Public Tranquility

Introduction:

In any civilized society, peace and tranquility are essential for development in order to live a healthy life. The reason being, it helps the people of the society to advance and constantly evolve. The Indian Penal Code, The Code of Criminal Procedure, and The Police Act are some few acts that govern the provisions for the maintenance of public order and tranquility.

Specifically, the Indian Penal Code, 1860 has mentioned, in Chapter VIII under Sections 141 to 160, offenses against Public Tranquility. They are known as group offenses as they include a large number of people who are individually held liable under unlawful assembly, rioting, promoting enmity, and affray. Whereas, Chapter X of the Code of Criminal Procedure has highlighted and laid down the duties, functions, and powers that the Executive Magistracy and the Police possess in order to maintain public order and tranquility.

Public Tranquility

Striving to maintain and preserve public order and peace is a primary objective and fundamental duty of the State. In simple terms, tranquility means attaining a state of complete serenity and calmness. When discussing “Public Tranquility”, it means that in a society, some prerequisites include maintaining peace and tranquility coupled with morality. This is with the intention of letting the country not only evolve but also thrive and reach the zenith of good governance.

Hence, in order to achieve the same, certain provisions have been laid down in various Acts enabling the government to provide a peaceful and tranquil environment to all the citizens. Offenses against public tranquility are those which harm and result in serious damages to properties or interferes with an individual’s or public’s peace. Besides, unlawful assemblies or riots or mass destruction of public property or vehicles not only disrupt the everyday life of citizens and society as a whole but end up hampering the public tranquility which sums up to be a serious offense.

Offences against Public Tranquility

Offenses against Public Tranquility can be broadly categorized as follows-

• Unlawful Assembly
• Rioting
• Affray
• Promoting Enmity between different classes

1. Unlawful Assembly

Under Section 141 of The Indian Penal Code, unlawful assembly is described as “a gathering of 5 or more persons who have a common object”. This object means a purpose which must be shared/possessed by all the members of this unlawful assembly. The underlying rationale behind having a common objective is to determine the real aim or nature of the said assembly especially if it is unlawful or not. The “object” can be as follows-

• To intimidate any public servant who is exercising his power by using criminal force;
• Committing any kind of mischief or crime of any offense;
• Opposing due process of law from being carried out;
• Forcing an individual to do something that is not legal or stopping him from doing something he is legally entitled to carry out;
• Obtaining possession of somebody else’s property by depriving them from enjoying their rights to the same.

It goes without saying that the common object has to be completely unlawful. A peaceful and a cordial gathering of 5 or more people in an assembly wherein there is no motive to infringe the surrounding peace is not punishable under this section. Likewise, a peaceful gathering for any reason cannot be deemed unlawful unless proved. It is also possible for a lawful assembly to turn unlawful. Any individual who joins the assembly should be aware of the assembly being lawful or not. Furthermore, he must share a common intention with the other people to disturb public peace and order.

Likewise, a person who was initially partaking in the unlawful assembly but then later withdrew from it also suggests that he didn’t have a common intention and can no longer be deemed to be a member of the unlawful assembly. In the State of Maharashtra v. Joseph Mingle Koli (1997) 2 Crimes 228 (Bom),the Court was of the view that in case of an unlawful assembly, every member of the assembly will be held vicariously liable for the offense committed by any other member in an unlawful assembly purely on the basis of the members sharing a common object which is stated under Section 149.

Section 142 and 143 lays down the provision that every participant of an unlawful assembly who continues to be a member can be punished with 6 months imprisonment or levied a fine or both. Section 144 lays down that if a participant joins an assembly with a deadly weapon, he can be imprisoned for 2 years along with a fine. And Section 145 dictates that if a participant joins or continues to be a part of an unlawful assembly specifically after the assembly has been instructed to be dispersed, he shall be imprisoned for 2 years.

Similarly, Section 150, 151 and 158 states the punishment for hiring people to join an unlawful assembly or riot whereas Section 154 states the liability of owners on whose property, any unlawful assembly or riot was committed, if they failed to mention it or give a notice to the police station. Moreover, if anybody knowingly harbours a person hired to form an unlawful assembly under Section 157 then he shall be imprisoned for 6 months or fined or both.

2. Rioting

Historically, rioting used to occur quite frequently due to people’s dissent and grievances in contradiction of the government policies, dissatisfaction against any legal judgment, oppression suffered at the hands of the upper classes, conflicts against casteism, communal disharmony etc.

Riots are mainly due to civil unrest that is led by various groups of people who often lean towards violence to put forth their views against their opposition i.e. the government or people at large. Section 146 states that if members of an unlawful assembly use force or violence, then every participant of such assembly will be held liable for the offense of rioting under prosecution of the common object. Rioting is basically an unlawful assembly but with the presence of violence.

To constitute a crime of rioting, the following 4 points are to be proved:

• 5 or more accused should have formed an unlawful assembly
• Common unlawful object
• Force or use of violence by any participant of the unlawful assembly
• Force or use of violence with the aim of any common object

If the common object is proved to not be deemed illegal, then it cannot, under any circumstances, be held as rioting even if any participant of such an assembly uses force. Moreover, there must be an actual resort to using force and not a mere show of force is necessary. In Sunder Singh vs State of Uttar Pradesh, (1956) AIR SC 411, it was held by the Court that if a number of men who are assembled at a particular place, run away on being attacked by persons belonging to the opposite camp, they cannot be held guilty under the crime of rioting.

Under Section 147 a person can be imprisoned for 2 years or levied a fine or both. However, Section 148 states that if a deadly weapon or any firearm for that matter is being used which may result in causing death, then the person carrying this deadly weapon shall be imprisoned for 3 years or levied a fine or both. Section 152 carries a term of imprisonment for 3 years if a member has assaulted or obstructed a public servant during riots.

3. Affray

Affray refers to public fights that disrupts the daily harmony and public order. The essential ingredients to form an offense under affray are- the presence of 2 or more people and their actions should affect the peace and serenity of the surroundings they are in and create a disorder.

In fact, in August 1979, there was a confrontation between a group of aboriginal Australian people and a group of white people in front of a Taree Sailing Club. Even though it was evident that there was a dispute between the aboriginal people and the white people, only the aboriginal people present were charged for committing affray[1]. The apathy of police towards aboriginal people derived from negative stereotyping. And this same principle can also be applied here in India wherein people are discriminated against and when they raise their voices against such injustices, they pay the price while the others are let off scot-free.

In Sunil Kumar Mohakud @ Mahakhuda … vs State of Orissa, (2008) I OLR 744, it was laid down that it is not necessary for an offense to be carried out in public in order to deem it as affray. In fact, any offense which is capable of causing commotion in public should be termed as an affray. In C Subbarayudu v. State of Andhra Pradesh, (1996) Cri LJ 1472,the Court was of the view that in order to establish affray, there must be a public fight and it cannot be held as affray when only one party is violent and the other is unreceptive as there must be equal retaliation from both parties. The maximum punishment is 1-month imprisonment or fine or both.

4. Promoting Enmity between Different Classes

Section 153A was introduced in 1898 in the Indian Penal Code to curb any disturbance caused due to opposing views or conflicts and exploitation or manipulation amongst various classes of people that led to disharmony or affected public peace. The section holds any person guilty who commits an act that is detrimental or even injurious towards maintainingharmony between different religious, racial, language or regional groups or castes or communities, and which may disturb the public tranquility.  Further, any sort of movement with the use of force or violence against any classes of people shall also fall within the purview of Section 153A.

Additionally, any activity or development by individuals against any language, religion, or gathering or caste or particular members of a community that may cause a feeling of impending dread or fear or instability among individuals belonging to such community or caste shall be held responsible for promoting enmity. But then again, this Section has been deemed unconstitutional and challenged on the ground that it violated the freedom of speech and expression that is enshrined in our Constitution under Article 19(1)(A). That is because this section tries to constrain an individual’s speech and acts.

Nevertheless, the Judiciary has consistently preserved the rationality of Section 153A, stating that this section is obligatory to sustain peace and order along with the State’s sovereignty.

In order to be held accountable under this section, the existence of two opposing communities is imperative along with intention. Mere derogation of the feelings of one community without any reference to any other community cannot be considered to bring about a charge under this section. The Court held in Bilal Ahmed Kaloo v. State of Andhra Pradesh; (1997) 7 Supreme Today 127,that, Mens rea is an indispensable element that must be considered in order to constitute an offense under section 153A of IPC.

Besides, Section 153B was introduced in 1972 to keep a check on the rising caste and communal strains that were steadily developing all over the country leading to disharmony amongst different communities. An individual can be imprisoned for up to 3 years or fined or both if convicted under this section. Not surprisingly, an additional clause states that if the same offense has been perpetrated inside any religious place then an individual can be imprisoned for up to 5 years and levied with a fine or both.

Code of Criminal Procedure Provisions

Chapter 10 under the Code of Criminal Procedure, 1973 also deals with “Maintenance of Public Order and Tranquility”. It has laid down stringent preventive provisions in order to facilitate a smooth mechanism to maintain public peace and order, especially during urgent times.

1. Unlawful Assembly: Section 129 to Section 132 refers to the curtailing of unlawful assemblies. As per Section 129, any executive Magistrate or officer in charge of a police station or, any police officer, not below the rank of a sub-inspector, has the right and the power to pass an order directing any unlawful assembly, or even an assembly of five or more people if it appears that the assembly could disrupt public peace to disband and disperse. Once the order has been passed, the onus lies on every member of the assembly to quickly disperse to avoid any repercussions. When an unlawful assembly does not disperse or is reluctant to disperse, it can be forced to diffuse with the use of force or with the aid of armed forces as ordered by an Executive Magistrate.
2. Public Nuisances: It is an act or omission which causes any injury, obstruction, danger, or annoyance to people or even residents living in any locality or in the vicinity or people with a public right. Causing a public nuisance is a threat and a huge hindrance to public peace and security. A conditional order can be passed by any Magistrate under Section 133, in case of public nuisance caused by any of the things as specified under the section.
3. Urgent Cases of Nuisances or Danger: Section 144 becomes operational when there are urgent cases of nuisance or imminent danger. Once satisfactory grounds for initiating proceedings under this section have been established, an immediate and speedy remedy is mandatory to restore and maintain public order. Thus, directions can be issued by the magistrate by a written order directing any person to refrain from committing an illegal act if the Magistrate is under the impression that this direction is necessary in order to prevent obstruction, annoyance or injury to any employed person, or danger to human life, health or safety, or causes public disorder or a riot or an affray”.
   According to section 144(3), an order issued under section shall remain in force for a period not exceeding more than 2 months barring exceptional cases. In Acharya Jagdishwaranand v Commr. Of Police, Calcutta, (1983) Cr. L.J. 1872, the Court held that if an order was passed under Section 144, then it is meant to meet an emergency and therefore cannot be permanent in character.
   The recent riots that took place in the backdrop of protests against the Citizenship Amendment Act (CAA) are also vital to be mentioned. People from all over India staged protests to voice their dissenting opinion against CAA which led to many arrests. In the case of State v. Ishrat Jahan, Bail Application No. 370, decided on 28-02-2020, Section 144 of CrPC had been imposed and a protest was being carried out until a noise of firing was heard. Pursuant to the firing, people were asked to disperse but they refused to do so and it was deemed to be an unlawful assembly. It was alleged that the applicant instigated the crowd and asked them to pelt stones. The police then used force to control the situation which escalated and they resorted to using tear gas shells. An FIR was filed, stating that the members were armed with pistols. The Court held that while holding protests is a fundamental right, carrying arms and ammunition to a protest makes it dangerous and in view of the same, the applicant was denied bail.
4. Disputes as to immovable property: Section 145 deals with breach of peace by a dispute regarding land and water. This section provides for prevention of any breach of public peace by maintaining possession of one or the other party’s property. The Executive Magistrate can issue summons to the parties directing them to attend court proceedings if a report or information of dispute is brought before him by a police officer causing breach of peace concerning land, water, or boundaries within his jurisdiction. This section was proposed only to provide a prompt remedy for disputes arising out of breaches of the peace. The Magistrate’s order is temporary and will be effective only until the rights of the parties are deliberated by a competent Civil Court. This provision only serves to provide additional power to the Magistrate to bring about harmony within his area by passing preliminary orders amidst growing trepidation of breach of peace.

Conclusion

It is crucial to live and promote harmony whilst also incorporating good governance. Public disturbances of any kind end up destroying, albeit temporarily, the societal development. Unruly behavior inculcates a mounting sense of fear and doom among citizens which leads to a negative impact on the minds of people. With the police authorities doing their best and taking necessary precautions and steps to control rowdy behavior, the onus also equally lies on people to discourage and not partake in any unlawful activities.

While there have been quite a few unprecedented situations that have occurred in this past year due to various social reasons or laws, the rights that authorities possess must be heavily monitored so as to ensure that their powers are not arbitrarily misused. The Anti-CAA riots, for example, led to many arrests and while some arrests were justified, many have alleged that it was a blatant attempt to deny citizens their right to stage protests and voice their opposition against the government. The Indian Penal Code and The Code of Criminal Procedure have indeed taken stern steps and laid down stringent provisions to confine public disturbances to a bare minimum. Living in a democratic society, it is vital to ensure that any unruly situation or turmoil is dealt with as smoothly as possible while also listening to the voice of the masses. Nevertheless, with stricter rules and steady awareness among citizens, unruly offences can be averted and in due course, a peaceful society can be achieved in its truest sense.

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References:

[1] McCorquodale, John. Aborigines and the police: unlawful assembly, affray and the incidents at Taree. Australian Journal of Social Issues, The, Vol. 17, No. 4, Nov 1982: 288-294

[2] Hardik Vaid, Maintenance of Public Order and Tranquility, Indian Legal Solution (Oct. 06, 2020, 10:52 PM) https://indianlegalsolution.com/maintenance-of-public-order-and-tranquility-under-crpc/

[3] Mariya Paliwala, Offence Against Public Tranquility, Blog iPleaders (Oct.07,2020, 08:11 AM) https://blog.ipleaders.in/offences-against-public-tranquility/

[4] Srishti John, Offences Against Public Tranquility, Law Times Journal (Oct. 05, 2020 11:20 PM) https://lawtimesjournal.in/offences-against-public-tranquility/