EXIGENCY FOR LEGISLATION ON MOB LYNCHING – A CONUNDRUM

Shivang Shukla

The author of this Article is a Law Student, Jagran Lakecity University, Bhopal.

“Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become 'the new normal'. The State cannot turn a deaf ear to the growing rumblings of its people,"

In its judgment on case of Tehseen S. Poonawalla v. Union of India and others the Hon’ble Supreme Court recognized mob lynching as the horrendous act and if not checked on time will gradually take the shape of Typhon-like monster and thus, apex court directed for the formation of new law on mob lynching. The Supreme Court has further laid down some preventive, remedial and punitive measures to deal with offences like mob violence and cow vigilantism which have been highlighted in this paper. There have been about 28 deaths and 63 incidents of mob lynching and violence in India that have taken place 2010 to 2017, linked with so-called cow protection groups; 97 per cent of these acts have taken place post-May, 2014. This paper tries to analyse the burning question whether there is exigency of exclusive legislation mob lynching by elucidating on present situation, existing provisions and various views and opinions taken up by the prominent people on the issue. The paper further attempts to critically analyse the MASUKA (Manav Sukraksha Kanoon) or Protection from lynching Act, 2017 as proposed  by the National Campaign against Mob Lynching, founded by Tehseen Poonawalla, Shehla Rashid, Kanhaiya Kumar and Jignesh Mewani, was released at constitution club in New Delhi on 7^th july,2018 in the presence of  Prakash Ambedkar, grandson of BR Ambedkar , Sanjay Hegde (head of drafting committee), Professor Manoj Jha. Finally light has been thrown upon the steps taken by government so far to eliminate or curb this growing menace which is a threat to the principles of constitution.

Key Words: Mob-lynching, Law, MASUKA, government, Supreme Court

INTRODUCTION

“Lynching is an affront to the rule of law and to the exalted values of the constitution itself... lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day” –Justice Dipak Misra

There have been about 28 deaths and 63 incidents of mob lynching and violence in India that have taken place 2010 to 2017, linked with so-called cow protection groups; 97 per cent of these acts have taken place post-May, 2014. However, in 21 per cent of the cases, police officials ended up persecuting the victim/survivors by filing cases against them on the suspicion of having engaged in cow slaughter. In about 90 per cent of the cases, the victim/survivors belonged to Muslim community. In the first six months of 2018, the attacks increased by 75 per cent in comparison to 2017. This has been the most violent year in terms of cow protection related mob killings since 2010.[1] India has no specific law to deal with mob lynching .The Hon’ble Supreme Court of India has on 7^th July, 2018 pronounced a much awaited judgment on mob lynching considering it a horrendous act of mobocracy which cannot be allowed to inundate the law of the land and the democracy of the country. It further observed that earnest steps are needed to be taken to curb this recurrent pattern of violence which cannot become the new normal.[2] The apex court has put forth some preventive, punitive and remedial measures and guidelines in the 45 pages judgment to curb this utterly despicable and detestable idea of taking law in their own hands by the vigilante , resorting to such an action which is highly  obnoxious and hellish and nauseatingly perverse.[3] Besides these, the Hon’ble court has directed the parliament to frame a separate law concerning Mob Lynching.

Ø  Key Directions given by the Supreme Court

1. The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.

2. The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today's fast world of data collection.

3. The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.

4. The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.

5. The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

6. It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.

7.The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General.

8. Wide publicity and awareness campaign should be done by the state governments on radio and television and other media platforms including the official websites of the Home Department and Police of the states, that lynching and mob violence of any kind shall invite serious consequences under the law.

9. All Law enforcement and Intelligence Agencies of the State Governments shall monitor the social media platform and shall take action under the legal provision contained information Technology Act and other relevant law to curb and stop dissemination of irresponsible and explosive messages, video and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind. The police shall cause to register FIR under section 153 of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite m lynching and violence of any kind .

10. Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.  

11. It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

12. Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.

13. The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of CrPC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.

14. Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.[4]

DIVERGENT VIEWS ON NECESSITY OF EXCLUSIVE MOB LYNCHING LAW

Ø  Arguments against the framing of new law

In the light of the Supreme Court’s judgment and steps taken by government in pursuance of it raised a country -wide debate on whether we require a separate law addressing the Mob Lynching or just the modification and effective implementation of existing provisions will suffice? What the provisions of present Criminal Law which are comprehensive enough to swathe in its domain the inhumane act of Mob Lynching?

Some senior lawyers, advocates, activists, political leaders such as Arun Jaitley opinionated that there is no need for separate legislation on Mob Lynching.[5] The Law Ministry is in the favour of amending existing laws as it believes that new law will result in multiplicity of Laws and ambiguity, there will be practical difficulties in its implementation.[6] Even after studying the history of lynching tracing it to USA which witnessed a shift from the place termed as Lyncherdom by Mark Twain to no existence of any such illegal acts without framing any special law dealing with it.[7] Activists and Lawyer like Prashant Bhushan believes that inadequacy is not in Law but in its effective enforcement.[8] Supreme Court bench on giving this direction for separate law basis itself on the presumption that the new law will act as a deterrent when it observes that “instill a sense of fear for law amongst the people who involve themselves in such kinds of activities”[9] but sadly there is no such evidence to prove it. The new law according to some will only waste away the legislature’s time and resources when the laws already in place can be successfully amended to incorporate provisions dealing with Lynching. Also there are apprehensions that new law might be misused to detain the people say group of labourers from going on Dharna on pretence that they constitute a mob which might be threatening. The smooth and easy solution for the government is to make new legislation so that it does not have to ponder on and analyze the root causes of such violent and uncontrolled crowd behaviour which can be attributed to illiteracy, poverty, unemployment, education etc. [10]

Existing Laws that can deal with mob lynching The existing Indian Penal Code, 1860 provisions which might not have the required nomenclature mentioning the word lynching anywhere but can extend to acts of mob lynching but it can be always argued whether these present punishments are comprehensive and extensive enough and have are implementable practically to a cases of mob lynching or we still need more stringent and effective provisions[11]

Section 302 of Indian Penal Code: Section 302 of IPC deals with punishment for murder. It states that whoever commits murder shall be punished with death, or imprisonment for life and shall also be liable to fine.

Section 304 of Indian Penal Code: Culpable Homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Section 307 of Indian Penal Code: Attempt to Murder. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

Section 323 of IPC Punishment for voluntarily causing hurt: Whoever voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

Section 325 of IPC Punishment for voluntarily causing grievous hurt: Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

These above provided punishments will only be applicable for a group of people in mob lynching. These punishments have to be read with the sections provided below.

Section 34 of IPC: This section defines common intention. When a criminal act is done by several persons in furtherance of the 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 141 of IPC: This section deals with unlawful assembly. An assembly of five or more persons is designated an “unlawful assembly”. If an assembly commits any wrong to anyone, they all will come under this unlawful assembly and will be prosecuted with the punishment.

Section 149 of IPC: Every member of unlawful assembly guilty of offence commit­ted in prosecution of common object.—If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. If there is a common objective of a mob for example a mob with common object of punishing the cow traders will come under this section.

Section 147 and 148 of IPC: In this section, rioting and its punishment is defined. Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Section 120B of IPC: criminal conspiracy-If a group of people conspire to commit an offence punishable with death or imprisonment will be liable under this section.

If a mob committed murder, then this section will make all the persons who were part of the mob liable with the section of murder with this section.

Ø  Arguments in favour of framing of new law

There are views upholding the Supreme Court’s judgment about the necessity for the new law to fill the void in the existing criminal laws and jurisprudence as for example Section 223(a) of the Code of Criminal Procedure (CrPC), 1973, says, “persons accused of the same offence committed in the course same transaction can be tried together.” [12]But, this still doesn’t clarify how the perpetrators will be tried and the retribution thereof, thus, it falls far short of an adequate legal framework for prosecuting lynch mobs.

Special law for mob lynching though not essential but it cannot be said that it wouldn’t be a good thing to have a law. It is true that USA got rid of the problem of mob lynching without any special law but the underlying problem never got exterminated completely. The following are the reasons which shows that special law for lynching can work in India. At First, the hate crime laws are inadequate in India. Except for SC/ST Atrocities Act, there is no significant law which deals with any harm or violence committed against person by the virtue of its association to particular community. This becomes a serious problem when religion or outsider status is at the heart of contemporary lynching. Second, the role of police must be addressed; the police often stand and do nothing at the time of commission of this offence of mob lynching as happened in Hapur Lynching[13]. Thus, mob does not worry about the police and police has to face no consequences so they do not take any actions and the existing laws cannot do anything about it but the new law in mob lynching can deal with this problem. The third reason to have a new law to provide for fast tracking and monitoring of the lynching cases so that they do not get lost in trial court limbo like Mohammand Akhlaq Case.[14]Fourth, the new law can provide for specific and adequate punishment for the instigators and the sharing of material which can instigate mob violence as we are living in a time where lynching can be easily incited by the fake news or messages on Whatsapp and other social media platforms.[15]

MASUKA ( Manav Surakhsha Kanoon) , Protection from Lynching Act, 2017- an analysis

There is also a draft of new law by the name MASUKA (Manav Suraksha Kanoon) proposed by the National Campaign against Mob Lynching, founded by Tehseen Poonawalla, Shehla Rashid, Kanhaiya Kumar and Jignesh Mewani, was released at constitution club in New Delhi on 7^th july,2018 in the presence of  Prakash Ambedkar, grandson of BR Ambedkar , Sanjay Hegde, Professor Manoj Jha.  The drafting committee of the MASUKA, headed by senior Supreme Court lawyer Sanjay Hegde, includes Anas Tanwir, a lawyer , Sadar Musharraf, JNU student Najeeb Ahmed's sister, Anil Chamaria, a journalist and activist, Apoorvanand, a Delhi University professor, Sanam Wazir, campaigner at Amnesty International India, Nivedita Menon, a JNU professor, and other eminent activists from diverse backgrounds.[16]

This Act was tabled before Rajya Sabha on 29^th December, 2017. Let us now contemplate how far this Act will be efficacious.  The objective of this Act is to provide for effective protection of the Constitutional rights of vulnerable persons, to punish acts of lynching, to provide for designated courts for the expeditious trial of such offences, for rehabilitation of victims of lynching and their families and for matters connected therewith or incidental thereto.[17]

A plus point of having MASUKA is that at present there is no law specifically dealing with lynching as an offence. Further there are no concrete provisions for the compensation and rehabilitation of the aggrieved families and the speedy trial of such cases.  Another benefit will be that instead of tying various laws together to build up a case, all the facets of Mob violence can be addressed with this new draft. There is another problem with existing laws is that there is no provision to punish the police inaction which is the major factor for the successful execution of any lynching by the mob as the police officers present at the crime scene do not intervene until everything is done. The new law addresses this factor by making SHO responsible for the any lynching taking place in his area of jurisdiction subject to juridical probe within the prescribed time to see whether situation was truly out of his control. There are also witness protection provisions in the MASUKA so that there is no fear among them to speak up, their identities will be concealed.

However, there are still some problems with the bill, this proposed Act or bill for the first time defines lynching as ‘any act or series of acts of violence or aiding, abetting or attempting an act of violence, whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity or any other related grounds.’[18] This on being keenly observed reflects the usage of number of new terms which do not have any established legal meaning thus resulting in ambiguity which gives it the potential being easily misused. This definition or terms in it will be challenged constantly on its vagueness thus consequently resulting in delayed proceedings as there is no precedent to rely on. Further these ambiguities can be potentially misused to detain and create problems and difficulties for gatherings and assembly for lawful agendas. Identification of the accused or participants is always a difficult task and the new draft is no relief in this arena as most of the instigation happening on online encrypted platforms makes it difficult to pinpoint the person who instigated the said action. Thus, some procedural issues are still needed to be addressed even in this new draft to make it competent enough to be applied in place of existing laws in dealing with Mob Lynching.

WHAT THE GOVERNMENT HAS DONE SO FAR?

The Government has set up two high level committees in pursuance of this order of the Supreme Court, one of which is headed by Union Home Secretary Rajiv Gauba consisting of the Secretary, Department of Justice, Secretary, Department of Legal Affairs, Secretary, Legislative Department and Secretary, Social Justice and Empowerment as its members which will submit its recommendations in four weeks. The other committee or the Group of Ministers as constituted by the government, headed by Home Minister Rajnath Singh will consider the recommendations given by the high level committee. The Minister, External Affairs, Minister, Road Transport and Highways; Shipping, Water Resources, River Development and Ganga Rejuvenation, Minister, Law & Justice and Minister, Social Justice and Empowerment are the members of Group of Ministers who will submit their conclusions to the Prime Minister.[19]

The Ministry of Home Affairs has, through the letter addressed to Chief Secretaries, Director General of Police of all states and Union Territories, dated 23^rd July, 2018, has advised and directed the state governments and Union Territory administrations and their law enforcement agencies to implement and give effect to the guidelines of the Supreme court and send the comprehensive report of the action taken by them to be submitted to the ministry.[20]

The question no.865 directed to minister of Home Affairs in Rajya Sabha on lynching by mob due to fake rumours and fake news, where minister was asked to state data on incidents of lynching due to fake news, what steps has been taken so far to curtail social media operators to monitor and keep a check on rumours and fake news and whether government has issued any advisory, similar issues were asked about in Lok Sabha as well as question no. 1120[21]. The Minister of State in the Ministry of Home Affairs –Shri Hansraj Gangaram Ahir in his answer stated that the National Crime Records Bureau (NCRB) does not maintain specific data in this regard. It was further stated that advisories were issued by Ministry of Home Affairs to the states and UTs, on regular intervals to maintain law and order and ensure that any person who takes law in his/her hand is punished promptly for his/her act and should be dealt firmly. An advisory issued on 4^th August, 2018 emphasised that adequate measures must be adopted by the state governments and UTs to track down any trends which have potential of spreading violence and ensure that no violence is instigated by the unverified allegations circulating on social media should be committed. Another advisory was directed dated 9^th September, 2018 to the States/ UTs advising them to appropriate action to prevent untoward incidents in the country in the name of protection of cow.[22]

CONCLUSION

It is established that Lynch killings are the major menace which needs to be curtailed but there is no need for separate legislation to deal with it. Certain beneficial and productive provisions of MASUKA can be incorporated as amendments in the existing laws; this will save the legislative time and resources of the government. Also there is an urgent need to improve the enforcement machinery because it is not the lack of appropriate law but its enforcement which needs to be addressed to curtail this barbarous act of mob lynching. A better-equipped, more intelligent enforcement mechanism working within the existing legislative and judicial system will be far more valuable and effective in addressing concerns of lynching. Thus, legislation on mob lynching is not a necessity but it will be good to have one with stringent provisions for the police officials who fail to act on time and do not proceed or take any measures to manage the crowd and remain mere spectator of mob lynching as there are no concrete provisions to hold them accountable.

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[1] G. Sampath, It’s time to enact an anti-lynching law , The Hindu,,(August 4, 2017), available at http://www.thehindu.com/opinion/lead/its-time-to-enact-an-anti-lynching-law/article19421424.ece (Last visited on December 20, 2018)

[2] Tehseen S. Poonawalla v. Union of India and others, 2018 SCC Online SC 400, decided on 19.04.2018

[3]ibid

[4] supra note 1

[5] Jaitley rules out separate law to deal with mob lynching, https://www.thehindubusinessline.com/news/national/jaitley-rules-out-separate-law-to-deal-with-mob-lynching/article9781751.ece, (published on July 20, 2017)

[6]Raghav Ohri,  Mob lynching: Centre may amend existing law, https://economictimes.indiatimes.com/news/politics-and-nation/mob-lynching-centre-may-amend-existing-laws/articleshow/65300304.cms, (Last updated: Aug 07, 2018, 07.23 AM IST)

[7] James H. Chadbourn, LYNCHING AND THE LAW, American Bar Association Journal, Vol. 20, No. 2 (FEBRUARY, 1934), pp. 71-76, https://www.jstor.org/stable/25710303?seq=5#metadata_info_tab_contents

[8] Vijayta Lalwani, India doesn’t need a new law to curb lynchings, enforcing existing laws is enough, say legal experts,  https://scroll.in/article/887295/india-doesnt-need-a-new-law-to-curb-lynchings-enforcing-existing-laws-is-enough-say-legal-experts, (Last updated: October 9th 2018)

[9] Supra note 1

[10] Jayachandran, An anti-lynching law is the wrong solution, https://www.livemint.com/Opinion/W8A6q4jQxTar41crOOpyXL/An-antilynching-law-is-the-wrong-solution.html, (Last published: Jul 22 2018. 09 35 PM IST)

[11] S. 302, S.304, S.307, S.323, S. 325, S.34, S.141, S.149, S.147, S.148 , S.120B of Indian Penal Code, 1860

[12] Section 223(a) of the Code of Criminal Procedure (CrPC), 1973

[13] Legal Correspondent, Probe Hapur lynching: Supreme Court, The Hindu https://www.thehindu.com/news/national/probe-hapur-lynching-supreme-court/article24682309.ece AUGUST 13, 2018 23:12 IST

[14] staff reporter, Festivals have become a curse for us: lynching victim’s kin, The Hindu, https://www.thehindu.com/news/cities/Delhi/festivals-have-become-a-curse-for-us-lynching-victims-kin/article24748182.ece, AUGUST 22, 2018 01:46 IST

[15] Vakasha Sachdev, Do We Really Need a Specific Law on Mob Lynchings? Yes and No, https://www.thequint.com/videos/q-rant/mob-lynching-law-supreme-court-needed, (last updated: 25.07.18)

[16] Mausami Singh, Civil society moots law to stop mob lynching: MASUKA, https://www.indiatoday.in/india/delhi/story/national-campaign-against-mob-lynching-masuka-manav-suraksha-kanoon-1023046-2017-07-07, (Last updated July 7, 2017 19:00 IST)

[17] Objective, The Protection From Lynching  Bill, 2017, (As introduced in the Rajya Sabha on the  29^th December, 2017), http://164.100.24.219/BillsTexts/RSBillTexts/AsIntroduced/lynch-E-291217.pdf

[18] Section 2(c) of The Protection From Lynching  Bill, 2017.

[19] Press Information Bureau  Government of India Ministry of Home Affairs , Government set up high level committee chaired by Union Home Secretary to check mob lynching,

23-July-2018 18:04 IST, http://pib.nic.in/newsite/PrintRelease.aspx?relid=180891

[20] Government of India, Ministry of Home Affairs(Internal Security I Division), ‘letter relating to the subject: incidents of Violence and Lynching by mobs’,dated: 23^rd July,2018, https://mha.gov.in/sites/default/files/lynching_240720181010%20.pdf

[21] Government of India, Ministry of Home Affairs, Lok Sabha, Unstarred Question No.1120 for 24.07.2018 related to  ‘Lynching incidents’, https://mha.gov.in/MHA1/Par2017/pdfs/par2018-pdfs/ls-24072018-English/1120.pdf

[22] Government of India, Ministry of Home Affairs, Rajya Sabha, Unstarred Question No.865 for 25.07.2018,related to ‘Lynching by mob due to rumours and fake news’, https://mha.gov.in/MHA1/Par2017/pdfs/par2018-pdfs/rs-25072018-English/865.pdf.