Unlawful Assembly under BNS: Section 189, Common Objects, Constructive Liability under Section 190 and Landmark Cases

A crowd of five citizens gathered for a peaceful protest is not an unlawful assembly. A crowd of five citizens gathered to attack a specific person is. The distinction between lawful and unlawful assembly turns on the common object of the assembly. Section 189 of the Bharatiya Nyaya Sanhita, 2023, defines unlawful assembly through five specific common objects, and Section 190 imposes constructive liability on every member for offences committed in prosecution of that common object. These two provisions together form the foundational framework for the criminal law of group offences. This module walks through each of the five common objects in detail, the meaning of common object, the constructive liability rule with the Masalti and Bhanwar Singh frameworks, the difference between Sections 190 and 3(5) (common intention), and the leading cases from the classical Emperor v Nallakannu through modern applications.

1. Introduction

The concept of unlawful assembly

An unlawful assembly is a gathering of persons whose common purpose is one of the specific unlawful objects identified by Section 189 BNS. What makes the assembly unlawful is not merely the gathering itself (which is protected by Article 19(1)(b) freedom of assembly) but the specific common object. Where the common object is peaceful (a protest, a religious gathering, a wedding), the assembly is lawful. Where the common object is one of the five unlawful objects, the assembly is criminal.

The five-person requirement

Section 189 requires that the assembly consist of at least five persons. Fewer than five cannot constitute unlawful assembly, though smaller groups may be liable under other provisions:

• Two to four persons: joint liability under Section 3(5) BNS (common intention) if the ingredients are made out.
• Any number: conspiracy under Section 61 BNS if there is an agreement to commit an offence.
• Any number: abetment under Sections 45 to 60 BNS.

Sections 189 and 190 as the framework

Sections 189 and 190 operate together:

• Section 189 defines the offence of unlawful assembly and provides the base punishment for being a member.
• Section 190 imposes constructive liability on all members for offences committed in prosecution of the common object.

The two provisions together enable the prosecution of mob violence: even where the specific offender cannot be identified from the crowd, all members of the unlawful assembly can be prosecuted for the offences committed by anyone in the crowd, provided the offences were in prosecution of the common object.

2. Section 189 BNS: Text and Structure

Text of Section 189

The four ingredients of unlawful assembly

The Explanation on subsequent unlawfulness

The Explanation to Section 189(1) provides that an assembly which was not unlawful when it began may become unlawful subsequently. This addresses cases such as:

• A peaceful protest that transforms into a violent mob.
• A wedding gathering that turns into a fight.
• A political meeting where inflammatory speeches lead to an intention to commit an offence.

At the moment the assembly becomes unlawful (the common object shifts to one of the five specified objects), Section 189 applies. Members who continue in the assembly after this point become members of an unlawful assembly.

3. The Concept of Common Object

Common object distinguished from common intention

How common object is established

The common object may be established from:

• The conduct of the assembly: shouts, banners, weapons carried, targets approached.
• Statements made by members: what they were saying to each other and to the crowd.
• The circumstances of the gathering: what brought the members together, what they were doing.
• The specific offences committed: from the offences themselves, the common object can often be inferred.

Emergence of common object during assembly

4. First Common Object: Overawing Government or Public Servants

Section 189(1)(a) covers assemblies whose common object is to overawe by criminal force or show of criminal force:

• The Central Government.
• Any State Government.
• Parliament or the Legislature of any State.
• Any public servant in the exercise of lawful power.

Overawe means to intimidate or coerce through fear. The purpose must be to compel the government or public servant to act (or not act) through the pressure of the crowd's force. Examples:

• A mob gathering outside a police station to force the release of an arrested person.
• A crowd surrounding a magistrate's court to prevent a case from being heard.
• An assembly at a legislative building to compel the passage of a particular measure.

5. Second Common Object: Resisting Execution of Law

Section 189(1)(b) covers assemblies whose common object is to resist the execution of:

• Any law.
• Any legal process (warrants, court orders, execution proceedings).

Examples:

• A crowd blocking the execution of a court order for possession.
• A gathering to prevent police from serving warrants.
• An assembly aimed at obstructing tax collection or other legal enforcement.

6. Third Common Object: Committing Mischief, Trespass, or Other Offence

Section 189(1)(c) is the broadest of the five objects. It covers any assembly whose common object is to commit:

• Mischief (Section 324 BNS).
• Criminal trespass (Section 329 BNS).
• Any other offence.

The 'any other offence' language means that virtually any criminal purpose can be the common object of an unlawful assembly. In practice, most rioting cases involve this common object: the crowd gathers to commit violence, damage property, or commit some other criminal act.

7. Fourth Common Object: Force to Take Property or Interfere with Rights

Section 189(1)(d) covers assemblies whose common object is to use criminal force, or the show of criminal force, to:

• Take or obtain possession of any property.
• Deprive any person of the enjoyment of a right of way, use of water, or other incorporeal right.
• Enforce any right or supposed right.

This provision addresses classical rural land disputes: crowds gathering to forcibly take possession of disputed land, to prevent access to a well or path, or to enforce disputed traditional rights. The provision applies to both actual force and mere show of force (the crowd's numbers and demeanour are enough to constitute show of force).

8. Fifth Common Object: Force to Compel or Restrain Lawful Conduct

Section 189(1)(e) covers assemblies whose common object is to use criminal force, or the show of criminal force, to:

• Compel any person to do what he is not legally bound to do.
• Compel any person to omit what he is legally entitled to do.

Examples:

• A crowd gathering outside a person's house to force him to leave a caste-mixed marriage.
• A gathering to compel someone to withdraw a court case.
• An assembly aimed at forcing a shopkeeper to close his shop or a factory to stop production.

9. Section 190 BNS: Constructive Liability

Text of Section 190

The two limbs

• First limb: offence committed in prosecution of the common object. Every member is liable.
• Second limb: offence which members knew was likely to be committed in prosecution of the common object. Every member is liable.

The Masalti framework

The 'knew to be likely' standard

The 'knew to be likely' standard is significant. It extends liability beyond the specific common object to reasonably foreseeable consequences. Where the assembly gathered with a common object of, say, threatening a person, and in the course of the confrontation someone was killed, the question is whether the killing was in prosecution of the common object (yes, if the confrontation naturally led to violence) or whether it was outside it (perhaps, if a member acted independently for personal reasons).

10. Distinction from Section 3(5) BNS (Common Intention)

In practice, both provisions may apply to the same conduct. A mob of ten persons attacking a house may be liable under both frameworks. Prosecutions often charge both, and the court decides which is more appropriate on the specific evidence.

11. Being a Member: Ingredients Under Section 189(2)

Section 189(2) defines membership: whoever, being aware of facts which render an assembly unlawful, intentionally joins or continues in it. Two elements:

• Awareness: the accused knew the facts that made the assembly unlawful. Where the accused was ignorant of the common object, membership is not made out.
• Intentional joining or continuation: the accused voluntarily joined, or continued after becoming aware. Mere presence, without intention to be part of the assembly, is not membership.

12. Punishment and Procedural Aspects

• Section 189(3): being a member of unlawful assembly. Up to six months, or fine, or both.
• Section 190: liability for offences committed. The same punishment as the specific offence.
• The offences are cognizable and bailable.
• Investigation and trial by ordinary courts under the BNSS.
• The Arnesh Kumar guidelines (Section 35(3) BNSS) apply.

13. Landmark Cases and Consolidated Judgments

Consolidated Landmark Judgments

• Masalti v. State of Uttar Pradesh, AIR 1965 SC 202. Framework for Section 149. Four elements.
• Maina Singh v. State of Rajasthan, (1976) 2 SCC 827. 'Knew to be likely' standard.
• Ram Bilas Singh v. State of Bihar, (1964) SC. Common object may emerge.
• Amerika Rai v. State of Bihar, (2011) 4 SCC 677. Individual identification required.
• Krishnappa v. State of Karnataka, (2000) 4 SCC 75. Coherent interpretation of framework.
• Ramesh Krishan Master v. State of Kerala, (2015) 12 SCC 175. Subsequent unlawfulness.
• State of Uttar Pradesh v. Sughar Singh, (1978) SC. Common object must be genuinely common.
• Sikandar Singh v. State of Bihar, (2010) 7 SCC 477. Constructive liability for anonymous mob violence.
• Bhanwar Singh v. State of Madhya Pradesh, (2008) 16 SCC 657. Specificity in establishing common object.
• Emperor v. Nallakannu, (1900) ILR 23 Mad 388. Classical framework for common object.
• Nanak Chand v. State of Punjab, AIR 1955 SC 274. Application of Section 149 in family disputes.
• Gangadhar Behera v. State of Orissa, (2002) 8 SCC 381. Modern application of constructive liability.
• Chikkarange Gowda v. State of Mysore, AIR 1956 SC 731. Distinction from Section 34 IPC.
• Roy Fernandes v. State of Goa, (2012) 3 SCC 221. Application in labour disputes.
• Mohan Singh v. State of Punjab, AIR 1963 SC 174. Framework for common object in political violence.

Frequently Asked Questions

What is unlawful assembly under Section 189 BNS?

Section 189 BNS defines unlawful assembly as an assembly of five or more persons with any of five common objects: (a) overawing government or public servants by criminal force; (b) resisting execution of law or legal process; (c) committing mischief, criminal trespass, or any other offence; (d) using criminal force to take property or interfere with rights; or (e) using criminal force to compel or restrain lawful conduct. Being a member is punishable with up to six months, or fine, or both.

What is Section 190 BNS on constructive liability?

Section 190 BNS provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object, or such as members knew was likely to be committed, every member is guilty of that offence. This constructive liability rule ensures that all members of a violent mob can be prosecuted for offences committed by any member, even where the specific offender cannot be identified from the crowd. The classical Masalti v State of UP framework requires proof of the common object and its connection to the specific offence.

What are the five common objects of unlawful assembly?

The five common objects under Section 189(1) BNS are: (a) to overawe by criminal force or show of criminal force the government, Parliament, State Legislature, or any public servant in the exercise of lawful power; (b) to resist the execution of any law or legal process; (c) to commit any mischief or criminal trespass or other offence; (d) by criminal force to take property or interfere with rights of way, water, or other incorporeal rights; and (e) by criminal force to compel someone to do what he is not legally bound to do or omit what he is legally entitled to do.

What is the difference between common object and common intention?

Common object (Section 189 BNS) requires five or more persons; common intention (Section 3(5) BNS) requires two or more. Common object may emerge during the assembly; common intention must be pre-existing. Common object applies to five specified unlawful objects; common intention applies to any criminal act pursued jointly. Section 190 imposes constructive liability for offences committed by any member; Section 3(5) makes each person liable for the act done in furtherance. Both may apply to the same conduct, and prosecutions often charge both.

Can an assembly become unlawful subsequently?

Yes. The Explanation to Section 189(1) provides that an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly. This addresses cases such as a peaceful protest that turns violent, a wedding gathering that becomes a fight, or a political meeting where inflammatory speeches lead to unlawful intentions. At the moment the assembly becomes unlawful, Section 189 applies to members who continue in it. Ramesh Krishan Master v State of Kerala, (2015) 12 SCC 175, illustrates the modern application of this principle.

What was the Masalti test?

In Masalti v State of Uttar Pradesh, AIR 1965 SC 202, the Supreme Court laid down the framework for Section 149 IPC (now Section 190 BNS). The prosecution must establish: (i) the existence of an unlawful assembly; (ii) the common object of the assembly; (iii) the accused's membership; and (iv) the connection between the specific offence and the common object. The specific offence must have been committed 'in prosecution' of the common object, meaning to advance or achieve it. The Masalti test remains the foundational framework for constructive liability prosecutions.

Related Topics on The Legal Bridge

For a fuller picture, read these companion notes on adjacent doctrines and provisions:

• Offences Against Public Tranquillity under BNS: Chapter XI overview including all nine provisions.
• Rioting under BNS: detailed treatment of Section 191 which builds on the unlawful assembly framework.
• Common Intention under Section 3(5) BNS: the alternative constructive liability framework for smaller groups.
• Constitutional Rights: Article 19(1)(b) freedom of assembly and its reasonable restrictions.