By Sanjay Raman Sinha
A rampaging mob killing a hapless man is not the best of sights; but it is a living reality in India. India has a history of extra-judicial killings by men in police uniform, alternatively termed as “encounter killings”. But taking of law in hands by the mentally fevered group of persons and torturing and slaughtering of individuals in full public view is downright barbaric.
This vigilantism cannot be explained away by any logic. Vigilante is defined in the Cambridge English Dictionary as a person who tries in an unofficial way to prevent crime, or to catch and punish someone who has committed a crime.
In December 2021, the Ministry of Home Affairs had informed the Lok Sabha that the National Crime Records Bureau (NCRB) collected data on mob lynching, hate crimes and cow vigilantism in 2017 but it was discontinued as the data was unreliable as these crimes are not defined. According to IndiaSpend, which based its report on the content analysis of news reports, “In the first six months of 2017, 20 cow-terror attacks were reported—more than 75 per cent of the 2016 figure. Between 2010 and 2017, 97 per cent of all lynching attacks centred on bovine issues.”
Since 2012, the country has seen around 133 cases of mob lynching and around 50 people lost their lives. Fifty seven per cent of the victims were Muslims, and 9 per cent belonged to the Dalit community. There were 23 incidents of mob lynching in the country in 2020; whereas in 2019 there were 107 incidents of mob lynching. These figures are terrifying and a question mark on the law and order situation of the country. At present, there is no central codified law against lynching in India, but at least three states have promulgated anti-lynching laws in their region. These are Manipur, Rajasthan and West Bengal. Jharkhand has passed the law but the governor is yet to give his assent.
The Supreme Court had shown strictness on mob lynching. During the hearing of the Tehseen Poonawalla case in 2018, the Court had even issued guidelines for the central government and state governments to stop incidents of mob lynching. The Court had called mob lynching as “mobocracy” and emphasized that it is the duty of the government to protect the life of every citizen, and without law, life cannot be snatched away. However, since then, the issue is on the backburner and the response of states on the demand of status report on guidelines implementation has been lukewarm.
Tehseen Poonawala, a citizen rights activist, on whose petition, the Supreme Court had issued anti-lynching guidelines said:
“It is a historic fact that mob lynching happens in countries and areas where there is an economic downturn. As GDP slumps and unemployment rises, mobs go on the rampage and mob lynching occurs. This has happened in Europe, in the US and now it is happening in India. The second disturbing fact is that young people of the age group 25 to 45 are using modern technology to disseminate videos of the barbaric act of mob lynching. Thirdly, I would like to point out that Gregory Stanton, the founder and director of Genocide Watch, has said during a US congressional briefing that there were early ‘signs and processes’ of genocide in India. He had predicted the Rwanda massacre of 1994. I fear this because despite my intervention in Supreme Court, Parliament has failed to make a specific national law on mob lynching. Some states have passed laws against mob lynching but Parliament is yet to frame the law. This has happened in the United States also where the Senate blocked the anti mob lynching law for more than hundred years, and when it finally passed it in 2005, it apologized to the nation.”
Justice Satish Chandra, former judge of the Allahabad High Court, explained the background matrix of lynching and the provisions of the recent laws on the subject. He said:
“Mob lynching is public killing of a person by a mob. There is no individual identification. It is difficult to identify intention to murder, so Section 302 can’t be applied. It is not necessary that the person is murdered. He can be mutilated, tortured, greviously wounded or burnt. Now, reasons for mob lynching varies. Child snatching, witchcraft, animal theft, cow smuggling, disrespect to religious text and many such acts give rise to mob lynching. The mob takes the law in its hand. Social media messages and rumours also fan mob violence and instigate people to mob lynching.”
In the 2018 Tehseen Poonawala case, the Supreme Court had suggested some preventive measures to curb mob violence. It included curb on hate speech, monitoring of social media for rumours and positive publicity to neutralise enmity feelings. The apex court had also suggested some remedial measures like immediate registration of FIR, appointment of nodal officers for the case, effective processing through fast track courts, victim compensation scheme and free legal aid. In regard to punitive measures, departmental action should be taken against officers who do not comply with the above measures as it will be seen as a case of misconduct and the action to be taken should reach a conclusion within six months. The Court gave a recommendation to Parliament to constitute a separate offence for lynching with adequate punishment.
Further to the Supreme Court directive, some states like Manipur, West Bengal and Rajasthan formed and promulgated anti mob lynching laws. The Jharkhand bill has been passed by the assembly but the governor is yet to give his assent. The bill states that in case of death of the victim, the convict shall be punished with the rigorous imprisonment for life and with fine which shall not be less than Rs 25 lakh. However the bill is yet to become a law. Jharkhand is the most affected state in lynching. Around 22 people have been lynched in the state over the past four years.
Rajendra Krishna, president of the Jharkhand Bar Council, lauded the initiative of the state government. He said: “The bill is timely and relevant. In Jharkhand, quite a few cases of mob lynchings have occurred. So a law was sorely needed to curb deviant mob behaviour. In fact, the Supreme Court had also underlined the need for a law.” He clarified:
“Jharkhand’s anti mob lynching bill begins by stating that the aim is to provide safety to weak persons. Now we have to define who is a weak person. Secondly, the police or investigating officer should be liable for legal action if he doesn’t discharge his duty faithfully. Thirdly, the maximum punishment is prescribed as life imprisonment. Whereas the Supreme Court in its guidelines has said that the maximum punishment should be what is prescribed in IPC, which is capital punishment. If it doesn’t happen then the convict will take shelter in the law for respite.”
Ved Bhushan, retired IPS, held that the existing provisions of the IPC and CrPC aren’t enough to either prevent lynching or secure conviction for such crimes that target marginalised groups. A specific law at the state level is urgently needed to control the horrendous crime. The charge sheeting rate is around 77 per cent. The rate of conviction is barely 16 per cent due to many factors like witnesses turning hostile, belated prosecution, etc. The ground realities of criminal investigation are worrisome.
He said: “Till now, the mob lynching crime is undefined. The incidents are booked and tried under the existing provisions of the IPC and CrPC. After the promulgation of the ST/SC Act, atrocities against the depressed castes have decreased. In the Bulandshahr mob lynching case, policeman Subodh was lynched by a crowd. His widow fought the case alone till the Supreme Court. Neither the police department nor the political leaders helped her. Finally the Supreme Court instructed the Uttar Pradesh government to arrest the accused.
“I will give another example. A case was registered against the late Prime Minister Vajpayeeji at the Parliament police station. Today, the case is still standing after 51 years. It is an example of delay in investigation. How can justice be delivered? It is the demand of time that local and special laws be formulated at the centre and state levels, and probe should be done by a police officer not below the rank of DSP or ACP. The burden of proof should be on the accused to show that he was not a part of the mob. As far as Section 149 (unlawful assembly) is concerned, the police has to prove that the mob was illegal. To prove this is difficult.
“In the Palghar case, a mob of over 100 people lynched the sadhus. There was no video to substantiate the crime. In this case, it becomes difficult for the police to show culpability of the accused. In a mob crime, it is difficult to pin individual responsibility on the accused. Also earlier, the probe commissions’ members used to go to the incident location and investigate. That made a lot of difference as compared to doing a trial on the basis of police documents. In the ST/SC Act, the investigating officer is liable to criminal legal action in case of dereliction of duty in probe. This should be included in the anti mob lynching act. Further-more, as evident from the Jharkhand trial, the investigating officer should be competent and should have a fair understanding of the law and its enactment.”
The promulgation of cattle protection laws has coincided with a uptick in cow vigilante violence. From 2016, until the end of 2020, over 50 cases of mob lynching or violence have been reported. Tehseen said: “Cattle protection laws have made a section of populace and cattle traders the target of mob lynching. Many state governments have encouraged it. BJP government is conniving in such matters. There is no definition of mob lynching in the IPC or CrPC. After my case at the Supreme Court, I met the home secretary and other officials but they didn’t give any assurance. If any state passes an anti mob lynching law, the BJP government at the centre doesn’t allow the governor to give assent to the bill. In this way, vigilantism is encouraged. Our ‘Manav Suraksha Kanoon’ (‘MaSuKa’) was hailed by the Supreme Court as a model law, the Court said that anti lynching laws can be modelled on the ‘MaSuKa’. But nothing has happened. We want that like Lokpal and ST/SC Act, a central law be enacted on lynching. Parliament should pass the law and the states should follow suit and enable it in their respective areas.
“Taking of the Jharkhand bill, it makes mob lynching a non-bailable offence, makes probe time bound, provides for life imprisonment, aims to put in place a top-to-bottom mechanism, with an inspector general-rank police officer to be appointed as a nodal officer, with clearly laid-out powers and duties, and senior inspector to investigate the crime reporting to him. These are the exact provisions which we had proposed in our ‘MaSuKa’ model law. But the bill is yet be given assent by the governor.’’
However, better investigation builds a strong case for prosecution to indict convicts. The 2017 Alimuddin Ansari case of Ramgarh, Jharkhand is case in the point. On June, 29, 2017, Alimuddin was dragged out of his van, which was set on fire and killed by the mob. The charge sheet was filed against accused and the case was fought successfully by the prosecution at the Sessions Court of Ramgarh. Eleven accused were convicted in a record time.
Sushil Kumar Shukla, additional public prosecutor in the Alimuddin case, related the legal battle: He said:
“Police did a good job in the Alimuddin Ansari lynching case. An SIT was formed which was headed by a lady police sub inspector. Evidence was collected very scientifically. The lynching video was received by SHO, Ramgarh Thana on his mobile phone. A CD was made of this video and sent to Chandigarh Forensic Laboratory for an impartial assessment. The report from lab said that the video was unedited. Clothes of accused were gathered on the basis of the video and statements of witnesses. The clothes were placed before the court. The video was played before the judge and the accused were identified. CDR of phone calls were analysed and it was found that the accused were nearby the spot of incident. The witness of the demesne was exposed. Prosecution presented 19 witness, 59 exhibits were placed on record, three accused had criminal records. Eleven accused were convicted and sentenced to life imprisonment. The trial, conviction and sentencing were completed in a record 10 months.”
The lynching had taken place on a day Prime Minister Narendra Modi said in Ahmedabad that killing people in the name of “Gaul Bhakti” was unacceptable and that nobody has the right to take the law into their own hands.
Justice Chandra argued for uniformity in the anti-lynching legislations. He said:
“Since law and order is a state subject, the centre should make a model law and the states should adopt it. Right now, Manipur, Rajasthan and West Bengal have anti lynching laws and the Jaborandi law is yet to be given assent. But, there is vast variations in provisions in the laws of various states. These should be put on a uniform scale.”
All said, lynching is an unpardonable crime and has emerged as a premeditated offense. The cocktail of religion and violence has assumed frankensteinian proportions. The Ramgarh court verdict had very rightly stated:
“Religious fanatics really do not belong to any religion. They are no better than terrorists who kill innocent people for no rhyme or reason in a society which as noted above is governed by the Rule.”
Clearly, nothing short of a strong political will and institutional changes in the law and criminal investigation modes can curb the mob lynching acts.