Section 149 of BNSS, 2023 — Use of Armed Forces to Disperse Assembly

Introduction

Section 149 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides for the use of armed forces when an assembly cannot be dispersed through ordinary civil force and its dispersal is necessary for public security.

The provision forms part of Chapter XI of the BNSS, dealing with the maintenance of public order and tranquillity. It operates alongside Section 148, which deals with dispersal of assemblies by civil force, and Section 150, which provides a separate power to certain armed forces officers where public security is manifestly endangered and communication with an Executive Magistrate is not practicable.

Section 149 is therefore an exceptional statutory mechanism for situations in which ordinary civil measures are insufficient to restore public order.

Meaning of Section 149

Section 149 authorises the use of armed forces to disperse an assembly when the statutory conditions prescribed by the provision are satisfied.

The power is not vested directly in the armed forces as an independent first response. The provision places the primary authority in the District Magistrate or an Executive Magistrate authorised by the District Magistrate, subject to the conditions contained in Section 149.

The provision also requires the armed forces to use as little force and cause as little injury to persons and property as is consistent with dispersing the assembly and arresting or detaining the persons concerned.

Statutory Basis

The principal provision is Section 149 of the BNSS, 2023.

It is closely connected with:

• Section 148: Dispersal of assembly by use of civil force.
• Section 150: Power of certain armed forces officers to disperse assembly.
• Section 151: Protection against prosecution for acts done under Sections 148, 149 and 150.

Section 149 must therefore be read as part of the statutory scheme governing the dispersal of assemblies and maintenance of public order.

Object and Purpose

The purpose of Section 149 is to provide a legal mechanism for dealing with an assembly that cannot otherwise be dispersed and whose continued existence presents a situation in which dispersal is necessary for public security.

The provision seeks to balance two competing considerations:

• the need to maintain public security and public order; and
• the requirement that coercive force be kept to the minimum necessary level.

The statutory requirement to use as little force and cause as little injury as possible acts as an important restraint on the exercise of the power.

Essential Elements

1. There must be an assembly covered by Section 148(1)

Section 149 applies to an assembly referred to in Section 148(1).

Section 148(1) covers:

• an unlawful assembly; or
• an assembly of five or more persons likely to cause a disturbance of the public peace.

Therefore, the reference in Section 149 is not confined only to assemblies that are technically unlawful assemblies.

2. The assembly cannot otherwise be dispersed

The assembly must be one that cannot otherwise be dispersed.

This makes Section 149 an exceptional power. The statutory scheme places ordinary civil force under Section 148 before the use of armed forces under Section 149.

The provision does not contemplate the routine deployment of armed forces merely because an assembly exists.

3. Dispersal must be necessary for public security

The Magistrate must be satisfied that it is necessary for public security that the assembly be dispersed.

The existence of an assembly by itself is therefore insufficient. The statutory requirement concerning public security must also be satisfied.

4. Appropriate Magistrate must be present

The power under Section 149(1) may be exercised by:

• the District Magistrate; or
• any other Executive Magistrate authorised by the District Magistrate,

provided that the Magistrate is present.

The provision therefore places the decision to invoke armed forces under specified executive-magisterial authority.

5. Requisition to the officer commanding the armed forces

The Magistrate may require an officer in command of a group of persons belonging to the armed forces to disperse the assembly with the assistance of the armed forces under his command.

The Magistrate may also direct the arrest and confinement of persons forming part of the assembly.

6. Minimum necessary force

The armed forces officer must obey the requisition, but the statutory manner of execution is subject to an important limitation.

The officer must:

• use as little force as possible; and
• cause as little injury to persons and property as possible,

consistent with:

• dispersing the assembly; and
• arresting and detaining the persons concerned.

Procedure under Section 149

The statutory mechanism can be understood in the following sequence.

Step 1: Existence of an assembly

There must be an assembly falling within Section 148(1).

Step 2: Failure of ordinary dispersal

The assembly cannot otherwise be dispersed through the ordinary civil-force mechanism.

Step 3: Necessity for public security

It must be necessary for public security that the assembly be dispersed.

Step 4: Exercise of Magistrate’s power

The District Magistrate or an Executive Magistrate authorised by the District Magistrate, who is present, may cause the assembly to be dispersed by the armed forces.

Step 5: Requisition to the commanding officer

The Magistrate may require an officer commanding a group of armed forces personnel to undertake the dispersal.

Step 6: Arrest and confinement

The Magistrate may direct the arrest and confinement of persons forming part of the assembly. Arrest and confinement may also be undertaken where necessary for dispersing the assembly or for having the persons punished according to law.

Step 7: Controlled use of force

The armed forces officer must execute the requisition in the manner he considers appropriate, while using the minimum force and causing the minimum injury consistent with the statutory objectives.

Powers of the Executive Magistrate

The Magistrate exercising Section 149 has the power to:

• cause the assembly to be dispersed by the armed forces;
• requisition an officer commanding a group of armed forces personnel;
• require the dispersal of the assembly;
• direct the arrest and confinement of persons forming part of the assembly; and
• direct such arrest and confinement where necessary for dispersal or for their punishment according to law.

The power is therefore not merely a power to request physical assistance. It includes authority concerning the dispersal of the assembly and, within the statutory framework, the arrest and confinement of persons forming part of it.

Duties and Responsibilities of the Armed Forces Officer

The officer receiving the requisition is required to obey it.

However, Section 149 does not give an unrestricted licence to employ force.

The officer must exercise the power in a manner that uses:

• as little force as possible; and
• as little injury to persons and property as possible,

consistent with dispersing the assembly and arresting and detaining the persons concerned.

This statutory limitation is central to the lawful exercise of the power.

Rights and Safeguards

Section 149 primarily regulates the authority of the Magistrate and the armed forces rather than creating a detailed independent code of rights for members of an assembly.

Nevertheless, the exercise of the power remains subject to the broader constitutional framework governing State action.

Article 19

Article 19(1)(b) protects the right of citizens to assemble peaceably and without arms, subject to the reasonable restrictions permitted by Article 19(3) in the interests of sovereignty and integrity of India or public order.

Consequently, the mere existence of an assembly does not automatically justify coercive dispersal. The statutory conditions governing the particular exercise of power must be satisfied.

Article 21

Any arrest, detention or use of force must operate within the constitutional guarantee of life and personal liberty under Article 21.

The requirement under Section 149 to minimise force and injury is therefore consistent with the broader constitutional requirement that State action affecting personal liberty must satisfy the standards of legality and fairness.

Important Distinctions

Section 148 and Section 149

Section 148 concerns dispersal by civil force. It permits specified Executive Magistrates and police officers to command certain assemblies to disperse and, where necessary, proceed to disperse them by force.

Section 149 deals with the use of armed forces where the assembly cannot otherwise be dispersed and its dispersal is necessary for public security.

Thus, Section 149 represents a more exceptional mechanism within the statutory scheme.

Section 149 and Section 150

Section 149 operates through the District Magistrate or an authorised Executive Magistrate who is present.

Section 150 deals with a different emergency situation. Where public security is manifestly endangered by the assembly and no Executive Magistrate can be communicated with, a commissioned or gazetted officer of the armed forces may exercise the statutory power to disperse the assembly.

Therefore, Section 149 proceeds through magisterial requisition, whereas Section 150 addresses circumstances in which communication with an Executive Magistrate is not possible.

Dispersal and Arrest

The power to disperse an assembly and the power to arrest persons forming part of it are related but distinct aspects of Section 149.

The provision permits arrest and confinement where the Magistrate directs it or where such action is necessary for dispersal or for having the persons punished according to law.

Arrest should therefore not be treated as an automatic consequence merely because a person was present in an assembly.

Exceptions and Limitations

Ordinary civil force should be insufficient

Section 149 applies only where the assembly cannot otherwise be dispersed.

Public security must require dispersal

The necessity for dispersal must be connected with public security.

Magistrate’s statutory authority

The power under Section 149(1) is assigned to the District Magistrate or an Executive Magistrate authorised by the District Magistrate, who is present.

Minimum force

The armed forces officer must use as little force as is consistent with the statutory purpose.

Minimum injury

The officer must also do as little injury to persons and property as is consistent with dispersal and the associated arrest or detention.

BNSS and CrPC

Section 149 of the BNSS corresponds substantially to Section 130 of the Code of Criminal Procedure, 1973 (CrPC).

The basic statutory framework has been retained: where an assembly covered by the preceding civil-force provision cannot otherwise be dispersed and public security requires its dispersal, specified executive-magisterial authority may requisition the armed forces.

The corresponding CrPC provision was Section 130, while the BNSS provision is Section 149.

A notable change in the BNSS formulation concerns the authority identified in Section 149(1). The BNSS expressly provides for the District Magistrate or another Executive Magistrate authorised by him, who is present. The earlier CrPC formulation referred to the Executive Magistrate of the highest rank who was present.

The core principle of controlled use of armed forces and minimum necessary force substantially continues.

Relationship with BNS and BSA

The three new criminal laws perform different functions.

• Bharatiya Nyaya Sanhita, 2023 (BNS) primarily defines substantive criminal offences and their punishments.
• Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) establishes the procedural framework for criminal administration and related public-order mechanisms.
• Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 149 is therefore a procedural and public-order provision under the BNSS. If conduct associated with the assembly constitutes an offence under the BNS or another applicable law, the relevant substantive criminal law and evidentiary rules operate separately.

Important BNSS Provisions

• Section 148 — Dispersal of assembly by use of civil force.
• Section 149 — Use of armed forces to disperse assembly.
• Section 150 — Power of certain armed forces officers to disperse assembly.
• Section 151 — Protection against prosecution for acts done under Sections 148, 149 and 150.

Common Confusions

Can armed forces be used whenever a large assembly gathers?

No.

Section 149 requires more than the existence of a large gathering. The assembly must fall within Section 148(1), it must not otherwise be capable of being dispersed, and dispersal must be necessary for public security.

Does Section 149 apply only to an unlawful assembly?

No.

Section 149 refers to an assembly covered by Section 148(1). This includes an unlawful assembly as well as an assembly of five or more persons likely to cause a disturbance of the public peace.

Can the armed forces use unlimited force?

No.

Section 149(3) expressly requires the use of as little force and the causing of as little injury to persons and property as may be consistent with dispersing the assembly and arresting and detaining the persons concerned.

Is Section 149 the same as Section 150?

No.

Section 149 operates on the requisition of the District Magistrate or an authorised Executive Magistrate who is present. Section 150 addresses circumstances where public security is manifestly endangered and no Executive Magistrate can be communicated with.

Does Section 149 itself prescribe a punishment?

No.

Section 149 is a power regulating the dispersal of an assembly. It does not create a standalone offence or prescribe a punishment for members of the assembly.

Example

Suppose a large assembly gathers at a strategically important public location and continues in a manner likely to cause serious disturbance of public peace. The ordinary civil-force mechanism is attempted but proves insufficient, and the situation develops to the point where dispersal becomes necessary for public security.

If the statutory conditions are satisfied, the District Magistrate or an authorised Executive Magistrate who is present may invoke Section 149 and requisition the armed forces to disperse the assembly.

The commanding officer must execute the requisition while using no more force and causing no more injury than is necessary for dispersal and any lawful arrest or detention.

Topic at a Glance

• Topic: Use of armed forces to disperse assembly
• BNSS Section: Section 149
• Chapter: Chapter XI, Maintenance of Public Order and Tranquillity
• Prerequisite: Assembly covered by Section 148(1) that cannot otherwise be dispersed
• Additional requirement: Dispersal must be necessary for public security
• Authority: District Magistrate or Executive Magistrate authorised by him, who is present
• Operational authority: Officer commanding a group of armed forces personnel
• Arrest power: Arrest and confinement may be directed or undertaken where necessary within the statutory framework
• Use of force: As little force as possible
• Protection of persons and property: As little injury as possible
• Corresponding CrPC provision: Section 130
• Related BNSS provisions: Sections 148, 150 and 151

Quick Revision

• Section 149 BNSS deals with the use of armed forces to disperse an assembly.
• It applies to an assembly referred to in Section 148(1).
• The assembly must be one that cannot otherwise be dispersed.
• Dispersal must be necessary for public security.
• The power under Section 149(1) may be exercised by the District Magistrate or an Executive Magistrate authorised by him who is present.
• The Magistrate may requisition an officer commanding a group of armed forces personnel.
• The Magistrate may direct the arrest and confinement of persons forming part of the assembly.
• The armed forces officer must use as little force as possible.
• The officer must cause as little injury to persons and property as possible.
• Section 149 corresponds substantially to Section 130 of the CrPC.
• Section 150 is different because it deals with circumstances where public security is manifestly endangered and communication with an Executive Magistrate is not possible.
• Section 151 provides protection against prosecution for acts done under Sections 148, 149 and 150, subject to its statutory requirements.
• The provision must be understood alongside the constitutional protections relating to peaceful assembly, public order and personal liberty.

ASLO READ: Section 148 – Dispersal of assembly by use of civil force

Conclusion

Section 149 of the BNSS establishes an exceptional mechanism for deploying armed forces to disperse an assembly when ordinary civil measures are insufficient and public security makes dispersal necessary. The provision preserves executive-magisterial control over this escalation while imposing a statutory requirement of minimum necessary force and minimum injury to persons and property.

Its relationship with Sections 148 and 150 is particularly important: Section 148 deals with civil-force dispersal, Section 149 provides for armed forces on magisterial requisition, and Section 150 addresses an exceptional situation where immediate action by certain armed forces officers is necessary because an Executive Magistrate cannot be communicated with.