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The 21st Century is far from being progressive as far as the issue of mob lynching in India is concerned. The case of Mohammad Akhlaq in India ushered a new phase of violence wherein justice was administered by a mob that believed in the protection of the holy cow.
Another alarming incident occurred in the Palghar district on the nineteenth of April which later acquired a communal colour despite the country being under lockdown due to Covid-19. Three people were lynched at the remote Gadchinchle village in Palghar district while they were trying to cross the border to attend a funeral in Gujarat by a mob of over hundred because of apparent rumours going around about the three being thieves and part of a kidnappers’ gang. The most recent case of lynching is that of a 23-year old Rahul, who was tied to a tree and beaten to death in August 2020 by four suspects on account of mobile theft.
A lynch mob may be defined as a group of people who want to attack someone who they think has committed a serious crime. It is a culmination of people taking the law into their own hands as a means of achieving justice. Be it the cow-related violence of the gaurakshaks in Dadri, Hapur or Alwar or the lynching of child-lifters predominantly in Tamil Nadu or Assam, the mobs are governed by their sense of righteousness and the fear of the outsiders. “Some motivations can be hot-blooded, like the lynching of thieves or rapists. In other cases, lynching can also be cold-blooded like honour killings where murders are premeditated to set an example for others.
Judicial Response to Lynchings in India
There currently exists no single law that governs the crime of mob lynching. The government has maintained that ‘police’ and ‘public order’ are state subjects. Guidelines in the form of preventive, remedial and punitive measures were provided by the Supreme Court in the Tehseen Poonawalla judgment of 2017. The judgment provides for governments to regulate and stop the dissemination of explosive messages or videos on social media and other platforms; to register FIRs against persons under Section 153A of the Indian Penal Code for promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony. The remedial measures involve a victim compensation scheme for lynching or mob violence under Section 357A of the Criminal Procedure Code, 1973. Lastly, by relying on the case of Arumugam Sevai, officials with prior knowledge failing to prevent such incidents, were to be subjected to disciplinary action by State authorities.
The court also directed state governments to designate a senior police officer as nodal officer in each district to take steps to prevent mob violence and lynching. The nodal officers are to hold monthly meetings with local intelligence units and the Director-General of Police of the state or Secretary, Home Department, must, in turn, hold regular review meetings with nodal officers in order to curb such instances of vigilantism by mobs.
Applicable Laws for Lynching in India
Sections 307 (attempt to commit murder), 323 (causing voluntary hurt), 325 (grievous hurt) 147 (rioting), 148 (rioting armed with deadly weapons) and 149 (unlawful assembly) of the IPC would apply in case of an act of mob lynching. The first clause under Section 149 is the existence of a common object between the members of an unlawful assembly, the second is the knowledge of the likelihood of commission of such an offence by the unlawful assembly which would make a person vicariously liable under. Section 302 (punishment for murder) read with Sections 34 (common intention) or Section 120 B (criminal conspiracy) of the IPC can be made applicable to charge the whole mob if such mob violence results in the death of the victim. Under Section 223 (a) of the Criminal Procedure Code, persons accused of the same offence as part of the same transaction may be prosecuted.
The Protection of Lynching Act, 2017 also known as the Manav Suraksha Bill (MASUKA) put forth by the National Campaign against Mob Lynching (NCAML), defined, for the first time in Indian legal history, the terms ‘lynching’, ‘mob’ and ‘victim’. It was introduced in the Rajya Sabha as a private member’s bill. It gained more traction after Prime Minister Narendra Modi made comments against cow vigilantism. It reconciles the definition of the term ‘mob’ as mentioned in the IPC and CrPC to require five or more persons as opposed to this Bill, wherein, two or more persons resorting to violence by extrajudicial means would constitute a mob.
Provision was made for Special Courts for the expeditious trial of such offences and for the rehabilitation of the victim and/ or their families. It made lynching a non-bailable offence, criminalised dereliction of duty by a policeman, criminalised incitement on social media, and stipulated that adequate compensation be paid, within a definite time frame, to victims and survivors. It also guaranteed a speedy trial and witness protection. The effect of this Bill, however, remains dormant until it is passed by the legislature.
State Legislations on Lynching
Adhering to the directives of the Supreme Court, the State of Manipur passed an Ordinance to create a special offence of lynching so as to instil fear in the minds of people and to also rehabilitate the victims of such horrendous acts. The legislation in Manipur restricts hate crimes only to those that involve mobs. It also punishes public officials for dereliction of duty. Another path-breaking feature of this law is that it does away with the requirement of state sanction for a hate crime as opposed to the present law that is resorted to under Section 153A of the Indian Penal Code. The last substantial contribution of the law is the requirement of the state to formulate a scheme for relief camps and rehabilitation in case of displacement of victims, and death compensation.
Being the second state to pass a bill against mob lynching, The Rajasthan Protection from Lynching Bill-2019 aims at prevention and protection by appointing special judges for speedy trials of a victim’s family. The death of the victim would result in life imprisonment of the offender along with a fine of rupees five lakhs. This Bill was opposed by the BJP for ‘being brought just to appease one community’.
In order to tackle the social evil of lynching, as stated by Mamta Banerjee, Chief Minister of West Bengal, three categories of punishment have been proposed in the anti-lynching bill tabled in the Legislative Assembly. Punishments are to be awarded based on the intensity of harm suffered by the victim. If the victim “suffers hurt”, the perpetrator would be sent to jail for a maximum of three years with a fine of one lakh. If the victim suffers “grievous hurt”, the punishment would be life imprisonment or imprisonment up to ten years and the fine would range between Rs 25,000 to lakh. If the act perpetrated results in the death of the victim, the perpetrator would be “punished with death sentence or rigorous imprisonment for life” and fine ranging from rupees one to five lakhs”.
The Uttar Pradesh Law Commission submitted a 128-page report citing various cases of lynching in the state coupled with the recommendations made by the Supreme Court in 2018 on mob lynching, along with the draft Bill to Chief Minister Yogi Adityanath. The Uttar Pradesh Combating of Mob Lynching Bill, 2019 aims to ensure effective protection of the constitutional rights of vulnerable persons, to punish acts of mob lynching, to provide for designated courts for the expeditious trial of such offences, for the rehabilitation of victims of mob lynching and their families. It also suggested punishment for conspiracy, aid or abetment in such cases as well as for obstructing the legal process.
At present, states are promulgating their own legislations to deal with the menace of mob lynching. However, each state is doing so at its own pace, leading to haphazard mechanisms of tackling such horrendous acts. Thus, having a uniform law govern ‘lynching’ which not only clearly defines what constitutes the act but also prescribes uniform procedure and punishment for the same is the need of the hour. Whether national legislation that prohibits and punishes mob lynching as opposed to an amendment in the IPC to that effect would be ideal is debatable as it must be discerned whether the effective implementation of the hitherto existing laws under the IPC are sufficient or if there is a need for new legislation or provision under the IPC to specifically deal with crimes pertaining to mob lynching. While the Supreme Court has issued directives for states to follow, it remains ineffective as current laws cannot keep up with the rise in cases of lynching. Hence, as argued above, we must strive to attain uniformity in laws, procedure and punishment for the inhumane act of mob lynching.
ABOUT THE AUTHOR(S)
Akanksha Singh is a law graduate from Dr Ram Manohar Lohiya National Law University, Lucknow.
Sanjana Gopal is a law graduate from Dr Ram Manohar Lohiya National Law University, Lucknow.
In Content Picture Credit: Times of India
Kindly note that the views and opinions expressed are of the authors and not of the Indian Journal of Law and Public Policy.