[dropcap]O[/dropcap]n February 7, 2005, the Senate of the United States of America issued an apology to the victims and descendants of the victims of lynching which read as, “…the crime of lynching succeeded slavery as the ultimate expression of racism in the United States following Reconstruction.” Acknowledging the utter failure of the Federal government to actively prevent the lynching of over 5,000 people between 1882 and 1968, of which 4,742 were African Americans, and with the hopes of forging better racial relationships, the Senate said, “the Senate remembers the history of lynching, to ensure that these tragedies will be neither forgotten nor repeated”. Although this apology was a crucial step towards reconciliation, it has to be noted that over 200 Bills were introduced in the Senate to make lynching a Federal hate crime, however, none were approved. Further, about 99% of the perpetrators in these lynching cases went unpunished. This shows how a criminal justice system and the ruling dispensation so steeply ingrained in institutionalised racism respond to acts of hate and criminal aggression. Is an apology enough in this case?

Similarly in India, the data from IndiaSpend reveals that 98% of all cow related lynching since 2010 have occurred in the last four years, under the Modi government, and 86% of the victims have been Muslims. One of the first major cases to be prominently covered by the media in recent years was the September 28, 2015 murder of the 52-year-old Mohammad Akhlaq in Dadri, western Uttar Pradesh. Following an announcement at the local Hindu temple that the family had consumed and stored beef, an angry mob, dragged Akhlaq and his son out of their home in Bishara, a village near the city of Dadri, and brutally thrashed them.  His 82-year old mother, his wife and his daughter, all suffered injuries as well. Akhlaq later succumbed to the injuries.

Following this, Zahid Bhat was attacked by a group throwing petrol bombs at him while he was driving a truck of cow carcasses, later resulting in this death. It was later revealed that the cows had died of food poisoning and not slaughter. Since then, these incidents of mob violence have increased drastically. In March 2016, two Muslims were killed and hanged in the state of Jharkhand after being accused of smuggling cows.

Since India does not have a special law to deal with mob lynching coupled with the components of hate and prejudice, and the National Crime Records Bureau does not maintain a database on cases of mob and cow lynching, it is hard to track the trajectory of these cases. In response to the incidents, a PIL was filed by Tushar Gandhi (represented by Senior Advocate Indira Jaising) and Tehseen Poonawalla, seeking a direction to all the governments to take preventive measures against cow vigilantism. The Supreme Court has directed all state governments to appoint a senior police officer, not below the rank of superintendent of police, as a nodal officer in each district, who, along with a DSP rank officer, is to constitute a special task force to ensure that incidents of cow vigilantism are prevented and dealt with effectively, and the Court also directed the chief secretaries of every state government to file a status report giving details of the actions taken to prevent incidents of cow vigilantism. The recent news reports said that the Centre government has decided to air stern warnings about mob lynching and violence on TV and radio. Earlier, the Supreme Court had directed the State to disseminate message stating, “lynching, and mob violence of any kind shall invite serious consequences under the law”.

Much has been written already about the need for a separate law versus the existing laws covering the offense of mob lynching. A group of senior advocates in the Supreme Court have opined that the existing provisions under the Indian Penal Code such as common intention, common object, abetment, incitement of offence and intentionally provoking a riot are enough to cover mob lynching and violence. However, another group of lawyers and activists have stated that there is an imminent need for a new law that specifically deals with mob lynching. The National Campaign against Mob Lynching have drafted a Bill titled, “Manav Suraksha Kanoon” / “Protection from Lynching Act, 2017” to address the issue of mob lynching. Although this Bill is a positive step forward, the preventive powers given to the police authorities could be easily used against non-violent assemblies, and marginalised groups asserting their rights. Further, as stated before, over 86% of victims of mob lynching are Muslim. Hence, it is important that the proposed law specifically deals with the victims belonging to vulnerable groups, not just religious minorities, but also caste, gender and sexuality minorities, as they too are equally susceptible.

While debates on both the sides appear divided, it is useful to consider the example of the U.S. so as to understand why there is a need for a separate law to deal with mob lynching. In general, lynching occurred for two major reasons in the United States: “the first was the social aspect- righting some social wrong or perceived social wrong such as a violation of Jim Crow etiquette. The second was the economic aspect. For example, upon successful lynching of a black farmer or immigrant merchant, the land would be available and the market opened for white Americans” (The National Great Blacks In Wax Museum). Lynching were often “mobs [who] enforced the racist social order through beatings, cutting off fingers, burning down houses, and/or destroying the crops of African-Americans. Murder was a common form of lynch mob “justice,” sometimes with the complicity of law-enforcement authorities who participated directly or held victims in jail until a mob formed to carry out the murder” (The National Great Blacks In Wax Museum). Considering local police authorities also participated in these community acts of murder, there has been a historical lack in justice. Responsibility for the ongoing tradition of lynching within the U.S. is placed within community members, police authorities who turned a blind eye to it or directly enabled these acts, and both judges/juries who felt that lynching was an accurate form of “justice”.

In June, 2018, three black members of the U.S. Senate introduced a Bill titled “Justice for Victims of Lynching Act of 2018”, which would make lynching a Federal hate crime. This Bill states that, “The United States Senate agreed to unanimously Senate Resolution 118, 115th Congress, on April 5, 2017, ‘[c]ondemning hate crime and any other form of racism, religious or ethnic bias, discrimination, incitement to violence, or animus targeting a minority in the United States’’. Some of the reasons for introducing the Bill were, a) The Senate has failed the victims and families of victims of mob lynching, b) increasing instances of violence and hate crimes by hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy, c) absence of the element of explicit or implied hatred towards another group in the existing laws dealing with mob lynching, d) Over 99% of mob lynching cases ended with acquittal of the perpetrator.

Violence against the minorities both in India and the U.S. are fuelled by similar reasons and there are definitely factors of hate and retribution. Mob lynching for that matter, in India, in many cases has received the sanction of the State, just like how the U.S. Senate kept silent while thousands of African Americans were lynched over many decades. Vigilante groups working in the name of cow protection, and love jihad are flourishing in every nook and corner of the country. As many activists have expressed, the deficiency is not so much in the law, but in the enforcement of the law. It is true that radical police reforms are required.

However, it is important to note that the different institutions of the State in India are deeply casteist, and viciously communal in nature. Political parties exercise immense control over the police and it is apparent whose interests are being protected. No state governments have fully or even partially complied with the Supreme Court’s significant directives on police reforms in Prakash Singh v. Union of India (2006). Considering the acutely political character of the criminal justice system in India, and laxity of the State in minority affairs, presence of a law that explicitly delineates the insidious nature of mob lynching and hateful sentiments is crucial.

Commenting on the recent incidents of inter-caste couples murders, Professor Kancha Ilaiah Shepherd stated that we should stop using the term “honour killing” and call them “caste hatred murder”. He asked, “Where is the honour in killing someone?” As the U.S. Senators that proposed the Bill on lynching said, this move to recognise the deep-seated abhorrence in the society, and calling it what it is, that is “lynching”, sends a very powerful message that criminal acts of hatred are not tolerated in an equitable society.

[**Author acknowledges the research assistance rendered by Ms. Sophie Sitar and Ms. Namita Gupta, both interns at ALF.]