of ‘unlawful assembly’ as specifically outlined in subsection (1) but has still been asked to disperse due to the likeliness of causing public disorder, then the provisions of subsection (5) come into effect. Subsection (5) mostly refers to gatherings such as public protests, whereas subsection (1) refers to gatherings of a more criminal nature.

(6) If a person who has been accused of participating in an unlawful assembly is found to have been hired, engaged, employed or promoted by someone else who was not present in the gathering, then that person will be considered equally accountable in the prosecution unlawful assembly as if he was present and had personally participated in the said unlawful assembly. In other words, if a person is found responsible for instigating an unlawful assembly, then he or she will be punished equally, even though they did not actually participate or call for the unlawful assembly.

(7) If a person shelters any member of an unlawful assembly on a property owned, occupied or controlled by them, then such a person will be equally culpable as a member of the unlawful assembly even if they have not participated in or instigated it. Further, it also states that if the shelter has been provided prior to the unlawful assembly, it will still attract the provisions of section 189. However, the key provision here is that such a shelter has to be provided after knowing that such person(s) have participated or about to participate in an unlawful assembly. If such a person can prove that he or she was not aware or had misunderstood or had been misled at the time of providing the shelter, he or she can be rescued from the provisions of this section. On the other hand, if the prosecution can prove that there were ample signs or indications for a reasonable person to understand that the person(s) had participated in an unlawful assembly or are about to participate in an assembly that can be deemed unlawful, and the said person was unaware purely because of his or her gross negligence, then such person may still be culpable under the provisions of section 189. Any person convicted under this subsection shall be punished with imprisonment which may extend to six months, or with fine, or with both.

(8) If a person participates in an unlawful assembly as described in subsection (1) purely because they have been hired, engaged or employed by someone else in return for remuneration, then such a person shall be punished with imprisonment which may extend to six months, or with fine, or with both.

(9) In continuation of subsection (8) if the person who has been hired, engaged or employed to participate in an unlawful assembly does so while being armed with a deadly weapon then he or she can face a prison sentence of up to two years, or fine, or with both. Further, it also clarifies that if a person in the unlawful assembly is found to be in possession of any item which can cause death, if used as a weapon, then such person will be prosecuted as if they were armed with a deadly weapon and attract the provisions of this subsection. This refers to everyday items which may be sharp (e.g, nail), heavy (e.g, hammer) or inflammable (e.g, lighter),