September 1, 2020
September 1, 2020


“A people eager to prejudge guilt as opposed to innocence, are a people ripe and ready to become a despot’s willing executioners.”
The recent upsurges in several mob lynching incidents particularly in India have embarked a question pertaining to curbing its menace. Habitually mob lynching is referred to as a public execution by the mob or categorically an informal execution of a person which goes against the very purpose of the ‘due process of law’ as per Article 21 of the Constitution of India (herein with ‘Constitution’). Additionally, the Supreme Court in the case of Tahseen S Poonawalla v. Union of India labelled mob lynching as a ‘horrendous act of mobocracy’. The court maintained that such acts can’t be tolerated and laid certain guidelines including punitive, preventive, and remedial measures, however, such malefactions perpetuated to be liberating from penalization. It is evident from the recent incident of havoc which set forth in Palghar district of Maharastra whereby three men were lynched by the iron-fisted mob on the suspicion of them being the child kidnappers. Moreover, the NHRC (National Human Rights Commission) has also given notice to the Uttar Pradesh government and made them liable for the Phalghar incident by considering the lack of police attention in curbing such menace. Further, it should be noted that this horrendous act of mobocracy is not only limited to lynching in the name of cow vigilantism and child trafficking but it also undertakes lynching based on religion, inter-caste relationships, oppression towards lower class/caste as well. In one of the cases, one Tabrez Ansari was put to death just because he had stolen the cattle. Another case is related to the lost humanity which set forth at Dimapur in Nagaland wherein a populated mob broke into the prison and dragged the accused out of the jail and made him parade naked just before making his body to a consummate rest. The most shocking fact is that it commenced in front of the police personnel.
Antecedents of Mob Lynching
The initiating roots of lynching are embedded predominantly in the United States of America (US). Its wordy existence came soon after one Captain William Lynch, the then head of an informal tribunal in Virginia (1780), who himself punished a British Loyalist on a suspicion of crime during the American Revolutionary war. Since then, the process was described as ‘Lynch Laws’. Moreover, in the time frame between 1882 and 1951, around 4,730 individual submitted themselves before the violent mob amidst them the majority amounting to 72.4% were lynched on the occasion of racial discrimination. As far as India is considered, the roots of lynching cannot certainly be found, however, soon after the advent of Modi led BJP in 2014, 97% of this horrendous act came into notice. It is further been reported that in 2017, the majority of cow terror attacks were reported from the BJP ruled states. The cow offenders were subsequently given a name as gautankwad. The attackers have imbibed a perception to eliminate their prey that does not fit in their cultural norms.
Moreover, the substantive and procedural laws for its deterrence are majorly sown in the Indian Penal Code (IPC) and the Criminal Procedure Code (Crpc), however, due to the defence of impunity which is being claimed by the accused mob, they neither get arrested nor put before the court of law. In the present scenario, the mob has become a judge, jury, and executioner of its own cause, therefore, leading to undermining the rule of law as per Article 21 of the Constitution.
Change in the perception of Society
Since the establishment of jury system at the time of Nehruvian era, the conclusion of eviction has been solely defined by the majoritarian vote of the bench, however, soon after the Nanavati’s case, the reasoning has been shifted more to the emotional aspects from the reasoning aspects. Similarly, the mob is being guided on their own set of beliefs which is hindering the lives of innocents. The delay in pronouncements of the decision by the hon’ble court makes the mob intolerable and consequently, the mob starts taking advantage of the wrong principle ‘guilty until proven innocent’ which sabotages the principle of equity. In furtherance to it, Justice Deepak Misra while authoring the judgment in the case of Tahseen S. Poonawalla v. Union of India also made an argument that mob lynching predominantly infringes the fundamental right given to an individual under Article 15 of the Indian Constitution which protects the individual from discrimination on the basis of race, caste, sex, religion, etc.
Inadequacy in provisions
The deterring roots of mob lynching is particularly sown under Section 223(a) of the Crpc which reads as “a person will be accused prima facie if the same offence is committed in the same course of transaction”, however, because of the lacunae in this provision it cannot be ascertained who inflicted what amount of force, as the punishment would vary with respect to the force exerted. This becomes the reason for the low conviction rate of the accused involved in it. The central government holds the same viewpoint, therefore, they stand in favour of amending the already established law and making it harsher rather than making new provisions or else it will create multiplicity, ambiguity, and difficulty in implementation. In addition to it, there is no provision that precisely defines the intricacies of the mob and how their liability will be assessed or ascertained. Several incidents of the same have been committed by the armed forces as well. AFSPA (Armed Force Special Powers Act, 1958), has been looked upon by the army personnel since ages which empowers them to shoot, arrest, destroy properties of individuals on mere suspicion without following the due process of law. This infringement of the due process of law has led recent upsurge in fake encounters as well.
The immediate response to prohibit this menace is enshrined under Section 144 of the Crpc, however, the police personnel cannot certainly hold control on the mob on the ground that the latter is can easily overpower the former. An effective step to prevent such violent mob would be to make a list of all the perpetrators who in the past have done crimes related to caste and religion.
Judicial pronouncements
The implementation of the guidelines laid in the case of Tahseen S Poonawalla v. Union of India is not as much effective as the states contend to, due to which cases are still coming up in the light. However, by relying on certain constitutional provisions such as Article 355 which was given utmost recognition by the Supreme Court in the case of Nandini Sundar v. State of Chhattisgarh, whereby the court held that it is the duty of the state to curb the internal disturbance to ensure peace and order. In this case, the locals were hired by the State police so as to curb the oppression which is being caused by the Maoist. However, it can be undisputedly stated that if such local were given excessive power to encounter the Maoists then it will prima facie infringe the prominent Indian jurisprudence principle ‘innocent until proven guilty’. It can further be said that the internal disturbance thus caused is because of the intentional inadequacy in the timely action by the police personnel. Moreover, many a time it has been noted that the police personnel came to the crime scene when the victim has already been lynched. In the case of Arumugal Servai v. State of Tamil Nadu, the SC strictly permitted to the state to initiate actions against the police personnel who are inadequate in curbing hate crimes. However, such actions against police personnel haven’t been seen much in today’s era.
It should be noted that fair trial is of utmost importance and in order to respect the provisions of the Constitution, it should be observed in the common parlance. In Tehseen S. Poonawalla v. Union of India, the Supreme Court stated that “The majesty of law cannot be sullied simply because an individual or a group generate the attitude that they have been empowered by the principles set out in law to take its enforcement into their own hands and gradually become a law unto themselves and punish the violator on their own assumption and in the manner in which they deem fit. They forget that the administration of law is conferred on the law enforcing agencies and no one is allowed to take the law into his own hands on the fancy of his “shallow spirit of judgment”. Just as one is entitled to fight for his rights in law, the other is entitled to be treated as innocent till he is found guilty after a fair trial. No act of a citizen is to be adjudged by any kind of community under the guise of protectors of law.
Concluding Remark
Anti-mob lynching law has become a need of the hour; it not only will ensure the prevention of horrendous crime but will also make indulging party harshly liable. The basic reason for mob indulging into such crimes is the lack of faith in the judiciary, it is a wrong misconception that ‘justice delayed is justice denied.’ Furthermore, until now there is no prominent record of perpetrators which is leading to an exponential increase in such crime rate. And the author is of the opinion that mere legislation will not curb such acts, the implementation of such legislation should also be fact-checked by the fourth pillar of our democracy. Moreover, the indulging party should be made aware of its consequence. The political leaders have to rise above their political intentions and should ensure the duty of a state to protect their population’s fundamental rights.




Ashutosh Rajput is a 2nd-year law student at Hidayatullah National Law University, Raipur.

In Content Picture Credit: National Herald

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