By Ankita Ramgopal with inputs from Amritananada Chakravorty and Rohit Ghosh..On 22nd June, 2017, a teenage boy Junaid Khan along with his brother Hasim, and cousins Moseem and Moeen, travelled by train to Sadar Bazaar, New Delhi to shop for Eid celebrations. Subsequently, they were returning to Ballabhgarh, Haryana, and caught the train from Okhla station at 5.30 in the evening. There were around 15-20 passengers on board at that time. The boys were engaged in a game of Ludo when they were cornered by 2-3 co-passengers who began pushing them and directing insults at them and their religion, using terms like "mullah". Junaid, Hasim, Moseem and Moeen decided to disembark at Faridabad station to put an end to the attack, but were unable to due to crowds on the train. The attackers soon turned violent and began physically assaulting the young boys.As a result of this altercation, Hasim and Moseem called up their respective brothers on the phone to come and pick them up from Ballabhgarh station. Once they reached the said station, Junaid, Hasim, Moseem and Moeen were unable to get off at the platform due to the crowd on the train, but the brothers they'd called on the phone to pick them up- Mujahid and Shakir- boarded the train from there. At this point one of the attackers took out a knife and directed it towards the boys. First attack was on Shakir who was stabbed in his neck, chest and hands with the knife. When Junaid tried to protect him, the attack was directed at him. He was stabbed multiple times and injured badly. When Hasim tried to defend Junaid, he was stabbed twice. The attack lasted till they reached Asaoti station, where the assaulters jumped off the wrong side of the moving train and escaped. Finally, Hasim, Moeen, Moseem, Shakir and Mujahid also disembarked at Asaoti carrying the gravely injured Junaid. From there they took Junaid to a civil hospital in Palwal by ambulance, however, he was declared dead on arrival. Hasim, Junaid's brother, registered a complaint on the following day at Government Railway Police station, Faridabad, under IPC sections 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapons or means), 302 (murder), and 34 (common intention), although the perpetrators are still at large. One of the accused was recently reportedly tracked down and arrested in Maharashtra..This incident comes as one of a series of attacks that has taken place across the country, targeting a community based on religious identity. According to reports, Muslims were the targets of 51% of violent incidents concerning cattle from 2010-2017, while comprising 86% of 28 people killed in 63 such incidents (24 were Muslims). Almost 97% of incidents happened in the last three years, under the watch of the present NDA government, while more than 50% of the violent attacks and killings, i.e., 32 of 63 incidents, have taken place in the BJP-ruled States, i.e., Rajasthan, Gujarat, Jharkhand, Madhya Pradesh, Uttar Pradesh, etc.[1].There is a climate of hostility which is alienating the minority community within the country. The denial of the government that such lynching is based on religion is indicative of an attempt to minimize the horror of the situation and pass it off as a law and order issue. Union Minister, Arun Jaitley, while saying that no one has a right to take the law into their own hands, reinforces the faith of a "large population with faith (in the cow)" and called upon people to be "have an element of tolerance and mutual respect.".There is clear evidence showing the systematic targeting of Muslims, if only one is willing to look. In September, 2015, Mohammad Akhlaq was lynched in Dadri, Uttar Pradesh, allegedly over rumours that he was storing and eating beef; in October, 2015, Noman was killed in Saharanpur, Himachal Pradesh, by villagers who believed him to be smuggling cattle; 2 men were beaten up in UP after being caught killing and skinning a cow; in January, 2016, a Muslim couple was assaulted by members of a Gaurakshaksamiti in Harda district, Madhya Pradesh; in March, 2016,2 Muslim cattle traders were assaulted and killed in Jharkhand; in July, 2016, a Dalit family was beaten up for skinning a cow in Gujarat; a Dalit family was assaulted in Chikmanglur district in Karnataka; in July, 2016, two Muslim women were attacked in Madhya Pradesh on the suspicion of carrying beef; a mob attacked a Muslim family's house on suspicion of cow slaughter in Muzzafarnagar, UP; in August, 2016, 2 boys were stripped, tied to a tree and assaulted after being seen skinning a cow in Mangalagiri, Andhra Pradesh; a Muslim couple was killed, 2 others injured and 2 girls raped in Haryana on the account of beef eating suspicions; in April, 2017, a mob beat up Pehlu Khan while he was transporting cows for his dairy farm; a family was attacked in Jammu on suspicions of cattle smuggling; in May, 2017, two meat traders were thrashed in Malegaon; inJune, 2017, a mob assaulted a Muslim man for trying to take beef for an iftaar party in Jharkhand; in June, 2017, staff and officials of the Tamil Nadu government's Animal Husbandry Department were assaulted in Barmer, Rajasthan on suspicion of cattle smuggling; in June, 2017, Usman Ansari was beaten up by a mob in Jharkhand when a dead cow was found outside their house; Alimuddin from Jharkand was beaten to death on suspicion of carrying beef; in July, 2017, Salim Shah was beaten up for carrying beef in Nagpur, a Muslim family of 10 was attacked on train to UP[2]. To worsen the situation in a period of clear hostility on the issue, the government came up with a notification banning cattle trade in May 2017, a move which lacks constitutional basis. The only relief that has come too little too late is the stay passed by Supreme Court lifting the ban on cattle slaughter in July. Junaid and his brother were not carrying beef, but they were wearing skull caps and therefore, were visibly Muslim, and that was enough to provoke the unprecedented violence against them..“"While the issue seems pan India, the response of the central government has been to take shelter of seventh schedule of the Constitution and resort to the argument that law and order is a state subject and as such it has no responsibility. That cannot be accepted as a legal proposition as the Union of India is under an obligation to preserve the Constitution, protect people's rights and prevent any violation thereof. In this regard, the heart of the issue is that of the accountability and responsibility of the State to protect the life and liberty of its citizens. This is the bounden constitutional duty of the State. The Central Government cannot wash its hand off these rampant killings on the basis that 'law and order' is a State subject, and police will take its action against the accused persons.".State accountability.In cases where the crime has been committed by servants of the State, the law is clear with regard to accountability being that of the State who must provide compensation to the victim commensurate with the harm occurred. In the case of Chairman, Railway Board and Ors. V. Chandrima Das and Ors.[3]a lady, who was a citizen of Bangladesh, had been raped by Railway officers at the yatri niwas of the Howrah Railway station. The contention raised before the Supreme Court on behalf of the Union of India was that it was a case of private law and an act of individual persons and, therefore, they alone should be prosecuted, the Union would not be vicariously liable. Additionally, it had been contended that the victim should've approached civil court for compensation and not filed a petition under Article 226 for violation of right to life. However, this contention was dismissed by Court and it was held that rape is a violation of a fundamental right guaranteed under Article 21 of the Constitution of India. Where public functionaries were involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, a remedy under public law which would be available to the victim. The contention that the government cannot be held vicariously liable was not accepted by the Court in this case. It was held that running of the Railways and establishment of yatri niwas at various railway stations to provide lodging facilities was part of the commercial activities of the Union of India. The employees were held to be essential components of the government machinery. Therefore, it was established that the Union government could be held vicariously liable for any wrongs committed by these government employees. The defence of sovereign immunity as propounded in the case of Kasturi Lal was not held maintainable in this case where violation of fundamental right to life was established.. "41. The theory of sovereign power which was propounded in Kasturi Lal case has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Government in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of sovereign powers. The functions of the State not only relate to the defence of the country or the administration of justice, but they extend to many other spheres as, for example, education, commercial, social, economic, political and even marital. These activities cannot be said to be related to sovereign power.".Another case where the crimes had been committed by State actors and the State was held vicariously liable was in Nilabati Behera v State of Orissa[4]. In this case, the petitioner's son had been taken into custody by the police, and found dead the next morning, his body located at a short distance from the police station where he was taken. The allegation of custodial death was made, and the State of Orissa with its police officers were impleaded. The Supreme Court directed the Magistrate to conduct an enquiry, which established that having regard to all the circumstances, it was a case of custodial death. It was held that the claim for compensation in public law is an acknowledged remedy for victims of violation of human rights, and such a claim is based on strict liability by resorting to constitutional remedy provided for enforcement of fundamental rights. The defence of sovereign immunity was held to be inapplicable in cases such as these where there was a violation of a fundamental right.."33. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of "sovereign immunity" in such cases is not available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either.". With regard to killings during an "encounter" by the police, the Supreme Court has given guidelines when dealing with extra-judicial killings in the case of People's Union for Civil Liberties and Anr v. State of Maharashtra and Ors.[5]which are as follows:."4. When a police officer receives any information, either orally or in writing, in furtherance of Section 154 CrPC regarding death or injuries caused in the course of an encounter operation between the police party and others, he shall enter the information in the Crime Register or any other appropriate register of that particular police station and shall immediately send the report (first information report) to the court without any further delay through a proper channel. The copies of the said report shall also be sent to the higher officials including the DGP of the State concerned and NHRC/SHRC. The DGP must also send his report with regard to such encounter death to NHRC. The DGP shall take disciplinary action against the officer-in-charge of the police station if he/she fails to send the report regarding the encounter death to NHRC and DGP. A report, as enjoined under Section 157(1) of the Criminal Procedure Code, shall also be followed necessarily by the police station concerned..In every case when a complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of IPC. Such case shall also be investigated by the aforesaid investigating team.".“Hence it is clear that there is no immunity for the police in an " encounter " death and an FIR will be registered in every such case , though the encounter is alleged to have taken place in the course of duty..In the case of Extra-Judicial Execution Victim Families Assn. v. Union of India[6]the extra-judicial killings, fake encounters, custodial deaths, and other human rights violations were discussed with reference to the State of Manipur by the hands of the Armed forces and police. It was held that the power of the armed forces was not absolute- it must be established whether said force was disproportionate, retaliatory. There is no blanket immunity available to perpetrators. It was very clear that if an offence was committed by an army personnel there is no concept of absolute immunity from trial by the criminal court constituted under Code of Criminal Procedure. It is , therefore, clear that there is no immunity from prosecution for state actors for alleged encounter deaths..Right to life- Duty to prevent loss of life by non-state actors.The obligation to protect the life and security of persons is the fountainhead of the Constitution of India. Article 21 of the Constitution guarantees the fundamental right to life and personal liberty to all individuals, except according to the procedure established by law. Mob lynching or targeted violence against individuals or groups on the basis of their religion or caste strikes at the heart of the Constitutional pact between the Indian State and its citizens. This was succinctly elaborated by the Delhi High Court in Ashwani Gupta vs. Government of India[7], wherein petitioner suffered injuries as a result of the bomb blast on 1st October, 1997, in Sadar Bazaar, Delhi. The petitioner lost his right leg below the knee, both hands except two fingers on the left hand and injury to both eyes. The claim in this petition was based on the fundamental plea of failure of the State to protect the life and limbs of the petitioner. Petitioner claimed compensation of Rs. 5 lakhs, and a specific relief of employment, however, he was granted only Rs. 25,000 and no employment. The Court noted."A cardinal principle underline the theory is the consent of the governed given to the Government on a basic premise – the promise of the Government to provide them security, safety and well being in return for minimal restriction of their rights and freedom. Edmund Burke said: "Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom.".The very basic want is security and safety of the individual person.".The Court further noted:."A person's right to life is, thus, not negotiable. The inability of the State to provide for such secure environment is, thus, clearly in breach of and in violation of the constitutional mandate and the privilege provided to a citizen of this country under the Constitution. The State must take all due care to uphold the Constitution. A natural consequence of this would be that if a person loses his life or suffers grievous injuries for no fault of his own, his Fundamental Rights under the Constitution are breached.". Thus, the Court directed a writ of Mandamus to be issued directing petitioner to be compensated Rs. 2,60,000/- along with interest @ 9% per annum from 1st of January, 1998 till the date of payment less the amount of Rs. 25,000/- already paid, and also to appoint him to one of the vacant posts reserved under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, according to his qualifications within one month of date of order..In Kamla Devi vs. Govt of NCT of Delhi,[8] the widow of Uday Singh filed a petition seeking writ of Mandamus directing respondents to pay the petitioners compensation of Rs.10 lakhs, for the death of her husband on account of a bomb blast that occurred when he was in the area of Paharganj in Deli.The Delhi High Court noted that."The public law demand, as distinct from the private law tort remedy, is that crime victims be given compensation even in "no-fault" situations by the State. Compensation cannot be limited to cases of police torture or custodial deaths. It must extend to riot victims and victims of terror, indeed, it must ultimately cover all victims of crime and all criminal injuries. Legislation is lacking in this field. But, that should not deter High Courts, which are courts of unlimited and plenary jurisdiction, from intervening and redressing grievances according to "principles of justice, equity and good conscience". Not to intervene would amount to shirking the responsibilities, which High Courts are expected to shoulder. So, compensation is payable to the petitioner by the State for the death of Uday Singh for the breach of the constitutional guarantee of Article 21 that "no person shall be deprived of his life, except according to procedure established by law'.". Therefore, despite the claim of the respondent, Government of National Capital Territory of Delhi, that they had done due diligence in terms of deployment of constables and other measures to ensure safety and security, they were still be held liable under no-fault liability..In the case of National Human Rights Commission v. State of Arunachal Pradesh and Anr, the State government was held accountable for actions of non-state actors. Chakma refugees who had migrated from Bangladesh, and settled in State of Arunachal Pradesh were threatened and attacked by a tribal student organisation called All Arunachal Pradesh Students' Union (AAPSU) with an intention to drive them out, seeing them as foreigners. A public interest litigation had been filed by NHRC to enforce the right under Article 21 of the Constitution for this tribal community. Court held the State of Arunachal Pradesh liable to ensure the life and personal liberty of the community and any attempt to forcibly drive them out of the state shall be repelled by force, paramilitary or police force if required.."We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty-bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations.".In addition to these precedents set by the Courts in the country, this duty to prevent offences or violations is further enshrined in Section 149, CrPC, which reads as:.Police to prevent cognizable offences: Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence..State responsibility in International law.The doctrine of State responsibility is primarily founded in the international human rights law, wherein there exists a duty imposed on the States to 'protect' people from violation of their human rights by State and non-State actors. Accordingly, this duty to 'protect' mandates the State to protect citizens and other people within their jurisdiction from violations that may be perpetrated by private actors.[9] Article 2 of the International Covenant on Civil and Political Rights, 1966 ('ICCPR') provides that the States have a duty to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. This obligation has two components, i.e., the duty to take preventive measures from occurrences of violations of human rights by private actors, and the duty to undertake effective remedial measures, in case of such violations.[10] This was reiterated by the Human Rights Committee, the nodal body responsible for the implementation of the ICCPR, in its General Comment on Article 6, wherein it noted that "States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces".[11] Thus, it is well-established that the States have an obligation to protect individuals or groups from human rights violations by the private actors..Besides the duty to prevent, there exists a duty to do due diligence in international law, i.e., an illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.[12].This was upheld in the case of Jessica Lenahan (Gonzales), who was living in a town of Castle Rock, Colorado, where she was living with her three children, after she had obtained a restraining order against her husband. Subsequently, her estranged husband kidnapped their children, clearly flouting the restraining order. Jessica Lenahan kept trying to reach Police authorities to intimate them that her husband had violated the restraining order; however, no response was forthcoming from the Police, and subsequently a shootout between the Police and her husband led to the deaths of their 3 children. On appeal in the Supreme Court of the United States, it was held that Jessica had no proprietary interest in the First Amendment and the State had no duty towards her specifically, hence, there was no liability on the police and no part of the Constitution of the USA was violated by the failure of the police to act. It was held that the police had the discretion to make an arrest or not to make it, and in those circumstances, Jessica could claim no violation of a duty of care to her. It was held that Colorado law did not create a personal entitlement to enforcement of restraining orders. A petition was then filed by her in the Inter-America Court of Human Rights where petitioner contended that the government had violated her rights when the police failed to protect her and her daughters and when the Supreme Court of the United States failed to provide her relief as well. Her grievances were finally addressed by this Court..“"According to the Inter-American Court of Human Rights, the duty to prevent includes "all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages".[13] The Court further held that "where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane".[14].Thus, increasingly, international law and instruments are recognizing the due diligence standard as a test for determining compliance by states with the obligation to protect human rights. Article 4(c) of the Declaration on the Elimination of Violence against Women provides that states have the duty to '[e]xercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons'. This standard is also applicable in respect of violations of economic, social and cultural rights by private actors is explicit in the Maastricht Guidelines, which stipulate that states are responsible for violations of economic, social and cultural rights 'that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors'.[15].According to Danwood Chirwa, an expert on international law, "State responsibility is incurred where the state fails to exercise due diligence to ensure that private actors do not commit the violations. Due diligence requires positive steps on the part of the state to prevent the violations, control and regulate private actors, investigate and, where applicable, prosecute and punish occurrences of violations, and provide effective remedies to victims. The jurisprudence of both the IACHR and the ECHR establishes that due diligence is essentially about the reasonableness or seriousness of the measures and steps taken by the state. Thus, the state is responsible for private actions resulting in human rights violations if it fails to take reasonable or serious measures to prevent violations or respond to them".[16].“"Thus, it is clear that international law mandates the State to prevent violations of rights of individuals, even by private actors, by undertaking due diligence to prevent and control private crimes, and in case of violations, to investigate and punish the perpetrators effectively. Even in domestic law, as noted above, there is a constitutional duty on the State to prevent the violation of the right to life and security, even by private actors, and in case of its failure to do so, to compensate the victims of crime in public law.".There is a distinction between cases where the crime is committed by state officers directly, where criminal and constitutional proceedings are clearly possible. In such cases the violation of fundamental rights is proved and compensation is claimed. The doctrine of sovereign immunity is not permitted due to the fundamental nature of the right which has been violated. The second type of cases are where the officers themselves are not the perpetrators, there may still be liability of the State to compensate victims of crime, for a breach of duty of care, as in the Jessica Lenahan Gonzales case..According to Chirwa, state responsibility can be incurred, not only for violations committed by the state itself and its servants, but also for those committed by non-state actors. The same is incurred when two elements are proved. The first is that there must be conduct consisting of an act or omission, which is attributable to the state under international law. The second is that the conduct must constitute a breach of an international obligation of the state. It is clear, therefore, that state responsibility is dependent on the link between the state and the wrongful act — the conduct of a private actor must qualify as an 'act of a state'. However, there must be a sufficient nexus between the state and the acts of the private actors for the state to assume liability — the conduct of the private actor must constitute an 'act of a state'. The fact that Junaid's death took place on State property should be sufficient to create the nexus between the State and the wrongful act. Such brutalities cannot be allowed to occur on State property without holding the State accountable for failing to prevent the violation of the right to life of Junaid..Sovereign immunity all but eroded.The doctrine of sovereign immunity has all been eroded in the UK , and remains to be eroded in India. The SC of UK had occasion to deal with the issue of "combat immunity" which is a special of "sovereign immunity".The Supreme Court of United Kingdom went a step ahead in its judgment in Smith and others (FC) (Appellants) v The Ministry of Defence (Respondent), Ellis (FC) (Respondent) v The Ministry of Defence (Appellant), Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant) [17]given on June 2013, identified State responsibility in combat situations where deaths of combatants had occurred due to faulty equipment. Allegations had been made against the Ministry of Defence of negligence by the family members of these combatants. Claimants alleged failure to ensure combatants were properly equipped with technology and equipment that could have prevented the mishaps. Another allegation was that the Ministry of Defence breached Article 2 of the European Convention on Human Rights by failing to take measures within the scope of its powers which, it might have been expected to take in the light of the real and immediate risk to life of soldiers.The Ministry of Defence relied on the concept of combat immunity to strike out the claim of negligence on their part. The majority judgment given by Lord Hope held that the claimants' complaints of negligence were directed towards things that should have been done long before the soldiers crossed the start line at the commencement of hostilities. Claimants were careful to avoid any criticism of the actions of the men who were actually engaged in armed combat at the time of the incident which would bring it squarely within the scope of combat immunity..A reference was made to the case of Bici v Ministry of Defence [2004] EWHC 786 (QB), para 90, where Elias J noted that combat immunity was exceptionally a defence to the government, and to individuals too, who take action in the course of actual or imminent armed conflict and cause damage to property or death or injury to fellow soldiers or civilians. It was an exception to the principle that was established in Entick v Carrington (1765) 19 State Tr 1029 that the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs. His opinion was reiterated wherein he asserted that the scope of the immunity should be construed narrowly. It was held that to apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it had previously been applied..It was held that certain activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. Therefore, combat immunity was disallowed as a defence of the State in the majority judgment of this case by the United Kingdom Supreme Court and the claim of the petitioners was held to be maintainable.This is indicative of the fact that fact that the defence of sovereign immunity has been severely eroded when wrongdoing has been found, not only in public law but also in private law..Lynching of minorities in India in the name of cow protection..The Centre's notification in May 2017, regarding cow slaughter was timed perfectly, before the festival of Ramzaan. The issue of cow slaughter regularly falls under state subjects, however, the Centre passed this notification under Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules 2017, imposing ban on sale of cattle in animal markers for the purpose of slaughter. What the State seems to be reluctant in acknowledging, is that notifications such as these legitimise the actions of lynching that have become so widespread. Despite the high number of cases of cow vigilantism by this time, the notification was issued, thereby further enabling the actions of these 'gau-rakshaks'..The state was put to notice that vigilantism has become a prevalent fact against Muslims and had a duty to address the issue of one more death by non-state actors on public property. With regard to the murder of Junaid Khan, it is rather unbelievable that a mob could corner and attack young boys, assault them on a train, i.e. public property and walk away unscathed and unaccountable. The Railway authorities allowed this brutality to happen within the premises of the train, and therefore need to be held accountable. The State has time and again failed to hold self-styled vigilantes accountable. And in doing so they have deprived one more young boy, Junaid, of his right to life. Therefore, it is essential that the State compensate the victim's family for the violation of his fundamental right on State premises..The denial by railway officials of having seen or heard anything compounds the issue and amounts of denial of access to justice, a right also guaranteed under international law..“"Additionally, with the alarming number , the repetitiveness and the pattern of these incidents against the minority community only , it is important for the State to step up and show some responsibility by forming a Commission for enquiry under the Commission of Inquiry Act, 1952, into all the lynchings that have taken place since 2014 underSection 3 of the Act, since admittedly, lynching is a definite matter of public interest.There has been an extended period of passivity by the government towards these issues, however, the epidemic nature of these lynchings warrants immediate and effective action.".Such a Commission of enquiry would establish patterns of lynching against members of the minority community and help fix accountability and prevent such incidents from occurring in the future..The tragic death of Junaid, which led to the Not in My Name movement, should also lead to some legal accountability of the State for the unlawful death of a young man and an enquiry into what exactly happened and who should be held responsible.The author is a research and advocacy officer with Lawyers Collective. .[1]http://www.indiaspend.com/cover-story/86-dead-in-cow-related-violence-since-2010-are-muslim-97-attacks-after-2014-2014.[2]https://thewire.in/153091/storymap-lynchings-india-cow-slaughter-beef-ban-gau-rakshak/.[3](2000) 2 SCC 465.[4]AIR (1993) SC 1960.[5] (2014)10 SCC 635.[6](2016) 14 SCC 536.[7] 117 (2005) DLT 112.[8]114 (2004) DLT 57.[9]DanwoodChirwa, "The Doctrine of State Responsibility as a potential means of holding private actors accountable for human rights" Melbourne Journal of International Law, Vol-5 (2004).[10] Ibid.[11] General Comment No. 6, Human Rights Committee (1982).[12]Velásquez Rodríguez v Honduras, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)..Jessica Lenahan (Gonzales) Et Al. V. United States; before the Inter-American Commission on Human Rights, decided on July 21, 2011.[13]Ibid at 17.[14]Ibid.[15] Ibid at 2.[16] Ibid.[17]https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0249_Judgment.pdf
By Ankita Ramgopal with inputs from Amritananada Chakravorty and Rohit Ghosh..On 22nd June, 2017, a teenage boy Junaid Khan along with his brother Hasim, and cousins Moseem and Moeen, travelled by train to Sadar Bazaar, New Delhi to shop for Eid celebrations. Subsequently, they were returning to Ballabhgarh, Haryana, and caught the train from Okhla station at 5.30 in the evening. There were around 15-20 passengers on board at that time. The boys were engaged in a game of Ludo when they were cornered by 2-3 co-passengers who began pushing them and directing insults at them and their religion, using terms like "mullah". Junaid, Hasim, Moseem and Moeen decided to disembark at Faridabad station to put an end to the attack, but were unable to due to crowds on the train. The attackers soon turned violent and began physically assaulting the young boys.As a result of this altercation, Hasim and Moseem called up their respective brothers on the phone to come and pick them up from Ballabhgarh station. Once they reached the said station, Junaid, Hasim, Moseem and Moeen were unable to get off at the platform due to the crowd on the train, but the brothers they'd called on the phone to pick them up- Mujahid and Shakir- boarded the train from there. At this point one of the attackers took out a knife and directed it towards the boys. First attack was on Shakir who was stabbed in his neck, chest and hands with the knife. When Junaid tried to protect him, the attack was directed at him. He was stabbed multiple times and injured badly. When Hasim tried to defend Junaid, he was stabbed twice. The attack lasted till they reached Asaoti station, where the assaulters jumped off the wrong side of the moving train and escaped. Finally, Hasim, Moeen, Moseem, Shakir and Mujahid also disembarked at Asaoti carrying the gravely injured Junaid. From there they took Junaid to a civil hospital in Palwal by ambulance, however, he was declared dead on arrival. Hasim, Junaid's brother, registered a complaint on the following day at Government Railway Police station, Faridabad, under IPC sections 323 (voluntarily causing hurt), 324 (voluntarily causing hurt by dangerous weapons or means), 302 (murder), and 34 (common intention), although the perpetrators are still at large. One of the accused was recently reportedly tracked down and arrested in Maharashtra..This incident comes as one of a series of attacks that has taken place across the country, targeting a community based on religious identity. According to reports, Muslims were the targets of 51% of violent incidents concerning cattle from 2010-2017, while comprising 86% of 28 people killed in 63 such incidents (24 were Muslims). Almost 97% of incidents happened in the last three years, under the watch of the present NDA government, while more than 50% of the violent attacks and killings, i.e., 32 of 63 incidents, have taken place in the BJP-ruled States, i.e., Rajasthan, Gujarat, Jharkhand, Madhya Pradesh, Uttar Pradesh, etc.[1].There is a climate of hostility which is alienating the minority community within the country. The denial of the government that such lynching is based on religion is indicative of an attempt to minimize the horror of the situation and pass it off as a law and order issue. Union Minister, Arun Jaitley, while saying that no one has a right to take the law into their own hands, reinforces the faith of a "large population with faith (in the cow)" and called upon people to be "have an element of tolerance and mutual respect.".There is clear evidence showing the systematic targeting of Muslims, if only one is willing to look. In September, 2015, Mohammad Akhlaq was lynched in Dadri, Uttar Pradesh, allegedly over rumours that he was storing and eating beef; in October, 2015, Noman was killed in Saharanpur, Himachal Pradesh, by villagers who believed him to be smuggling cattle; 2 men were beaten up in UP after being caught killing and skinning a cow; in January, 2016, a Muslim couple was assaulted by members of a Gaurakshaksamiti in Harda district, Madhya Pradesh; in March, 2016,2 Muslim cattle traders were assaulted and killed in Jharkhand; in July, 2016, a Dalit family was beaten up for skinning a cow in Gujarat; a Dalit family was assaulted in Chikmanglur district in Karnataka; in July, 2016, two Muslim women were attacked in Madhya Pradesh on the suspicion of carrying beef; a mob attacked a Muslim family's house on suspicion of cow slaughter in Muzzafarnagar, UP; in August, 2016, 2 boys were stripped, tied to a tree and assaulted after being seen skinning a cow in Mangalagiri, Andhra Pradesh; a Muslim couple was killed, 2 others injured and 2 girls raped in Haryana on the account of beef eating suspicions; in April, 2017, a mob beat up Pehlu Khan while he was transporting cows for his dairy farm; a family was attacked in Jammu on suspicions of cattle smuggling; in May, 2017, two meat traders were thrashed in Malegaon; inJune, 2017, a mob assaulted a Muslim man for trying to take beef for an iftaar party in Jharkhand; in June, 2017, staff and officials of the Tamil Nadu government's Animal Husbandry Department were assaulted in Barmer, Rajasthan on suspicion of cattle smuggling; in June, 2017, Usman Ansari was beaten up by a mob in Jharkhand when a dead cow was found outside their house; Alimuddin from Jharkand was beaten to death on suspicion of carrying beef; in July, 2017, Salim Shah was beaten up for carrying beef in Nagpur, a Muslim family of 10 was attacked on train to UP[2]. To worsen the situation in a period of clear hostility on the issue, the government came up with a notification banning cattle trade in May 2017, a move which lacks constitutional basis. The only relief that has come too little too late is the stay passed by Supreme Court lifting the ban on cattle slaughter in July. Junaid and his brother were not carrying beef, but they were wearing skull caps and therefore, were visibly Muslim, and that was enough to provoke the unprecedented violence against them..“"While the issue seems pan India, the response of the central government has been to take shelter of seventh schedule of the Constitution and resort to the argument that law and order is a state subject and as such it has no responsibility. That cannot be accepted as a legal proposition as the Union of India is under an obligation to preserve the Constitution, protect people's rights and prevent any violation thereof. In this regard, the heart of the issue is that of the accountability and responsibility of the State to protect the life and liberty of its citizens. This is the bounden constitutional duty of the State. The Central Government cannot wash its hand off these rampant killings on the basis that 'law and order' is a State subject, and police will take its action against the accused persons.".State accountability.In cases where the crime has been committed by servants of the State, the law is clear with regard to accountability being that of the State who must provide compensation to the victim commensurate with the harm occurred. In the case of Chairman, Railway Board and Ors. V. Chandrima Das and Ors.[3]a lady, who was a citizen of Bangladesh, had been raped by Railway officers at the yatri niwas of the Howrah Railway station. The contention raised before the Supreme Court on behalf of the Union of India was that it was a case of private law and an act of individual persons and, therefore, they alone should be prosecuted, the Union would not be vicariously liable. Additionally, it had been contended that the victim should've approached civil court for compensation and not filed a petition under Article 226 for violation of right to life. However, this contention was dismissed by Court and it was held that rape is a violation of a fundamental right guaranteed under Article 21 of the Constitution of India. Where public functionaries were involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, a remedy under public law which would be available to the victim. The contention that the government cannot be held vicariously liable was not accepted by the Court in this case. It was held that running of the Railways and establishment of yatri niwas at various railway stations to provide lodging facilities was part of the commercial activities of the Union of India. The employees were held to be essential components of the government machinery. Therefore, it was established that the Union government could be held vicariously liable for any wrongs committed by these government employees. The defence of sovereign immunity as propounded in the case of Kasturi Lal was not held maintainable in this case where violation of fundamental right to life was established.. "41. The theory of sovereign power which was propounded in Kasturi Lal case has yielded to new theories and is no longer available in a welfare State. It may be pointed out that functions of the Government in a welfare State are manifold, all of which cannot be said to be the activities relating to exercise of sovereign powers. The functions of the State not only relate to the defence of the country or the administration of justice, but they extend to many other spheres as, for example, education, commercial, social, economic, political and even marital. These activities cannot be said to be related to sovereign power.".Another case where the crimes had been committed by State actors and the State was held vicariously liable was in Nilabati Behera v State of Orissa[4]. In this case, the petitioner's son had been taken into custody by the police, and found dead the next morning, his body located at a short distance from the police station where he was taken. The allegation of custodial death was made, and the State of Orissa with its police officers were impleaded. The Supreme Court directed the Magistrate to conduct an enquiry, which established that having regard to all the circumstances, it was a case of custodial death. It was held that the claim for compensation in public law is an acknowledged remedy for victims of violation of human rights, and such a claim is based on strict liability by resorting to constitutional remedy provided for enforcement of fundamental rights. The defence of sovereign immunity was held to be inapplicable in cases such as these where there was a violation of a fundamental right.."33. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. I agree with Brother Verma, J. that the defence of "sovereign immunity" in such cases is not available to the State and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either.". With regard to killings during an "encounter" by the police, the Supreme Court has given guidelines when dealing with extra-judicial killings in the case of People's Union for Civil Liberties and Anr v. State of Maharashtra and Ors.[5]which are as follows:."4. When a police officer receives any information, either orally or in writing, in furtherance of Section 154 CrPC regarding death or injuries caused in the course of an encounter operation between the police party and others, he shall enter the information in the Crime Register or any other appropriate register of that particular police station and shall immediately send the report (first information report) to the court without any further delay through a proper channel. The copies of the said report shall also be sent to the higher officials including the DGP of the State concerned and NHRC/SHRC. The DGP must also send his report with regard to such encounter death to NHRC. The DGP shall take disciplinary action against the officer-in-charge of the police station if he/she fails to send the report regarding the encounter death to NHRC and DGP. A report, as enjoined under Section 157(1) of the Criminal Procedure Code, shall also be followed necessarily by the police station concerned..In every case when a complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of IPC. Such case shall also be investigated by the aforesaid investigating team.".“Hence it is clear that there is no immunity for the police in an " encounter " death and an FIR will be registered in every such case , though the encounter is alleged to have taken place in the course of duty..In the case of Extra-Judicial Execution Victim Families Assn. v. Union of India[6]the extra-judicial killings, fake encounters, custodial deaths, and other human rights violations were discussed with reference to the State of Manipur by the hands of the Armed forces and police. It was held that the power of the armed forces was not absolute- it must be established whether said force was disproportionate, retaliatory. There is no blanket immunity available to perpetrators. It was very clear that if an offence was committed by an army personnel there is no concept of absolute immunity from trial by the criminal court constituted under Code of Criminal Procedure. It is , therefore, clear that there is no immunity from prosecution for state actors for alleged encounter deaths..Right to life- Duty to prevent loss of life by non-state actors.The obligation to protect the life and security of persons is the fountainhead of the Constitution of India. Article 21 of the Constitution guarantees the fundamental right to life and personal liberty to all individuals, except according to the procedure established by law. Mob lynching or targeted violence against individuals or groups on the basis of their religion or caste strikes at the heart of the Constitutional pact between the Indian State and its citizens. This was succinctly elaborated by the Delhi High Court in Ashwani Gupta vs. Government of India[7], wherein petitioner suffered injuries as a result of the bomb blast on 1st October, 1997, in Sadar Bazaar, Delhi. The petitioner lost his right leg below the knee, both hands except two fingers on the left hand and injury to both eyes. The claim in this petition was based on the fundamental plea of failure of the State to protect the life and limbs of the petitioner. Petitioner claimed compensation of Rs. 5 lakhs, and a specific relief of employment, however, he was granted only Rs. 25,000 and no employment. The Court noted."A cardinal principle underline the theory is the consent of the governed given to the Government on a basic premise – the promise of the Government to provide them security, safety and well being in return for minimal restriction of their rights and freedom. Edmund Burke said: "Government is a contrivance of human wisdom to provide for human wants. Men have a right that these wants should be provided for by this wisdom.".The very basic want is security and safety of the individual person.".The Court further noted:."A person's right to life is, thus, not negotiable. The inability of the State to provide for such secure environment is, thus, clearly in breach of and in violation of the constitutional mandate and the privilege provided to a citizen of this country under the Constitution. The State must take all due care to uphold the Constitution. A natural consequence of this would be that if a person loses his life or suffers grievous injuries for no fault of his own, his Fundamental Rights under the Constitution are breached.". Thus, the Court directed a writ of Mandamus to be issued directing petitioner to be compensated Rs. 2,60,000/- along with interest @ 9% per annum from 1st of January, 1998 till the date of payment less the amount of Rs. 25,000/- already paid, and also to appoint him to one of the vacant posts reserved under Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, according to his qualifications within one month of date of order..In Kamla Devi vs. Govt of NCT of Delhi,[8] the widow of Uday Singh filed a petition seeking writ of Mandamus directing respondents to pay the petitioners compensation of Rs.10 lakhs, for the death of her husband on account of a bomb blast that occurred when he was in the area of Paharganj in Deli.The Delhi High Court noted that."The public law demand, as distinct from the private law tort remedy, is that crime victims be given compensation even in "no-fault" situations by the State. Compensation cannot be limited to cases of police torture or custodial deaths. It must extend to riot victims and victims of terror, indeed, it must ultimately cover all victims of crime and all criminal injuries. Legislation is lacking in this field. But, that should not deter High Courts, which are courts of unlimited and plenary jurisdiction, from intervening and redressing grievances according to "principles of justice, equity and good conscience". Not to intervene would amount to shirking the responsibilities, which High Courts are expected to shoulder. So, compensation is payable to the petitioner by the State for the death of Uday Singh for the breach of the constitutional guarantee of Article 21 that "no person shall be deprived of his life, except according to procedure established by law'.". Therefore, despite the claim of the respondent, Government of National Capital Territory of Delhi, that they had done due diligence in terms of deployment of constables and other measures to ensure safety and security, they were still be held liable under no-fault liability..In the case of National Human Rights Commission v. State of Arunachal Pradesh and Anr, the State government was held accountable for actions of non-state actors. Chakma refugees who had migrated from Bangladesh, and settled in State of Arunachal Pradesh were threatened and attacked by a tribal student organisation called All Arunachal Pradesh Students' Union (AAPSU) with an intention to drive them out, seeing them as foreigners. A public interest litigation had been filed by NHRC to enforce the right under Article 21 of the Constitution for this tribal community. Court held the State of Arunachal Pradesh liable to ensure the life and personal liberty of the community and any attempt to forcibly drive them out of the state shall be repelled by force, paramilitary or police force if required.."We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise, and it cannot permit anybody or group of persons, e.g., the AAPSU, to threaten the Chakmas to leave the State, failing which they would be forced to do so. No State Government worth the name can tolerate such threats by one group of persons to another group of persons; it is duty-bound to protect the threatened group from such assaults and if it fails to do so, it will fail to perform its constitutional as well as statutory obligations.".In addition to these precedents set by the Courts in the country, this duty to prevent offences or violations is further enshrined in Section 149, CrPC, which reads as:.Police to prevent cognizable offences: Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence..State responsibility in International law.The doctrine of State responsibility is primarily founded in the international human rights law, wherein there exists a duty imposed on the States to 'protect' people from violation of their human rights by State and non-State actors. Accordingly, this duty to 'protect' mandates the State to protect citizens and other people within their jurisdiction from violations that may be perpetrated by private actors.[9] Article 2 of the International Covenant on Civil and Political Rights, 1966 ('ICCPR') provides that the States have a duty to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the Covenant. This obligation has two components, i.e., the duty to take preventive measures from occurrences of violations of human rights by private actors, and the duty to undertake effective remedial measures, in case of such violations.[10] This was reiterated by the Human Rights Committee, the nodal body responsible for the implementation of the ICCPR, in its General Comment on Article 6, wherein it noted that "States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces".[11] Thus, it is well-established that the States have an obligation to protect individuals or groups from human rights violations by the private actors..Besides the duty to prevent, there exists a duty to do due diligence in international law, i.e., an illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.[12].This was upheld in the case of Jessica Lenahan (Gonzales), who was living in a town of Castle Rock, Colorado, where she was living with her three children, after she had obtained a restraining order against her husband. Subsequently, her estranged husband kidnapped their children, clearly flouting the restraining order. Jessica Lenahan kept trying to reach Police authorities to intimate them that her husband had violated the restraining order; however, no response was forthcoming from the Police, and subsequently a shootout between the Police and her husband led to the deaths of their 3 children. On appeal in the Supreme Court of the United States, it was held that Jessica had no proprietary interest in the First Amendment and the State had no duty towards her specifically, hence, there was no liability on the police and no part of the Constitution of the USA was violated by the failure of the police to act. It was held that the police had the discretion to make an arrest or not to make it, and in those circumstances, Jessica could claim no violation of a duty of care to her. It was held that Colorado law did not create a personal entitlement to enforcement of restraining orders. A petition was then filed by her in the Inter-America Court of Human Rights where petitioner contended that the government had violated her rights when the police failed to protect her and her daughters and when the Supreme Court of the United States failed to provide her relief as well. Her grievances were finally addressed by this Court..“"According to the Inter-American Court of Human Rights, the duty to prevent includes "all those means of a legal, political, administrative and cultural nature that promote the protection of human rights and ensure that any violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those responsible and the obligation to indemnify the victims for damages".[13] The Court further held that "where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane".[14].Thus, increasingly, international law and instruments are recognizing the due diligence standard as a test for determining compliance by states with the obligation to protect human rights. Article 4(c) of the Declaration on the Elimination of Violence against Women provides that states have the duty to '[e]xercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons'. This standard is also applicable in respect of violations of economic, social and cultural rights by private actors is explicit in the Maastricht Guidelines, which stipulate that states are responsible for violations of economic, social and cultural rights 'that result from their failure to exercise due diligence in controlling the behaviour of such non-state actors'.[15].According to Danwood Chirwa, an expert on international law, "State responsibility is incurred where the state fails to exercise due diligence to ensure that private actors do not commit the violations. Due diligence requires positive steps on the part of the state to prevent the violations, control and regulate private actors, investigate and, where applicable, prosecute and punish occurrences of violations, and provide effective remedies to victims. The jurisprudence of both the IACHR and the ECHR establishes that due diligence is essentially about the reasonableness or seriousness of the measures and steps taken by the state. Thus, the state is responsible for private actions resulting in human rights violations if it fails to take reasonable or serious measures to prevent violations or respond to them".[16].“"Thus, it is clear that international law mandates the State to prevent violations of rights of individuals, even by private actors, by undertaking due diligence to prevent and control private crimes, and in case of violations, to investigate and punish the perpetrators effectively. Even in domestic law, as noted above, there is a constitutional duty on the State to prevent the violation of the right to life and security, even by private actors, and in case of its failure to do so, to compensate the victims of crime in public law.".There is a distinction between cases where the crime is committed by state officers directly, where criminal and constitutional proceedings are clearly possible. In such cases the violation of fundamental rights is proved and compensation is claimed. The doctrine of sovereign immunity is not permitted due to the fundamental nature of the right which has been violated. The second type of cases are where the officers themselves are not the perpetrators, there may still be liability of the State to compensate victims of crime, for a breach of duty of care, as in the Jessica Lenahan Gonzales case..According to Chirwa, state responsibility can be incurred, not only for violations committed by the state itself and its servants, but also for those committed by non-state actors. The same is incurred when two elements are proved. The first is that there must be conduct consisting of an act or omission, which is attributable to the state under international law. The second is that the conduct must constitute a breach of an international obligation of the state. It is clear, therefore, that state responsibility is dependent on the link between the state and the wrongful act — the conduct of a private actor must qualify as an 'act of a state'. However, there must be a sufficient nexus between the state and the acts of the private actors for the state to assume liability — the conduct of the private actor must constitute an 'act of a state'. The fact that Junaid's death took place on State property should be sufficient to create the nexus between the State and the wrongful act. Such brutalities cannot be allowed to occur on State property without holding the State accountable for failing to prevent the violation of the right to life of Junaid..Sovereign immunity all but eroded.The doctrine of sovereign immunity has all been eroded in the UK , and remains to be eroded in India. The SC of UK had occasion to deal with the issue of "combat immunity" which is a special of "sovereign immunity".The Supreme Court of United Kingdom went a step ahead in its judgment in Smith and others (FC) (Appellants) v The Ministry of Defence (Respondent), Ellis (FC) (Respondent) v The Ministry of Defence (Appellant), Allbutt and others (FC) (Respondents) v The Ministry of Defence (Appellant) [17]given on June 2013, identified State responsibility in combat situations where deaths of combatants had occurred due to faulty equipment. Allegations had been made against the Ministry of Defence of negligence by the family members of these combatants. Claimants alleged failure to ensure combatants were properly equipped with technology and equipment that could have prevented the mishaps. Another allegation was that the Ministry of Defence breached Article 2 of the European Convention on Human Rights by failing to take measures within the scope of its powers which, it might have been expected to take in the light of the real and immediate risk to life of soldiers.The Ministry of Defence relied on the concept of combat immunity to strike out the claim of negligence on their part. The majority judgment given by Lord Hope held that the claimants' complaints of negligence were directed towards things that should have been done long before the soldiers crossed the start line at the commencement of hostilities. Claimants were careful to avoid any criticism of the actions of the men who were actually engaged in armed combat at the time of the incident which would bring it squarely within the scope of combat immunity..A reference was made to the case of Bici v Ministry of Defence [2004] EWHC 786 (QB), para 90, where Elias J noted that combat immunity was exceptionally a defence to the government, and to individuals too, who take action in the course of actual or imminent armed conflict and cause damage to property or death or injury to fellow soldiers or civilians. It was an exception to the principle that was established in Entick v Carrington (1765) 19 State Tr 1029 that the executive cannot simply rely on the interests of the state as a justification for the commission of wrongs. His opinion was reiterated wherein he asserted that the scope of the immunity should be construed narrowly. It was held that to apply the doctrine of combat immunity to these claims would involve an extension of that doctrine beyond the cases to which it had previously been applied..It was held that certain activities are sufficiently far removed from the pressures and risks of active operations against the enemy for it to not to be unreasonable to expect a duty of care to be exercised, so long as the standard of care that is imposed has regard to the nature of these activities and to their circumstances. Therefore, combat immunity was disallowed as a defence of the State in the majority judgment of this case by the United Kingdom Supreme Court and the claim of the petitioners was held to be maintainable.This is indicative of the fact that fact that the defence of sovereign immunity has been severely eroded when wrongdoing has been found, not only in public law but also in private law..Lynching of minorities in India in the name of cow protection..The Centre's notification in May 2017, regarding cow slaughter was timed perfectly, before the festival of Ramzaan. The issue of cow slaughter regularly falls under state subjects, however, the Centre passed this notification under Prevention of Cruelty to Animals (Regulation of Livestock Markets) Rules 2017, imposing ban on sale of cattle in animal markers for the purpose of slaughter. What the State seems to be reluctant in acknowledging, is that notifications such as these legitimise the actions of lynching that have become so widespread. Despite the high number of cases of cow vigilantism by this time, the notification was issued, thereby further enabling the actions of these 'gau-rakshaks'..The state was put to notice that vigilantism has become a prevalent fact against Muslims and had a duty to address the issue of one more death by non-state actors on public property. With regard to the murder of Junaid Khan, it is rather unbelievable that a mob could corner and attack young boys, assault them on a train, i.e. public property and walk away unscathed and unaccountable. The Railway authorities allowed this brutality to happen within the premises of the train, and therefore need to be held accountable. The State has time and again failed to hold self-styled vigilantes accountable. And in doing so they have deprived one more young boy, Junaid, of his right to life. Therefore, it is essential that the State compensate the victim's family for the violation of his fundamental right on State premises..The denial by railway officials of having seen or heard anything compounds the issue and amounts of denial of access to justice, a right also guaranteed under international law..“"Additionally, with the alarming number , the repetitiveness and the pattern of these incidents against the minority community only , it is important for the State to step up and show some responsibility by forming a Commission for enquiry under the Commission of Inquiry Act, 1952, into all the lynchings that have taken place since 2014 underSection 3 of the Act, since admittedly, lynching is a definite matter of public interest.There has been an extended period of passivity by the government towards these issues, however, the epidemic nature of these lynchings warrants immediate and effective action.".Such a Commission of enquiry would establish patterns of lynching against members of the minority community and help fix accountability and prevent such incidents from occurring in the future..The tragic death of Junaid, which led to the Not in My Name movement, should also lead to some legal accountability of the State for the unlawful death of a young man and an enquiry into what exactly happened and who should be held responsible.The author is a research and advocacy officer with Lawyers Collective. .[1]http://www.indiaspend.com/cover-story/86-dead-in-cow-related-violence-since-2010-are-muslim-97-attacks-after-2014-2014.[2]https://thewire.in/153091/storymap-lynchings-india-cow-slaughter-beef-ban-gau-rakshak/.[3](2000) 2 SCC 465.[4]AIR (1993) SC 1960.[5] (2014)10 SCC 635.[6](2016) 14 SCC 536.[7] 117 (2005) DLT 112.[8]114 (2004) DLT 57.[9]DanwoodChirwa, "The Doctrine of State Responsibility as a potential means of holding private actors accountable for human rights" Melbourne Journal of International Law, Vol-5 (2004).[10] Ibid.[11] General Comment No. 6, Human Rights Committee (1982).[12]Velásquez Rodríguez v Honduras, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988)..Jessica Lenahan (Gonzales) Et Al. V. United States; before the Inter-American Commission on Human Rights, decided on July 21, 2011.[13]Ibid at 17.[14]Ibid.[15] Ibid at 2.[16] Ibid.[17]https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0249_Judgment.pdf
