LEGAL EDUCATION & RESEARCH

METHODOLOGY

Seminar Topic On: Protection of Women & Children during

Armed Conflicts under International Humanitarian Law

Sumbitted To:
Dr. Priti Yadav

Submitted By:
Ms. Bhavna Pandey
LLM 1st Year, Business Law
Semester I, Roll No.41
SNDT Womens’ University, Juhu, Santacruz.

INDEX
SR NO. PARTICULARS PAGE NO.

1. Introduction 3
2. Research Methodology 5

3. Importance 6

4. Challenges 8

5. Sections & Concepts 10

Prescribed Under IPC

6. Case Laws 21

7. Conclusion & Suggestion 25

8. References 27

INTRODUCTION
Peace and tranquillity are the prerequisites for development in society. If there is
disorderliness in society or any other hindrance of like nature, the society cannot
provide to the individual, the opportunity to grow and develop to their full potential,
hence the maintenance of peace and tranquillity is a must for every society and nation
as a whole. Offences against the public tranquillity are the offences against not only a
single person or property but against the society at large. These kinds of offences are
committed by the group of people sharing a common intention to disturb the peace
and tranquillity of an area thus affecting the whole society. It is important to study
these offences so that they could be curbed. India is a democratic and peaceful
country in the world. This article analysis the provisions related to public tranquility,
which was dealt under CHAPTER VIII, Sections 141 to 160 of IPC, 1872. And it
discuss about classifications of offences, and its punishment accordingly prescribed
under law. The article concludes public order and peace is important thing in one’s
Nation.  We are try to decrease these type crimes in our Nation with maintain peace,
and tighten the laws related to this type of offences. Peace and Tranquility is a most
important one in every nation’s development. No country can develop or grow
socially and economically without peace and Public tranquility. If any offence against
Public tranquility, it is punishable by law.   Offences against Public tranquility dealt
under CHAPTER VIII, sections 141 to 160 of Indian Penal Code [IPC] 1872. Public
tranquility means number of persons or group of persons engaging or doing a criminal
act with a common intention, to cause disturbance of the peace of the Society.

The Indian Penal Code, 1860 is a substantive law that lists down offenses causing
injury to both, individuals or public at large. Offenses against public tranquility are
those which not only harm the property or peace or both of an individual but it harms
the property or peace or both of the public at large. While causing such disruptions or
restrictions on the normal working of the society, public tranquility is hampered thus
causing an offense. In general, tranquility means a state of peace and quiet. Such a
state is usually harmed by violent assemblies or by causing a riot or by destroying
public property. While committing such offenses, there is an involvement of a large
number of people, hence each one of them is held liable for having a common
intention. Offenses of such nature should not only be strictly looked down upon but
also necessary steps must be taken to prevent them. For a society to grow and
progress there is a need for peace and tranquility. The reason being, it helps the
people of the society to progress at what they are doing. The occurrence of such
disturbances doesn’t allow individuals to live peacefully.

It is the fundamental duty of the State to maintain public order. As a civilized society,
everybody accepts that peace and tranquility are very necessary for the development
and to live a good and healthy life. The maintenance of law and order is the primary
function of the Magistrate. According to the Criminal Procedure Code and others Act,
the Magistrate is responsible for maintaining law and order in society. Maintenance of
public order and tranquility in the public discourse is the primary objective of any
government for a country to grow, develop and reach new heights of good
governance, because of these provisions the government should be able to give its
citizens a peaceful environment. The duty of the Executive Magistracy and the Police
to maintain public order is thus clearly laid down by law.
The Indian Penal Code, under Chapter 8 lays down the various offenses that hamper
public tranquility. These offenses are often classified as group offenses since they
usually include a large number of people who are individually held liable. The
offenses may be classified as unlawful assembly, rioting, promoting enmity, and
affray. Chapter X of the Code of Criminal Procedure gives the legal provisions for
maintenance of public order and tranquility and lays down the duties, powers, and
functions of the Executive Magistracy and the Police on this behalf.
 RESEARCH & METHODOLOGY
Due to their particular situation, women suffer the most from the impacts and
aftermaths of the wars and they are sometimes the target of the most heinous acts as in
Rwanda1, where, from 1994 to 1995, the number of women who
were raped during the civil war was over 175,000. In this regard, the humanitarian
law observes some support mechanisms for individuals, women and children in
particular, from the start of armed conflicts till the end. To support civilians,
especially women, the international humanitarian law deals with the rights and
responsibilities of the two parties involved in the conflict, specially the rights of
civilians, supporting those who are not involved in the conflict. Consequently,
women, like civilians, have benefited from the international humanitarian law which
imposes some limits on the ways of conflicts (Krill, 2008). Due to particular needs of
individuals, especially women, this law has assigned International Committee of the
Red Cross as its guardian to ensure law enforcement. This study is carried out in this
regard with the same concern and with an academic approach to explore the issue of
the humanitarian protection of women in armed conflicts. Reviewing international
documents on armed conflicts, the researchers sought to compile and classify the
kinds of protection mechanisms for women and inspect their application. In other
words, this study was to answer the following questions:
1. What are the kinds of law and support mechanisms for women in international
documents and treaties?
2. What are the examples of violations of women’s rights in recent conflicts?
3. Are the current support mechanisms capable enough to protect women at the time
of armed conflicts?

Research in humanities is done within three paradigms of positivism, interpretivism

and critical. In terms of methodology, all paradigms which are not positivist are
placed in qualitative methodology. Qualitative research is generally defined as a
research methodology in which the finding is not obtained through statistical analysis
with the intent of quantifying data. Data, in this kind of research, is collected through
observation, interview, or exploring documents. This study was carried out within the
second research paradigm, namely interpretivism. More specifically, through
exploring documents, it was tried to find the international documents related to
humanitarian law set to protect women in times of armed conflicts. The data traced
and extracted from official texts including documents, treaties, resolutions, advisory
opinions and literary texts, memoirs, biographies, essays and writings available in the
media was detailed and compiled using analytical descriptive method to meet the aims
of the study and provide an answer to the research questions.

IMPORTANCE
Armed conflicts are particularly described as, “A political war in which armed forces
of a state or group of peoples trying to get the control on a part of the state, engage in
armed fights where at least 1000 or more people killed as the result of combat.
Human rights are generally get breached during military conflicts. As a result, the
specialists need to spend a lot of time to develop that can control the hard
consequences the civilians need to face during the conflicts. Human rights law,
refugee law, and humanitarian law are the three aspects of modern international law
that are very useful in giving protection to war victims. In armed conflicts,
humanitarian law is applicable. It limits the acts of parties involved in the war and
ensures the complete protection of those who are directly not taking part in the fights.
When implemented, human rights can also face denial from society when treated
unfairly because of many factors like caste, race, religion, language, gender, or any
other quality. Human rights infringement can also occur as a result of violent
conflicts. Well, the wars that begin when the disputes are over some resources,
religion, or any territorial claims may thrive to new objections as one or more parties
can violate human rights in some alleged ways. Wars nowadays are no longer fought
on isolated battlegrounds; instead, they fought in the middle of the city where local
civilians reside. Thus, civilians faced most of the causalities. The women and
children’s on the other hand are specifically the targeted victims. The provision of
food supply, health services, water supply, fuel, and transportation is mainly hindered
due to the war zone.
Amidst the legal protections provided by this law, in this widespread society, women
and girls are abused physically, sexually during armed conflicts. The violence against
women during the war is very common, and these crimes need to be taken care of
with urgency. Women who are traveling alone or with small children during wartime
are exploited and violated. Even women who take protection in the camps during war-
time are at risk due to inadequate security structures.
It has been seen that sexual violence that occurs during the conflicts is underreported
and the victims often face challenges in getting immediate help & support. Many of
them experience social rejection, rejection by families, limited medical services &
care, and many more to name a few.

During armed conflicts, children mainly are unprotected & insecure. Regardless of
they are being protected by the laws, armed forces & organizations continue to hire
them. The children are frequently separated from their families, forcefully removed
from their houses, killed, sexually assaulted, wounded, or are exploited in many other
ways. As civilians or soldiers, children in conflict enjoy the universal protection of
international humanitarian law. However, some measures recognize their insecurity
during wartime. There are many different situations where children can take part in
conflicts & wars. They can support in various forms like transporting supplies,
supplying military information’s which could put them in dangerous situations.
To run out of such issues & situations, there are additional protocols of the Geneva
Convention in which it is clearly mentioned that recruiting or participating children
under the age of 15 in such situations is absolutely illegal. The first additional
protocol also states that military recruitment of 15 to 18-year-olds to be prioritized in
international armed conflicts. It is illegal for armed organizations to use minors under
the age of 18 under any circumstances says the act. The children who are not
participating in any armed conflicts face a variety of threats against which IHL and
the related children’s rights provide offers particular protection & security. They are
provided with non-combatant protection in general, but the Geneva Conventions and
1977 Protocols recognize their needs for medical assistance, housing, food, and
clothing. Whereas, the orphaned, separated children must be found, protected, and
given specific treatment & facilities to assure their physical protection. Also, it is
mentioned that their educational requirements must be met. Also, all the necessary
actions must be taken to reunite them with the families of those who have been
separated.
The International Humanitarian Law (IHL) aspires to minimize the effects on children
during the war-time. Unfortunately, in the present scenario, the necessities & efforts
to protect the children from the horrors of the war and to help them in rebuilding their
lives after the war are almost over.

CHALLENGES
Protection challenges and needs faced by women and children in armed conflict
and post-conflict settings

Children pay the highest price of humanitarian crisis. Armed conflict, natural disasters
and other emergencies expose millions of girls and boys to unthinkable forms of
violence, exploitation, abuse and neglect. Many children are forced to flee their
homes, some torn from their parents and caregivers along the way. In conflict,
children may be injured or killed by explosive weapons and remnants of war,
including during attacks on schools and hospitals. They may be recruited by armed
forces – not only as fighters, but as scouts, cooks, porters, guards, messengers and
more. Especially for girls and women, the threat of gender-based violence soars.
Through it all, children lose critical health, education and protection services. Their
mental health and psychosocial needs are often neglected, with consequences that can
last a lifetime. 
The single most important measure to improve this situation is by making sure that
State and non-State parties to armed conflict comply with their legal obligations under
international humanitarian law and other applicable norms. "This is imperative
whatever parallel efforts are under way to find political solutions to a conflict". In this
regard, the Security Council has a significant role to play and ensure that those
directly responsible for protecting civilians meet their responsibilities in full. Every
State party to the Geneva Conventions also has an obligation in this connection:
Article 1 common to the four Geneva Conventions calls on all States Parties to respect
and ensure respect for the Conventions in all circumstances.

The Council having chosen today to address the "challenges and needs facing women
and girls in armed conflict and post-conflict settings", I would like to highlight the
situation of women during armed conflict, with a specific focus on the subject of
sexual violence. All that follows is based on the ICRC's field experience and
activities.

As a group, women are not inherently vulnerable in armed conflict. They may be
victims or perpetrators, fighters or bystanders; or they may be actors of influence.
Armed conflict changes the circumstances of all the people it touches. Women are
made vulnerable mainly by the conditions that are imposed on them, not by their sex.
At this point, it is critical to remind ourselves that fighters are also afforded protection
by international humanitarian law, particularly after they are hors de combat. This
includes protection against sexual violence. All victims of armed conflict must be
treated humanely, without adverse distinction. During armed conflicts, displaced
women and girls as well as female heads of households are particularly vulnerable
and at risk of certain kinds of violence, including sexual violence. Because their
husbands are missing, detained or taking part in the fighting, displaced women and
female heads of households often have to shoulder the burden of being a single
parent. This means providing – by themselves – the family's income, deciding – by
themselves – about their children's education, and guaranteeing – by themselves – the
safety of their family. While also affecting men and boys during armed conflict, the
impact of sexual violence on women and girls is disproportionally greater. The
consequences of such violence – for victims, their families and entire communities –
are extremely serious.

Sexual violence causes physical trauma and long-lasting mental health problems, and
can be financially ruinous. It can lead to social stigmatization, and ostracism; it may
be the cause of reprisals and sometimes it kills. These are only a few consequences of
sexual violence that victims have to deal with every day. Sexual violence remains
comparatively invisible, and statistically underestimated. Because of cultural
constraints and the strong feelings of shame and fear engendered by sexual violence,
most victims do not dare come forward to seek help. This, of course, only adds to the
devastating effects on them, their families and communities. Constraints and obstacles
notwithstanding, immediate and appropriate action must be taken – on the basis of
systematic and thorough assessments – to respond to the multifaceted needs of victims
of sexual violence. Sexual violence is a medical emergency. Victims of sexual
violence need to be assisted and given immediate, unimpeded and free access to
health services, including medical and psychological support, ideally within 72 hours
of the assault. They should be treated with humanity and dignity at all times; their
privacy must be respected and the strictest confidentiality maintained while
responding to their needs.

Victims need to be protected against all forms of ostracization or re-victimization and

from any further abuse – by making their environment safer and by providing
guidance on risk awareness and risk reduction. These are essential components of this
response. Victims willing to seek justice must also be able to report their allegations
safely, without fear of reprisals or social stigmatization or of becoming entangled in
lengthy legal procedures. Victims should have access to economic support as well as
to administrative and other legal remedies; for those who have been detained,
detention should not be an additional barrier for them to access remedies. These
remedies are extremely important: they enable victims to survive and rebuild their
lives. Victims also need to see perpetrators brought before a court of justice that
respects fair-trial guarantees. In armed conflicts – international and non-international
– rape and other forms of sexual violence are serious violations of international
humanitarian law and entail individual criminal responsibility. All States have an
obligation to criminalize these violations in their domestic legislation. Governments
must ensure accountability for rape and other forms of sexual violence by
investigating these acts and by prosecuting and punishing the perpetrators.

In 2013, the ICRC undertook a four-year commitment to intensify its response to the
issue of sexual violence. It has been striving since then – in Colombia, the Central
African Republic, South Sudan, Lebanon and various other countries – to improve its
delivery of impartial, holistic and effective humanitarian responses to victims of
sexual violence, while also strengthening activities aimed at preventing such violence.
We believe that the ICRC and other humanitarian actors have an important role to
play in preventing sexual violence and in providing a holistic response to its victims.
But, we also know that all our efforts will be for naught if States do not bear their
primary responsibility in addressing the needs of victims and providing suitable
remedies for them and their families, with full respect for their own obligations under
international humanitarian law. Domestic laws, regulations, policies, reparation
schemes and processes of restorative justice should respond to the many different
needs of victims and must fully comply with international law. Strengthening and
building institutional capacities – within the judiciary, the police, the military and
among all detaining authorities, including those dealing with displaced persons –
should be a priority. It is equally important to bolster the ability of victims to heal and
rebuild their lives. Sexual violence during armed conflict is a violation of
international humanitarian law. It is not inevitable. It must and can be stopped. What
is required is a concerted effort by everyone concerned to prevent and put an end to it.

The ICRC will continue to encourage States to pursue action based on their pledges at
the 31st International Conference of the Red Cross and Red Crescent to enhance
protection for women during armed conflict. It also stands ready to support States –
ahead of the 32nd International Conference, which will take place at the end of this
year – in their efforts to draft measures specifically for combating sexual violence and
responding to its consequences.

 SECTIONS APPLICABLE CRIME AGAINST WOMEN & CHILDREN

UNDER IPC

Unlawful Assembly

Section 141, Indian Penal Code (IPC) describes an unlawful assembly as a gathering
of five or more persons who has a common intention :

 To use or to show criminal force against the public servant, state or central
government
 To resist the execution of the law or legal process.
 To commit any mischief or criminal trespass on any person.
 To use the criminal force and deprive the enjoyment of the right of any person or
obtain the possession of other people.
 To use the criminal force and compel a person to do what he is not legally bound
to do.
The common objective of all these assemblies has to be unlawful. A peaceful
gathering of five or more persons cannot be charged under this section. The peaceful
gathering of people for some other reason cannot be concluded to be unlawful until
and unless the contrary is proved.
Section 142, of IPC, determines who is a member of such unlawful assembly and who
is not. Simply being a part of the assembly does not make a person liable under
Section 141. The person joining the assembly has to have the knowledge that the
assembly he is joining is an unlawful one and has to have a common intention to
cause public disorder similar to that of others. A person who is a part of the assembly
but withdraws from it clearly indicates that he doesn’t have a common intention and is
not a member of the unlawful assembly. However, a person who is physically not a
part of the unlawful assembly due to injury or physical weakness but has a common
intention as other members in the assembly will be held liable. Every member of the
unlawful assembly is vicariously liable for the offense committed by the member in
an unlawful assembly by the prosecution of the common object.

Common Intention and Common Object

According to Section 149, when a criminal act is done by several persons in

furtherance of common intention of all, each of such persons is liable for that act in
the same manner as if it were done by him alone. Section 149, lays down only a rule
of evidence and does not create a substantive offence. This section is intended to meet
cases in which it may be difficult to distinguish between the acts of the individual
members of a party or to prove exactly what part was taken by each of them in
furtherance of the common intention of all. This section really means that if two or
more persons intentionally do a thing jointly, it is just the same as if each of them has
done it individually. The reason why all are deemed guilty in such cases is that the
presence of accomplices gives encouragement, support, and protection to the person
actually committing an act.
Section 143, IPC is a punitive section. Every member of an unlawful assembly may
be imprisoned for a period of six months or has to pay a fine or both.
Section 144 contemplates an aggravated form of the offence of unlawful assembly
when a member joins an assembly accompanied with a deadly weapon and a
punishment of two years of imprisonment and fine is imposed for the same. The
ingredients which need to be satisfied before Section 144 can be imposed on a person
are as given below:
1. A member of an unlawful assembly
2. Use of a deadly weapon or a weapon which if used is likely to cause death

The important provision to note here is that a person not carrying a deadly weapon
will still not be absolved of his liability under this section if he happens to be a part of
such an unlawful assembly which is armed with a deadly weapon. Such a person will
not be charged under Section 144 rather he will be charged under Section 141. 
Section 145 lays down the provision wherein a person joins or continues in an
unlawful assembly that has been commanded to be dispersed. Such a person shall be
punished with imprisonment of two years. However, if such an assembly is not
unlawful and constitutes a group of five or persons who have been ordered to
disperse, any person joining or continuing to disturb the public peace shall be
punishable under Section 151. Section mandates that the accused must have caused
disturbance despite having the knowledge of so.

Rioting

Riots are civil unrest that is caused by unorganized groups of people who often tempt
to go violent either against the government or other people or against public property.
Riots are often caused due to dissent or grievance. Section 146, says that whenever
forces or violence is used by an unlawful assembly, or by any member thereof, in the
prosecution of the common object of such assembly, every member of each assembly
is guilty of the offence of rioting. Retrospectively, riots have been caused due to
dissatisfaction towards the government, being oppressed by higher classes, or due to
communal disharmony.
Section, 147 and 148 lays down the punishment for rioting. Under Section, 147 a
person will be punished for a term of two years or has to pay a fine or both. However,
when a person is charged under Section 148, i.e. person guilty of rioting with a deadly
weapon, such person shall be punished with imprisonment of either description for a
term which may extend to three years, or with fine, or with both. A person will be
held liable under this section only when he is carrying a deadly weapon or any other
weapon which is likely to cause death.
There is a relation between a common object and offence created, when the offence is
committed with a common object then every person is liable for that. Unlawful
assembly is equal to five or more persons plus common object however, rioting is
equal to unlawful assembly plus violence.
Section 153 is important with reference to provoking with an intention that a riot be
carried out by an unlawful assembly. A person can be convicted under this section if
he in pursuance to aforementioned intention does any act which is illegal in a
malicious or reckless manner. The provocative acts or words do not take into account
an act of abetment or instigation. However, the word ‘provocation’ occurring in this
section does not cover a chance provocation.

Promotion of enormity between different groups

Section 153A was inserted in the Code in the year 1898 with a view to subside the
breach of public peace and tranquillity due to conflicts and mutual abuse amongst
various classes. Mens rea is an essential ingredient for the offence that is committed
under section 153A of IPC.
The section holds a person guilty who promotes or attempts to promote discord and
animosity between different regional, caste, religion, or racial communities, and such
acts must disturb or must be likely to disturb the public tranquillity. Further, any sort
of movement, exercise, activity, or drill perpetuating the use of force or violence
against any of the groups aforementioned shall also fall in the ambit of Section 153A.
Further, sorts out any activity, development, penetrate or other comparative
movement expecting that the members in such action might utilize or be prepared to
utilize criminal force or violence or knowing it to be likely that the members in such
action will utilize or be prepared to utilize criminal force or violence, or takes an
interest in such action planning to utilize or be prepared to utilize criminal force or
violence or knowing it to be likely that the members in such action will utilize or be
prepared to utilize criminal force or violence, against any religious, racial, language or
territorial gathering or caste or community and such action for any reason at all causes
or is probably going to cause dread or alert or a sentiment instability among
individuals from such religious, racial, language or provincial gathering or caste or
community, shall be held liable.
Section 153B was inserted in the year of 1972, to contain the rise in the communal
and caste tensions emerging in the country which did not just create disharmony
amongst the different communities but also affected the national integrity of the
nation. The section holds any person who:
1. Publishes an imputation that a particular community by reasons of the following or
being a member of a particular religion, racial, regional or language group cannot bear
true and complete allegiance to the integrity of the nation;
2. Asserts and propagates that a certain group for the reasons aforementioned is
bereaved of their rights as a citizen of India;
3. If any of the aforementioned actions if perpetuates the creation of discontent and
disharmony amongst the community or class of persons and causes to give rise to ill
will and animosity, shall be punished with three years imprisonment or fine or with
both. Further, if any of the aforementioned actions be committed in any place of
worship or in any assembly engaged in the performance of religious worship then
such person shall be punished with five years imprisonment and fine.

Affray

Section 159 of IPC describes affray. Section 159 of the Indian Penal Code provides
that if two or more persons are fighting in a public place to disturb the public peace,
they will be said to commit the offence of affray. The essentials of this section are:
 Fight between two or more persons;
 Fighting in a public place; and Disturbance of the public peace in consequence
thereof.
In the case of C Subbarayudh v. State of Andhra Pradesh, it was held that to constitute
affray there must be a fight and it is not fought when one party is aggressive and the
other is passive. Thus there must be retaliation from both sides as they both need to
participate in the struggle. If a person disturbs the public peace by attacking another
person in a public place and the other person does not retaliate it will not attract the
offence of affray under Section 159 of the Indian Penal Code.
Section 160 deals with the punishment for Affray. The punishment may extend to one
month or fine which may extend up to rupees 100 or both.

Object
 To use criminal force against any public servant, state or central government.
 To resist any legal proceeding.
 To commit any mischief or trespass on any property or person.
 To use criminal force against any person to deprive him of the enjoyment of any
right.
 To use criminal force against a person and compelling him to do something
which he is legally not bound to do.


Ingredients
For unlawful assembly, several ingredients need to be present for making anyone
liable for the punishment defined for unlawful assembly under the provisions of IPC.
1. Five or More Persons: Unlawful assembly should consist of persons more than 5.
If the number of people in a group is less than 5 then it will render this section
inapplicable. It is also possible that the number of persons in an unlawful assembly
may drop down to 5 after the commission of the crime, in this scenario too this
Section would not apply, but Section 149, of the given Act (Subran Subramaniyam vs
the State of Kerala) which levies vicarious liability on the person, would be
applicable. In an unlawful assembly 3 persons are acquitted and the rest could not be
identified or are unmanned but the court is certain about the presence of other people
in the group making the number to 5 or more than that, then, in that case, the section
of the unlawful assembly would be applied.

In the case of Ram Bilas Singh vs the State of Bihar, the Supreme Court has
delineated certain situations where even the number of persons in an unlawful
assembly becomes less than 5, then also conviction could take place. Evidence must
be given that other than the person convicted, there are other people who are involved
at a given point of time. Evidence to show the presence of other unidentified persons
that are part of the unlawful assembly. The first information report must reflect such
to be the case even if there is no such charge formed at that given point of time.
2. They must have a Common Object: The term “object” refers to design or purpose,
and for it to be “common” the person must share and abide by it. The members of an
unlawful assembly must have a common object to commit a particular offence. Unlike
common intention here prior meeting of minds is not important, the common object
could be constructed on the spot. Common object leaves scope for the likelihood of
events. Here the persons could also have an assumption that certain events “might
happen” or are “likely to happen”.

The presence of common objects could be shown by way of facts and circumstances
because the direct evidence of it is not possible. Section 149 of the IPC, 1860 deals
with the common object. The word ‘knew’ is used in the second part of this Section,
which means more than a “possibility” but less than “might have known”. Hence any
offence so committed by any member of the unlawful assembly is assumed that all
the member must have known at least the possibility of that act. This section further
implies that any offence committed in the prosecution of the common object is
immediately connected to a common object held by all the members of the unlawful
assembly.

3. Object Must be one of Those Specified in Section 141: The common object
possessed by the members of the unlawful assembly could be varied and could be
adjudged by appraising the facts and circumstances, however, the common object
needs to be the one already ascertained under section 141 of IPC, 1860.

In the case of Moti Das vs the State of Bihar, it is possible that the assembly started as
being lawful but later turned out to be unlawful. The following are the objects present
under Section 141 of the IPC, 1860:

4.Overawing the Central or a State Government or its Officer: The person is said to
be overawed by another when he takes him to fear due to superior force or use of
power. However mere overawe is not sufficient to attract the provisions of this
section, the use of criminal force is very important. The person must use some
criminal force against the other party so that he is overpowered by the threat or fear so
that he is unable to continue his legally assigned work or does something which he
wouldn’t have done otherwise. The unlawful assembly should also have the common
object to instil overawe in the minds of the people. The force should be used against
the state or central machinery or any of the officers working on their behalf. It is
essential to note that the officer must be carrying out the responsibility given to him
when the criminal force is applied otherwise this section won’t be applicable.

5.Resist any legal proceedings: The legal process means any proceedings which have
the legal mandate to be executed. Hence if any unlawful assembly act as a hindrance
in the execution of the unlawful assembly then it would be considered unlawful. It is
important to note that if the proceeding or process is not legal and if that is hindered
then that would not be considered as resistance under this section and hence not
punishable. For example- if an arrest is made without any legal warrant for the same,
and if that arrest is resisted by any assembly of 5 people then that would not attract
the provisions of this Section.
6. Commission of Mischief, Criminal Trespass or Any Other Offence: Mischief and
Criminal trespass are defined under Section 425 and 441 of the IPC, and offence here
means anything which is punishable under any special law or any local law. Hence,
any assembly which does not commit any of these offences then it cannot be termed
as unlawful assembly.

7. Forcible Possession and Dispossession: Any person cannot be asked to give up his
possession of anything due to criminal force, but if the act is lawful and the person is
legally bound to dispossess himself of that good, then this section would not be
applicable. If the right on the property is not certain and if force is used to resist its
dispossession then that assembly of more than 5 people that are involved would be
considered as unlawful assembly.

8. Obtaining the right to possession: Incorporeal rights mean the right to use any
property, as the use of well or water, etc. If by the use of criminal force any assembly
of 5 people deprives the person of such use of the property then it can be a ground for
punishment under this section. The procession is an assembly in motion. The
assembly is static. The procession, instead of a room, the procession takes place on
the roads. This is a fundamental right granted to the citizens under Article 19 of the
Indian Constitution. However one of the restrictions on this right is that the road
should be available for the passer-by too, and not only for the processionists. One of
the important conditions on the procession is that it should be peaceful, otherwise it
could be legally disbanded by police action.

Sections of unlawful assembly are also applicable to processions. Hence of the

processions are undertaken by a group of 5 or more people with an unlawful intention
shared by all the members of the procession could be termed as unlawful assembly
and therefore the member of this procession would be liable for punishment meant for
unlawful assembly. For Example, a group of 8 people went on the road with an
intention to burn the police station, then this procession would be an unlawful
assembly and could be punished as well.
 Enforcing a ‘Supposed’ Right

Supposed rights mean that the person does not have any right over the subject in
question. Under this Section “defending one’s right” is not punishable. It is fine to be
armed for the protection of the right which the person already possess i.e. to maintain
one’s right. For Example, a person can use arms to protect his property which he
lawfully owns. This Section punishes the enforcement of a right or supposed right by
way of a criminal act which makes an assembly liable for punishment.
 When Right to private defence is exceeded

If any act is done in furtherance to protect any property of self or any other individual,
then it is not an offence. In fact, such an act would not come under the “protection of
the right or supposed” and would be immune from any punishment. This would not
come under Section 144 or Section 149 of the IPC, 1860. However, if the offence is
committed which exceeds the ambit of private defence then such an act would make
the perpetrator liable for punishment. All the other members of the unlawful assembly
would be liable if constructive liability is to be construed.
 Illegal Compulsion

Under this Section, a person or any group is compelled by an assembly of 5 or more

people not do an act which he is legally bound to do or to do something which would
have not done under the legal constraints. The assembly initially could be lawful and
can later turn out to be unlawful. Example- an assembly formed for carrying out the
work of a collection of donation for the construction of tank in the society, but later
engaged in assaulting some other group which did the same work in other society.
 Test When There is a Group or Communal Clash

In case of communal violence, if people indulge in some unlawful activities then they
could be booked under the provisions of Unlawful Assembly. For Example- if in a
town, people of different communities pelted stones at each other to protest a
judgment taken by the Supreme Court. The police, in this case, is authorized to
disperse them under Section 129 of the IPC, 1860 and they could be booked under the
provisions of unlawful assembly. In case, however, if the people wouldn’t have pelted
stones then they couldn’t be liable for the punishment under unlawful assembly.
 Constructive Liability When Free Fight Occurs

Section 149 of the Act, makes the member of an unlawful assembly constructively
liable for the act done by any member of the unlawful assembly, however, it is to be
noted that the act done by the member should be in pursuance of the common
objective, otherwise other members of the assembly, who have not committed the
offence could not be held liable. In the case of Gajanand vs State of UP, free fight is
referred to as when two people went on to fight with each other and it was
predetermined. In this, it is immaterial whether the person has attacked or defended,
but what matters is the tactic that is used by the parties involved.
Supreme Court has made it clear in the case of Puran vs the State of Rajasthan that
for free fights constructive liability present under section 149 of the IPC, 1860 cannot
be invoked because the fact which is considered is the injury that is caused to the
other party by the person who was involved in the fight, hence other members of the
assembly would not be held liable for the offence of free fights.

 Common Object and Common Intention

 Under Section 34 of the IPC, the common intention is present which states that
several people commit any crime with the furtherance of shared intention to do
that crime. Each of the people is liable as of the crime is committed by him also.
 Under Section 149 common object is present which states that five or more
persons present in an unlawful assembly commit an offence. Even if the person
has not done the offence himself, but of that time he is a part of that unlawful
assembly he would be liable for the offence so committed.
 The number of persons present must be more than one.
 The number of members must be 5 or more.
 Prior meeting of the mind is necessary Exception- Kripal Singh vs the State of
UP.
 The common object could be formed on the spot also.
 All the persons involved are liable equally. Hence active participation is not
necessary.
 All the persons involved may not be liable equally. Active participation is
necessary.
 Does not specify any offence but states a rule of law.
 It describes a specific offence.
 Effect of Omission to Charge Accused When Charge Using Section 149 Fails
There is a substantial difference between Section 34 and Section 149, of this Act,
however, still, they overlap to some extent, and this overlapping is to be
determined on a case to case basis, as it varies according to the facts.
 The common object which is material to the charge under Section 149 does not
necessarily involve a common intention, then the substitution of Section 34 for
Section 149 might be detrimental to the interest of the convict and hence should
not be allowed. However, if the facts to be proved and the evidence to be adduced
with reference to the charge under Section 149 would be the same if the charge
were under Section 34, then the failure to charge the accused under Section 34
could not result in prejudice to the interest of the party and in such cases, the
substitution of Section 34 for Section 149 must be held to be a formal matter.
(Karnail Singh and another, vs. The State of Punjab).

For section 149 to be applicable, the presence of five or more people is necessary, but
if the assembly of five or more people could not be ascertained, then in that case, joint
liability could be imposed under section 34. Under this section, the act should be done
in furtherance of the common “intention”. Moreover, if no joint liability could be
established then each person could be held liable in his individual capacity. Hence
even if the charge fails under Section 149, still other provisions could be applied to
ascertain the liability of the accused.
 Test for Common Object

 To test whether the unlawful assembly had a common object or not, it is not
necessary for the parties to have actually met and conspired, but such intention
could be inferred from the facts and circumstances of the case. A combined attack
by all the five members of an unlawful assembly is enough to prove the common
intention.
 To show a common object, circumstances of the case, the attitude of the person
involved furnish the key to their mental bent. Any person who encourages or
takes part in such activities either by signs or gestures, or even wear a badge or
sign is said to be a member of that unlawful assembly and is sufficient to gauge
that he has a shared object for the offence so committed. On the other hand, a
mere presence without any sort of encouragement is not the proof of criminality.
 To test the common object at the starting, it wouldn’t be legitimate, to take into
account the actual act committed by the person at a later stage, and to infer that
such activities were part of the common object of the entire assembly.

Moreover, once all the ingredients of Section 141 are met, it won’t be enough for the
person to put forward the argument that he did nothing with his own hands. The
person would still be liable for punishment. Separate Charge Under Section 147 or
148, Indian Penal code 1860, not Essential When Charge Under Section 149 Exist.
The fallacy in the cases which hold that a charge under Section 147 of IPC, 1860 is
necessary arises because they ignore that the ingredients of Section 143 of the Act are
already implied in Section 147 and the ingredients of Section 147 are implicit when a
charge under Section 149 is included. An examination of Section 141 shows that the
common object which renders an assembly unlawful may involve the use or show of
criminal force, the commission of mischief or criminal trespass or other offences, or
resistance to the execution of any law or of any legal process. Offences under Section
143 and Section 147, ought to always be present when the charge is laid for an
offence like murder with the aid of Section 149, but the other two charges need not be
framed separately unless it is sought to secure a conviction under them. It is thus that
Section 143 is not used when the charge is under Section 147 or Section 148, of the
Act and Section 147 is not used when the charge is under Section 148. Section 147
may be dispensed with when the charge is under Section 149 read with an offence
under IPC. (Mahadev Sharma vs the State of Bihar)”.

 On Nature of Proof of Common Object in Group or Communal Clashes

 Communal clashes could be considered a small part of mammoth rioting. In these

cases, the court finds it very difficult to ascertain the common object. Moreover,
due to a large number of people, it is very difficult to assign the act done by each
individual and punish them accordingly.
 The common object could be furnished from the fact of the case. If the crime is
committed by the entire assembly in a concerted fashion, in that case, the entire
assembly would be held liable as common intention could be construed from the
acts of the people.
 In such cases, the role of an eye witness is very crucial, as he would give
instances of what happened at the crime scene. But care should be taken and
should not be relied on a single eyewitness. The perpetrators of the crime should
be carefully distinguished from the spectators and wayfarers.

 Other Connected Provisions

There are various provisions which come under the umbrella provision of Unlawful
Assembly.
Being a Member of Unlawful Assembly—Contents and Punishment : This provision
is present under Section 142 of the IPC, 1860 when a person joins any assembly with
full knowledge of the fact that in the assembly certain elements which are not lawful
and still joins it or continues (physical presence) to be part of it, then that person is
said to be a member of an unlawful assembly. Mere presence in an unlawful assembly
does not mean that the person is its member. He should have a common objective to
disturb public peace. If the person detaches itself from the assembly after knowing of
its unlawfulness then that person is no longer a member of that assembly as he lacks a
common intention which is very important. Moreover, if the common objective does
not execute properly due to some weakness then too it shall be considered as an
unlawful assembly. Under Section 143 of the IPC, 1860 the person being a member of
an unlawful assembly is liable for punishment for up to 6 months or fine or both.

 Ingredients of membership of an unlawful assembly

According to Section 142, which deals with the membership of an unlawful assembly,
the following are the essential ingredients :
 A person should be aware of the unlawful elements of the assembly.
 A person should possess an intention to join that unlawful assembly. Any sort of
coercion to become a part of the assembly, will not render the person to be a part
of the unlawful assembly.
 A person is a part of the assembly, which later turns out to be an unlawful
assembly and still continues to be a part of the assembly by consent which could
be either express or implied.
 Joining an Unlawful Assembly Armed with Deadly Weapon : This comes under
Section 144, of the Act which could be seen as an extension of Section 143.
Under this Section (144) a person who joins an unlawful assembly with deadly or
dangerous arms would be punished for 2 years or fine or both. Under this Section,
a person who is although not carrying a deadly weapon, but is a part of an
unlawful assembly will still be liable to be punished.

 Ingredients Joining assembly with a deadly weapon

 The weapon could be anything that has the potential to cause death.
 The definition of deadly weapon varies upon the facts of the case. Any small
object which could take someone’s life could also be termed as a deadly weapon.

 Rendering Aid in Unlawful Assembly

Section 150,157 and 158 of the Act, makes rendering aid in an unlawful assembly,
liable for punishment. Section 150 basically deals with the perpetrator and the
originators of the crime. This Section is created with the objective to punish the
persons who are the mind behind the crime that is committed. The person who
connive or hire the people that actually indulge in the commission of the crime. The
law seeks to treat these persons at par with the persons who have actually committed
the offence. Thus this section does not deal with the abetment or participation in the
crime, but goes at the initial level of the planning the crime and hiring people to do
such criminal acts.
Section 157 ensures the conviction of the person who-
 Assembles or harbours people in a house or any other premises.
 The house or premise must be under the person so accused.
 The objective of such assembly, hiring or employment is to be a part of an
unlawful assembly.
 The person who is convicted for the acts mentioned above must know about these
facts.
 Section 158 of the IPC convicts a person who employs or hires himself to be part
of the unlawful assembly and hence assists it.

Essential Ingredients of Section 153A

 Promotion of enmity between different groups of religion, race, caste, residence,

place of birth, community or any other group.
 Acts that disturb the public tranquillity and encourages discords between different
groups or castes or communities.
 Acts or objects that cause fear or alarm or threat or insecurity for any religious,
racial, language or regional group or caste or community by the use of criminal
force or any sort of violence against them.
 Mens Rea is an important element to hold a person liable for punishment under
this Section (Bilal Ahmad Kalo vs State of Andhra Pradesh).
 The presence of two communities is important to attract this provision. Mere
derogation of the feelings of one community without any reference to any other
community is not considered under this Section. (Bilal Ahmad Kalo vs State of
Andhra Pradesh).
Scope of Section 153A: In the case of Gopal Vinayak Godse vs Union of India,
Bombay High Court decided the scope of Section 153A of the IPC. It held that- It is
not necessary that enmity or hatred actually arose between different classes, because
of certain acts or objects.
The matter which comes under the purview of Section 153A of the IPC, should be
considered a whole and not some stray or isolated parts or portions. It is necessary to
consider the class for which the act or the object, meant to promote enmity is
subjected to. The current dynamics between the classes so taken should also be taken
into account. Truth is no defence under Section 153A. In fact, the greater the truth, the
greater the impact on the mind on the minds of the people, the act or object was
subjected to.
Section153B : This section was added to contain the rising disharmony amongst
various communities. This was added in the year 1972, in which there was a high
level of tension amongst various castes and this was affecting not only the social
harmony prevalent in the society but was also affecting the national integrity of the
country. Publishes an imputation that certain person who belongs to a particular class,
religion or caste cannot bear allegiance to the national integrity. A certain group of
people belonging to particular castes or community are bereaved of their right to
citizenship. Any of the aforementioned act must perpetuate discord and harmony
amongst different classes of people.

Proposals for Reform : The law commission of India has circulated a questionnaire
covering various aspects of public order. Only 12% of the respondents were satisfied
with the current management of public offences in our country. 5% were satisfied
only to some extent while 79% were highly dissatisfied, and the major reasons being-
External influence in public order management. The root cause of problems is not
addressed. No long term solution is taken. Inadequate involvement of NGOs and
other civil societies or other social workers. Lack of institutional mechanism to
delineate roles and responsibilities. The lower rank officers do not have the power to
control the crime at a nascent stage. Lack of training to civil servants and police to
deal with public offences. Lack of modern technology and types of equipment.
Absence of criminalised database of perpetrators. Lack of cohesive all India policy for
solving the menace of public disorder and offences. Ineffective performance
monitoring systems and management agencies. Lack of accountability of police
personnel and other related agencies.

 Several reforms that could be introduced are:

 Establishment of rule of law.
 Visible policing is an effective method to deter public offences.
 An effective, efficient, accountable and well-equipped police system.
 A strong, autonomous and effective crime investigation machinery backed by a
professionally competent and fair criminal justice system.
 Civil societies which are conscious of their rights, powers and duties.

CASE LAWS

CASE LAW 1:

Court Supreme Court of India

Full case In Attorney General for India v.

name Satish and others

Decided 18 November 2021

Citation(s) 2021 SCC online SC 42

Judges Justice UU Lalit, Justice S

sitting Ravindra Bhat and Justice Bela
M Trivedi

Decision by Justice Bela M Trivedi

Introduction : In Attorney General for India v. Satish and others (2021), the Hon'ble
Supreme Court overturned the decision of the Bombay High Court that held that skin-
to-skin contact is a requirement for an offence of sexual assault to be established
under the Protection of Children from Sexual Offenses (POCSO) Act, 2012. The case
started when the Attorney General of India, the National Commission for Women,
and the State of Maharashtra appealed two rulings by Justice Ganediwala of the
Bombay High Court. The facts, arguments put out, and the Supreme Court's ruling in
this case will all be highlighted by the author in this article.

Facts of the Case: The prosecution’s argument is that the defendant lured the child,
who was 12-year-old girl (Prosecutrix) at the time of commission of offence, to his
home on the pretense of giving her a guava, then touches her breast and made an
attempt to take her clothes off. Subsequently, when the prosecutrix screamed,
appellant was found to have exited the room while bottling the prosecutrix still inside.
A neighbor was disturbed by the prosecutrix screams, and they alerted the prosecutrix
mother, who was looking for the prosecutrix. When the prosecutrix mother asked the
appellant about the whereabouts of her daughter, he denied her presence in his house.
However, when the mother walked inside his house, she discovered that the door of
the room was locked. The young prosecutrix was crying inside his bolted room when
the prosecutrix mother opened door of the room. After hearing her daughter, the
mother took the child to the police station, where an FIR against the accused was
lodged.

Procedural history: After the trial, the sessions court found the defendant guilty of
violating Section 354,363,342 of IPC (Assault or criminal force against a lady with
the intent to violate her modesty,
Kidnapping, Wrongful Confinement) and section 8 of the POCSO (Sexual Assault).
The Judgment was then challenged by the accused in the High Court of Bombay
(Nagpur Bench) challenging the validity of the judgment delivered by the Special
Court.

Judgment by the High Court: The following facts were recognized by the High
Court • That the young girl was 12 years old when the incident was committed. • That
what happened at the crime site is corroborated by the testimony of the mother and
the small child. • The accused attempted to take off the girl’s salwar while pressing
against the child’s breast. The High Court then considers whether “pressing off
breast’ and “try to remove salwar” would qualify as “sexual assault” under section 7
of the POCSO Act, which is punishable under section 8 of POCSO. According to
Section 7 of the POCSO Act, “Sexual Assault” is defined as any act with sexual
purpose that involves physical contact without penetration and involves touching a
child vagina, penis, anus, or breast or compelling a child to do so. The High Court
determined that the grouping by the appellant did not constitute sexual harassment
under section 7 of the POCSO Act because it was done through the minor’s cloth and
there was no skin-to-skin contact. The High Court was of the view that the detailed
evidence that could support in knowing whether the top was removed, or whether the
hand was placed inside the top was unavailable. However, it is important to keep in
mind that this would fall under the purview of Section 354. IPC (Assault or Criminal
force against a lady with the intent to violate her modesty). In the view of the
stringent nature of the punishment provided for the offence stronger evidence and
severe claims are indispensable. The presiding Judge has also correctly observed that
the crime’s penalty must be commensurate with its magnitude. The minimum
sentence for insulting a woman’s modesty under IPC is one to five years in prison,
whereas sexual assault under the POCSO Act carries a sentence of imprisonment
between three to five years. Thus, the Court properly absolved the plaintiff of the
violation of Section 8 of the POCSO Act but found him guilty of violating Sections
354 of the IPC and sentenced him to a year in jail. The Court forfeited the appellant’s
bail bond and issued a non-bailable warrant against him in light of the fact that he had
already been granted bail

Issue with the Case after High Court Judgement: Whether the actions of “pressing
the breast of a female” and “an effort to remove a female’s salwar/garment” would
constitute “sexual assault” as that term is defined in Section 7 of the POCSO Act and
is punishable by Section 8.

Judgment of Supreme Court: In the case of accused Satish, the Bombay High
Court's decision was overturned by the Supreme Court and reinstated the Special
Court's decision. The accused was found guilty of the offences listed in Sections 342,
354 and 363 of the IPC, as well as Section 8 of the POCSO Act. For the offence under
Section 8 of the POCSO Act, Satish was ordered to serve three years of rigorous
imprisonment, pay a fine of Rs. 500, and serve one month of simple jail as a
substitute. No separate sentence was given to the defendant for the other IPC offences
since he had already received a term for the primary offence under Section 8 of the
POCSO Act. The accused was found guilty of the offenses listed in Sections 342, 354
and 363 of the IPC, as well as Section 8 of the POCSO Act. For the offense under
Section 8 of the POCSO Act, Satish was ordered to serve three years of rigorous
imprisonment, pay a fine of Rs. 500, and serve one month of simple imprisonment as
a substitute. No separate sentence was given to the defendant for the other IPC
offenses because he had already received a term for the primary offenses under
Section 8 of the POCSO Act.

Analysis of the Judgment: 1)Adverse Impact on the Victim- The irrationality of the
judgement will have an adverse impact on the victims of such heinous crimes. The
roots of good touch and bad touch have been tampered. This interpretation, along with
horrifying inquires likes the length of victims to report sexual crimes by victims. It is
disturbing to imagine the plights of the victims when their suffering is not even
recognized by the courts. To top it all off, the abuser faces lesser punishment when he
is charged under the Section of IPC which is one year rather than being charged under
the sections of POCSO under which stricter punishment of five years is mandatory.
This judgment goes against the basic intent and purpose of the POCSO Act, which
was to impose harsher penalties than those provided by the IPC and guarantee a
higher level of punishment for crimes committed against the minors. 2) Illogical
Interpretation- The interpretation of the definition of skin-to-skin contact by the Court
is irrational on the ground that pressing breast without skin-to-skin contact does not
come under the definition of Sexual Assault of POCSO. The definition of Sexual
Assault given by the Court should be progressive rather than the regressive so that the
people can rely on the Court to get justice if any sexual crimes is committed against
children.

Conclusion: Sexual Assault and other Sexual offences against adolescents and
juveniles are frequently reported from all around the nation. In India, a nation with
nearly 44 crore children, child sexual abuse is still a major pervasive problem.
National Crime Records Bureau (NCRB) published its annual “Crime in India’ report
providing statistics on crimes committed in India in 2020. In the last three years,
according to its data 4,18,385 crimes against children were recorded. Of these, child
sex abuse offence under the Protection of Children against Sexual Offences (POCSO)
Act, 2012, alone accounted for 1,34,383-or roughly one third-of the recorded
incidents. The problem of Child Sexual Abuse has been a global problem and has
been recognized as a severe public health issue. Children who are victims of such
activity often suffer from significant trauma, which would have long term effects on
their body. The survivors of the CSA are more likely to experience personality
problems and other psychiatric illnesses. The stay order imposed by the Supreme
Court may be the small solace we all needed given how much trouble this verdict has
already caused in the society. However, does not much in respect to change the way
that society thinks or the judges who preside over the case and give the sentence.

CONCLUSION & SUGGESTIONS

Public order is not just any other issue in the governance of the country, it is the core
of it, comprising one of the vital aspects on which the democracy lies and the
important realm of the foundation of our nation as a whole. Chapter eighth of the
Indian Penal Code deals with the offences against public tranquillity. These are
offences which are committed against the whole society and disturbs the peace and
tranquillity of the society. Any offence committed against an individual, but still
could derange the public peace would come under the ambit of a public offence.
Moreover, it is not necessary that actual offence is committed, but even if there is a
possibility of causing public disorder, then it is a punishable offence.
These offences are categorised into four, i.e. Unlawful assembly, rioting, affray and
enmity amongst different classes. All of them are to a certain extent similar to each
other with minor differences. However, some reforms are needed to make these
provisions in accordance with the changing times. The Indian Penal Code has indeed
taken some stern steps to restrict public disturbances. Public disturbances not only
create restrictions in the normal working of the society but also hampers societal
development. For a society to progress there is a need for peace and fewer
distractions. Further such unruly behaviour doesn’t have a positive impact on society.
Such behaviour not only instils fear among people but also prevents them from
standing against such behaviour. The police authorities do take necessary steps to
restrict such behaviour but responsibility also lies on people to discourage such civil
unrest. Civil unrest like these also results in the destruction of public property which
in turn affects the public. However, with stricter norms and more awareness among
the people offences like these can be prevented and ultimately leading to a peaceful
society.

Peace is a tool that takes a country on the path of progress.  Getting a better peaceful
environment is a goal that leads to development of one’s Nation. This goal may not be
an easy one to achieve, but things that are worth doing are often not easy.
The Indian penal code 1872 punishes the offences against the public tranquility. The
public tranquility is a criminal offences and it is injurious public peace for the
development of the society. ”Crimes are not going to decrease until the laws are
tightened.”  So some reforms are needed to make these provisions for changing time.

The above study shows how numerous provisions of international humanitarian law
establish, support and develop the principles of special protection for children in times
of armed conflict. These principles cover a wide variety of areas and situations for
different ages of children. And the emphasis has always been centred on the
humanitarian aspect of the need and the measures suggested to meet the situation. For
example, it has always been kept in mind that infants and children under fifteen are
kept with their families and are well provided with food and clothing and education.
The children are properly identified, and even when they commit offences, their age
and development of faculties are taken into consideration while awarding punishment.
Execution of death penalty is prohibited. The special protection is prescribed in no
less than twenty-five of the provisions of the Geneva Conventions of 1949 and the
two Additional Protocols of 1977. Participation of children under fifteen in hostilities
is prohibited and the enrolment of children between fifteen and eighteen years of age
is regulated.
Notwithstanding the above, it is seen, that children are still taking part in hostilities
and continue to be the innocent victims of armed conflict which, unfortunately, are
many. In this connection, it is observed that fault is not in the law but in its
observance. Parties to the conflicts and their instrumentalities continue to be brutal,
disregarding the well-established and clear principles of international humanitarian
law, in seeking their objectives to win the wars. Apparently what is needed is not
more law at present but its acceptance and observance in practice. It is essential that
the law already in force – the Geneva Conventions regime – is observed in letter and
spirit and the international community, through concerted effort, make it a crusade. In
addition, the following measures may be considered for action:
(1) It is universally recognised that ICRC has done a tremendous good work in this
regard and commands the highest respect and acceptance among the world
community. However it may increase its activity of visits and fact-finding missions in
times of conflict and peace in the cause of implementation.
(2) Conscience of the international community should be aroused through various
activities.
(3) NGO’s and national humanitarian rights commissions should be encouraged to
play an effective role through education, dissemination of information and as
observers as is happening in the field of observance of human rights, arms control,
environment etc.
(4) International sanctions which affect the children should be prohibited.
(5) More and more guidelines (standards) for the protection of children may be
brought out for guidance and establishing standards. Studies may be directed for
strengthening the measures for implementing the international humanitarian law.

REFERENCES
Webliography:
 State of Maharashtra v. Joseph Mingel Koli; (1997) 2 Crimes 228 (Bom).
 Allauddin Mian Sharif Mian v. State of Bihar; (1989) Cr LJ 1466 : AIR 1989 SC
1456.

 Emperor v. Ahmed Hasham; [1932] 35 Bom LR 240.

 State of Orissa v. RC Chowala;  AIR 1966 Orissa 192.

 Bilal Ahmed Kaloo v. State of Andhra Pradesh; (1997) 7 Supreme Today 127.

 Criminal Law (Amendment) Act 1972, s 2.

 (1996) Cri LJ 1472 (AP).

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 https://adrindia.org/sites/default/files/Details%20of%20IPC%20Sections
%20153A,%20295%20&%20295A.pdf
 http://lawcommissionofindia.nic.in/reports/Report267.pdf
 https://www.legalbites.in/offences-against-public-tranquillity/
 https://www.srdlawnotes.com/2017/03/difference-between-common-intention-
and.html
 http://delhihighcourt.nic.in/writereaddata/upload/CourtRules/
CourtRuleFile_T4NVG6MR.PDF