ON this day last year, the Supreme Court of India inTehseen S. Poonawalla vs Union Of India described “lynching” as an affront to the rule of law and to the exalted values of the Constitution itself. The court termed it an extrajudicial attempt under the guise of the protection of the law –  a situation that had to be nipped in the bud “lest it would lead to the rise of anarchy and lawlessness that would plague and corrode the nation like an epidemic”.

The Oxford English dictionary defines lynching as an act of killing done by a mob without any legal authority or process involved. In simple term, lynching is defined as a group of people killing a person for an alleged offence without a legal trial.

In India, lynching or targeted violence has occurred mainly on the false suspicion that a person was transporting cattle for slaughter or on the pretext that they were consuming beef. By all account the person has been targeted on the basis of their apparel and appearance –  he was either wearing a kurta or skullcap and had a beard.

The apex court had in its judgment referred to Mark Twain to point out that lynching, at one point of time, was so rampant in the United States that the American writer had remarked in his inimitable style that the country had become “the United States of Lyncherdom”. That reference to Mark Twain carried a dire warning.

“Lynching and mob violence are creeping threats that may gradually take the shape of a Typhon-like monster as evidenced in the wake of the rising wave of incidents of recurring patterns by frenzied mobs across the country instigated by intolerance and misinformed by circulation of fake news and false stories,” the then Chief Justice of India, Dipak Misra, who authored the Poonawallajudgment for himself and Justices A M Khanwalker and D Y Chandrachud said.

 

The Supreme Court steps in

 

Mindful of the destructive consequences of this unchecked, targeted violence, the apex court then went on to issue a set of guidelines to the Central Government, the state governments, and union territories (UTs) – guidelines that were like preventive, remedial and punitive measures to curb the widespread incidents of mob lynching in the country.

From compulsory registration of First Information Reports (FIR), the appointment of a senior police officer as a nodal officer in each district for taking measures to prevent mob violence and lynching, the framing of a victim compensation scheme, a time-bound trial in the cases of mob lynching to departmental action against police or district officials who fail to act against the perpetrators; these were some of the guidelines among that others that were issued by the apex court.

More importantly, the Supreme Court also recommended that Parliament create a separate offence for lynching and provide adequate punishment for the same. The reason for such a recommendation in the court’s own words was that a special statute would instil a sense of fear for law among the people involved in violence of this nature.

Has the apex court’s intervention curbed the incidents of mob lynching? Have law enforcement agencies taken sincere steps to implement the directions of the apex court not only in letter but also in spirit? And what exactly has the Central Government done to bring in special legislation to govern mob lynching.

 

Constitution of a high-level committee

 

The Central Government on July 23, 2018, constituted a high-level committee headed by the Union Home Secretary to suggest ways and means and a legal framework to effectively deal with incidents of mob lynching. The recommendation of the committee was to be considered by the Group of Ministers (GoM) headed by the Union Home Minister which in turn would make a recommendation to the Prime Minister. This decision had come a week after the Supreme Court recommended that Parliament enact a special law to deal with incidents of lynching.

According to media reports, the high-level committee chaired by the Union Home Secretary submitted its report to the GoM sometime around August 29, 2018. The details of the report have not been made public. The panel had reportedly explored the possibility of treating lynchings as a separate offence under the Indian Penal Code (IPC) or making a separate law for the same.

It has been almost a year since the high-level committee was formed. Mob lynching continues to take its toll, though the report is yet to see the light of day.

 

Failure of states to curb mob-violence

 

The State has a positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race, caste, class or religion. But lynchings continue unabated; state governments have failed miserably in preventing these grotesque incidents. Mere paper compliance with the apex court’s guidelines will not make any difference unless state governments adopt a zero-tolerance policy on lynching.

The latest incident involving 24-year-old Tabrez Ansari in Jharkhand attacked and brutally beaten to death by a mob while being made to chant Jai Sri Ram and Jai Hanuman, is a sordid reminder that lynchings have continued with impunity. The motive is communal, with several such recent incidents involving members of the Muslim community being violently forced to chant ‘Jai Sri Ram’ and ‘Jai Hanuman’coming to light.

 

Emboldening of perpetrators by political leaders

 

Akhlaq’s violent death in Dadri and its justification by the RSS mouthpiece Panchjanya, the garlanding by Union minister Jayant Sinha of eight men convicted of lynching in Ramgarh, Jharkhand at his residence were just some of the examples of open support that the perpetrators were getting from the those in power.

Poonawalla held out a mirror to these lynch-mob supporters and warned of what could happen to our social fabric if the government continued to turn a blind eye to this rising wave of targeted violence.

While it is true that Prime Minister Narendra Modi has on occasion criticized these so-called ‘Gau Rakshaks’, the message has perhaps not been strong enough. For, a day after a villager- Rakbar Khan was lynched by a mob in Alwar in Rajasthan, BJP MLA Raja Singh said lynchings would continue till cow slaughter was banned in the country. In Uttar Pradesh after a police inspector was killed by a rampaging mob, a BJP MLA argued that the policeman had shot himself and the mob had no role to play.

Unfortunately, there have been some incidents of lynching in non-BJP ruled states as well and these too have gone unpunished.

 

No official data on lynching

 

Despite the apex court’s warning that lynchings were become a sweeping phenomenon with a far-reaching impact, the Central Government informed the Lok Sabha on June 25, 2019, and July 5, 2019 that the National Crime Records Bureau (NCRB) did not maintain specific data with respect to these targeted incidents of violence in the country.

Data collected by website fact-checker show that 131 incidents of cow-related violence have taken place in the country since 2012. A total of 47 people have died. Close to 180 people were victims of major assaults, and 109 suffered minor injuries. Of them 57% victims are from the Muslim community alone. A total of 77 incidents took place in BJP ruled states alone. From 2018 to 2019 alone, a total of 39 incidents of cow-related violence have been reported, in which  14 people have died.

 

NHRC’s dismal record – where is the sense of urgency?

 

THE National Human Rights Commission (NHRC), in response to an RTI application, has revealed that data on complaints relating to lynching have not been categorized, because there is no incident code to slot them! However, relying on memory within the commission, the NHRC recalled that it had taken suo motu cognizance of 5 cases of lynching and registered complaints in 12 cases. Only in 1 case, did the NHRC order the state government to provide compensation to the victim. Not once has the NHRC reprimanded a state government for their failure to prevent incidents of mob lynching.

This data shared by the NHRC shows its lackadaisical approach in monitoring cases of mob lynching, despite Poonawalla. In a majority of cases, it has simply filed closure reports after obtaining a report from the concerned state government. The NHRC must display a greater sense of urgency by being far more proactive in ensuring justice to the victims of mob violence. In doing so, it will only be discharging its statutory mandate.

 

UP Law Commission recommends a separate law

 

In a report submitted to the Uttar Pradesh Chief Minister Yogi Adityanath that also contains the draft Uttar Pradesh Combating of Mob Lynching Bill, 2019, the chairperson of Uttar Pradesh Law Commission Justice Aditya Nath Mittal (Retd.) has stressed the urgent need to take strict action against the so-called ‘Gau Rakshak’.

The commission’s draft law has recommended stringent punishment:

  • Imprisonment up to 7 years and fine up to Rs 1 lakh if the victim is injured.
  • Imprisonment up to 10 years and fine up to Rs 3 lakh if the victim suffers serious injuries.
  • Rigorous imprisonment for life and a fine up to Rs 5 lakh if the victim dies.
  • Those involved in the conspiracy, abetment be punished like those actually involved in lynching
  • In case of dereliction of duty by a police officer or district magistrate, imprisonment of one year, which may be extended to three years and fine up to Rs 5000.
  • Imprisonment of six months for contributing or enforcing a hostile environment.

The draft bill defines “lynching”, “mob”, “victim” and “offensive material”. It also defines the term “hostile environment” created against the victim or family, including the boycott of trade, public humiliation, deprivation of fundamental rights and the forced abandonment of their homes.

The UP Law Commission’s report is an acknowledgement that mob lynching is indeed becoming an epidemic, or at least that it is so widespread that it must be dealt with by a separate law because, as it says, the current law contained in the Indian Penal Code in Section 302 (Murder), 307 (Attempt to Murder), 323 (Causing voluntary hurt), 147 (Rioting), 148 (Rioting, armed with deadly weapon) and 149 (Unlawful Assembly) is not sufficient to meet the incidents of mob lynching.

 

Conclusion

 

The Supreme Court has already done what it could to caution the nation and suggest a framework to urgently attack this ugly Typhon-like monster that is gnawing away at our social fabric. The onus is now on the other pillars of our all-inclusive democracy, the political leadership and its rank and file to not just understand that mob lynching is taking on the characteristics of an epidemic, but that it needs urgent, immediate action before it swallows up our nation.

The Prime Minister needs to walk the talk. He must ensure that his GoM expedites the process of formulating a legal framework to deal with lynching. And his party leaders must refrain from overt and covert support of the accused.

 

Ahmar Afaq teaches at Symbiosis Law School, Hyderabad

Paras Nath Singh assists Senior Advocate Indira Jaising in the Supreme Court of India

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