“We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day.” These were the words of the Supreme Court in the case Tehseen S. Poonawalla v. Union of India on 17 July, 2018.1
INTRODUCTION
Mob lynching is when a group of violent people attack person(s) with the ideology of punishing them for their acts which are contradictory to the belief and value systems of the mob irrespective of the fact that those acts may or may not be punishable by the law. These acts are on the basis of unverified claims, rumors, suspicion or misinformation. For instance, on 16th April 2020 in Palghar district of Maharashtra where two Hindu monks and their driver were lynched and killed by a mob.2 It is agonizing to know that this incident was fueled by rumors on WhatsApp of thieves operating in the area and the villagers wrongly suspected the victims as thieves. This all happened in the midst of a nationwide lockdown because of Covid-19. These people not only violated social distancing norms, but also committed a serious criminal offence.
Law is the ultimate sovereign and no individual in the name of protecting the law can become the guardian of the law and take law in their own hands. Reaffirmed by the S.C in the case of Krishnamoorthy v. Sivakumar and others3, “the law, the mightiest sovereign in a civilized society”.
Mob lynching is a heinous offence which not only inflicts bodily harm and kills innocent people but also de-stabilizes the walls of justice, equality, liberty and fraternity. It is in grave violation of our fundamental rights including Art 14, 19 and 21 (golden triangle) and Art 15 of the constitution.4 The Apex Court certifies this view, “Lynching is an affront to the rule of law and to the exalted values of the Constitution itself.”5
These instances where an unruly mob decides to punish the accused based on their discretion and deny following the due process of law cannot become the new norm of the society. It is the foremost duty of the State to make sure that all of its citizens reside together in harmony irrespective of their caste, creed, race or religion. As stated in Nandini Sundar and others v. State of Chhattisgarh6, it is the duty of the state to promote fraternity amongst its citizens so that dignity and rights of each citizen is promoted and protected. India is a diverse country consisting of different cultures, religions and traditions. Therefore, it is the sacrosanct duty of the state to protect the members of the minorities from being targeted by the violent mobs. The Supreme Court held in the case of Mohd. Haroon and others v. Union of India and another7 that State Administration and the intelligence agencies must make necessary provisions to prevent re-occurrence of communal violence in any part of the country.
INSTANCES OF MOB-LYNCHING
The graph of mob lynching is on a rise, leading to deaths of hundreds of people. The media is flooded with incidents of mob lynching from various parts of India; be it a man being lynched by a mob believing him to be a child abductor in West Bengal8, or killing of a person after being accused of slaughtering a cow in the state of Jharkhand9, or three men killed for allegedly stealing cattle in Bihar.10 Various assaults have been filmed and victims have been hanged on trees to create terror in the minds of the people. This is all just the tip of the iceberg, the increasing terror with time has left crimes being unreported. Mob lynching in India has gained limelight with the killing of Akhlaq Khan on 28th September 2015 in the district of Dadri, Uttar Pradesh. According to the Uttar Pradesh police, during the investigation BJP leader’s son admitted that he had asked the Hindu priest to make the announcement inciting the Hindu villagers to gather outside Akhlaq’s residence.11 The villagers accused him of stealing and slaughtering a calf on the festival of Eid. Akhlaq and his son Danish were beaten with rods and bricks by a violent mob. As a result of the violence, the Khan family lost its bread-winner and Danish went through a brain surgery. Nine months later, the police filed an FIR against the Khan family for cow slaughter. The family denied the charge and the Allahabad High court put a stay on the arrest of all family members except Jan (Akhlaq’s brother). Till 2018, no charges were framed by the court against the accused of mob lynching, which delayed the procedure of recording statements of witnesses and examination of evidence.12 In the meantime, all accused got bail because of having close connections with the ruling party. Till date, the family awaits justice. This case highlights the inefficiency of the police, political influences, lack of education and hate speeches by religious leaders which all form the major causes of mob lynching.
IS LEGISLATIVE REFORM A SOLUTION?
Some idealists believe that law being the ultimate sovereign, legislative reforms will be an apt fix to curb this menace. A reform will become a hasty remedy which will practically not help in ascertaining and eradicating the root cause of such killings. It will stay as a theoretical reform which only looks good but serves no purpose. Considering the role of the police, they play a dominant role in encouraging the crime by not initiating enquiries, by being the puppet of wealthy politicians, industrialists, religious influencers and being reluctant to take up responsibility for these crimes. The political interference adds fuel to the fire. They take part in the legislature by making laws in the parliament as well as control the police and other departments of the executive. So, by keeping a tap on both, the legislature and the executive they are violating the doctrine of Separation of Power. As per the Status of the Policing report 2019 (hereafter referred as ‘Policing Report’)13, Table 4.9: 28 % of the police personnel feel, “Pressure from the politicians is the biggest hindrance in crime investigation.” This survey was done in Uttarakhand, Jharkhand, Maharashtra and Bihar. So, a law reform will not bring any change in the efficiency of the police and other departments of the executive. The significance of the duty of the police is expounded in the judgment of Prakash Singh & Ors v. Union of India and Ors14 on 22 September, 2006, “The commitment, devotion and accountability of the police has to be only to the Rule of Law. The supervision and control have to be such that it ensures that the police serve the people without any regard, whatsoever, to the status and position of any person while investigating a crime or taking preventive measures.”
Considering the communal aspect of the crime, the psychology of the police is also to be considered. According to the Policing Report, Table 6.12: One in two police personnel feel that Muslims are likely to be “naturally prone” towards committing crimes. As per Chapter 6 of the Policing Report, 35 % of police personnel think it is natural for a mob to punish the “culprit” in cases of cow slaughter. These statistics are eye-openers for the legal fraternity. This attitude and behavior from the law enforcement officers needs reconstruction where a legislative reform would do no good. The belief systems will not change with change of words in the books of law. There is a need for community sensitization and strengthening of the society by instilling an attitude of compassion, empathy and fraternity among the citizens.
People feel that there is no codified law which specifically declares mob lynching as an offence, which is why delivering justice for the judiciary becomes strenuous. But, we have enough in the statute to prosecute criminals for committing such crimes. There are adequate sections in the Indian Penal Code15 which penalizes the crimes committed by a mob which are stated hereafter. The accused can be charged for murder u/s 302, culpable homicide u/s 304, voluntarily causing hurt u/s 323 or voluntarily causing grievous hurt u/s 325. If the victim survives the attack, the offender can be prosecuted u/s 307 for an attempt to murder. These are recourses to try these criminals individually. Furthermore, the IPC also provides for a mechanism to charge the whole mob jointly. As per section 141, an assembly of 5 or more persons who have a common object of breaking the law is to be treated as an unlawful assembly. Every member of an unlawful assembly is held liable for any criminal act done in furtherance of a common object u/s 149. Moreover, when an act is done by several persons in furtherance of a common intention of all, each of such person is liable for the act as if he/she has done it alone u/s 34. Lastly, mob lynches can be brought under criminal conspiracy u/s 120 A and punished u/s 120 B and can also be punished for rioting u/s 147 and 148. Section 223 (a) of the Criminal Procedure Code16 prosecutes two or more persons accused of same offence committed in the course of same transaction. These sections put together clearly penalize mob lynching.
Vrinda Grover, a senior lawyer who is representing Samiudin, the survivor of the Hapur lynching17 has expressed that the investigation, prosecution and punishment towards people who commit mob lynching can be conducted with the current laws. She cited various offences in the statute which can be used for the same. She expressed her concerns for the lack of implementation of the law by saying, “The problem is not the absence of the law but how the law is employed.”18
The Supreme Court has played its’ cards properly by laying down the guidelines19 which consist of preventive, remedial and punitive measures to prevent mob lynching and also recommending a special law for the same. It laid down the requirements and duties on the part of state governments and the police officials to curb mob lynching and also included victim compensation scheme, deterrent punishments, fast- track trials and disciplinary action against the officials who fail to perform their duty. These guidelines can be used as a point of reference and the executive can act accordingly. Making a special law for the same is not the need of the hour. Adding to that, in the words of the S.C,” We have said so as a special law in this field would instill a sense of fear for law amongst the people who involve themselves in such kinds of activities.”20 The objective for having a separate statute is to create fear in the minds of people but this fear will only see the light of the day if the executive is hitting the bull’s eye.
The three machineries of the state - legislature, executive and judiciary have to work in tandem. Legislation is only propitious if the execution and judiciary discharge their duties properly. We have so many apt laws for protection of women from crimes like rape, sexual harassment, domestic violence etc. but these special laws don’t stop criminals from committing heinous crimes. Perpetrators do not fear the law; they enjoy the vacuum in the execution. In the same way, mob lynching needs efficacious execution and not a new legislation.
CONCLUSION
All in all, a new law will not suffice the emptiness of the execution. There is no point in duplicating offenses by amendments or creating a new statute, it creates ambiguity and chaos which delays justice. We need the executive to step up in order to punish law breakers whose acts endanger the fundamental rights of our citizens.
“If India makes violence her creed, and I have survived, I would not care to live in India.”
-Mahatma Gandhi
Citations.
Tehseen S. Poonawalla v. Union of India, AIR 2018 SC 5538 (India).
Gautam s. Mengle, 3 lynched in Palghar after rumours over mistaken identity, The Hindu (Apr. 18, 2020, 01:15 IST), https://www.thehindu.com/news/cities/mumbai/3-lynched-in-palghar-after-rumours-over-mistaken-identity/article31371237.ece.
Krishnamoorthy vs. Sivakumar and Ors., AIR 2015 SC 1921 (India).
INDIAN CONST. art 14, art 19 art 21 and art 15.
Tehseen S. Poonawalla v. Union of India, AIR 2018 SC 5538 (India).
Nandini Sundar and Ors. vs. State Of Chattisgarh (15.11.2016 - SC Order) : MANU/SCOR/40696/2016 (India).
Mohd. Haroon and Ors. v. Union of India (UOI) and Ors, (2013) 9 SCC 328 (India).
IANS, Bengal mob attacks man on suspicion of kidnapping children, India Tv, (July 28, 2019 22:35 IST), https://www.indiatvnews.com/news/india-bengal-mob-attacks-man-suspicion-kidnapping-children-538753.
Abhishek Angad, Jharkhand again: A man is lynched, two injured over suspicion of cow slaughter, The Indian EXPRESS, (Sept. 23, 2019 6:52:31 Am IST), https://indianexpress.com/article/india/jharkhand-again-a-man-is-lynched-two-injured-over-suspicion-of-cow-slaughter-6019451/.
Saran, Bihar lynching: Locals beat three men to death over suspicion of cattle theft, India Today, (July 19, 2019 14:36 IST), https://www.indiatoday.in/crime/story/bihar-lynching-locals-beat-three-men-to-death-over-suspicion-of-cattle-theft-1571196-2019-07-19.
Azaan Javaid, Arrested BJP leader's son told priest to announce Mohamad Akhlaq had slaughtered a cow: Dadri police, DNA, (Oct. 4, 2015, 07:10 AM IST), https://www.dnaindia.com/india/report-arrested-bjp-leader-s-son-told-priest-to-announce-mohamad-akhlaq-had-slaughtered-a-cow-dadri-police-2131404.
Aman Sharma, After 43 court hearings, Akhlaq's family banks on Supreme Court order for justice, The Economics Times, ( Aug. 23, 2018, 09:08 AM IST), https://economictimes.indiatimes.com/news/politics-and-nation/after-43-court-hearings-akhlaqs-family-banks-on-supreme-court-order-for-justice/articleshow/65509607.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
Status of Policing in India Report 2019, Common Cause & Lokniti – Centre for the Study Developing Societies (CSDS), https://www.commoncause.in/uploadimage/page/Status_of_Policing_in_India_Report_2019_by_Common_Cause_and_CSDS.pdf.
Prakash Singh and Ors. V. Union of India (UOI) and Ors, (2006) 8 SCC 1 (India).
The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.
Criminal Procedure Code, 1973, No. 2, Acts of Parliament, 1974.
Abhishek Dey, Elderly Muslim man who survived Hapur lynching recounts the terror, seeks a fair investigation, Scroll.in, (July 15, 2018, 07:30 Am), https://scroll.in/article/886563/elderly-muslim-man-who-survived-hapur-lynching-recounts-the-terror-seeks-a-fair-investigation.
Vijayta Lalwani, India doesn’t need a new law to curb lynchings, enforcing existing laws is enough, say legal experts, Scroll.in, (July 22, 2018, 06:30 Am), https://scroll.in/article/887295/india-doesnt-need-a-new-law-to-curb-lynchings-enforcing-existing-laws-is-enough-say-legal-experts.
Tehseen S. Poonawalla v. Union of India, AIR 2018 SC 5538 (India).
Tehseen S. Poonawalla v. Union of India, AIR 2018 SC 5538 (India).
About Author
Mudit Shah & Labdhi Mehta
Fourth year BLS
Pravin Gandhi College of Law,
Mumbai University.
