Notice issued to AG on challenge to validity of Sec 149

The Supreme Court has decided to examine a plea challenging the constitutional validity of penal provision on “unlawful assembly” on the ground it was being used arbitrarily to implicate members of a group or family for the offence as grave as murder and ensure the harshest punishment against them, without assigning an actual role to each of them.

A bench of Justices Indira Banerjee and Ajay Rastogi issued a notice to Attorney General K K Venugopal on a writ petition filed by Viram alias Virma, who himself was convicted for murder and sentenced to life term for being a part of unlawful assembly.

The court admitted the petition for consideration as senior advocate Sushil Kumar Jain, appearing for the petitioner, contended the “offences against public tranquility” was often being used by the prosecution even in cases of private nature like a fight between two families or groups.

“The section is being used whenever there are more than 5 members involved in an offence irrespective of whether there was an “unlawful assembly” or not. It is being used as a substitute for investigation and is a new tool whereby the prosecution increases its “conviction rate”,” the petition stated.

It claimed that the Section was violative of Article 14, 19 and 21 for the punishment awarded to the accused in such cases was not commensurate with the role played by them and further, it led to over-implication and excessive punishment.

Section 149 -- which states that every member who is part of an unlawful assembly is guilty of the offence committed in prosecution of the common object -- created a vicarious liability of members of the unlawful in respect of that offence which is committed by any member of such assembly, the plea contended.

“In complete disregard of Article 21 and the promise of individual liberty, the police and prosecution are now using section 149 as a presumption of guilt of all persons who happen to be present at the spot, including those who become part of assembly oblivious to its unholy intentions or as curious onlookers,” it said.

In rural India, people like the petitioners herein usually carry agricultural equipment like farsa, axe, lathis with them. In any heated exchange, it is not unlikely that the other residents of the village are vocal about their “views” on the issue between the warring parties. In such an assembly when an offence takes place due to miscreance of one of the erring person present at the spot the brunt is borne by all persons present, it added.

Section 149 of the IPC under a chapter of public tranquillity was incorporated by Lord Macaulay only with a sole object to protect British Government and to suppress the freedom movement which prevailed throughout the country with a determined hand.

It was neither amended nor judicially examined with regard to the colonial undertones with which it was originally enacted and it continues to stand on the statute book in its original form.