Indira Jaising

| @IJaising | July 23,2018

Even before the ink was dry on what has come to be known as the “lynching judgment”, Swami Agnivesh was beaten up in Jharkhand allegedly by Yuva Morcha men. This has prompted people to ask: Do we need a new law on lynching as suggested by the Supreme Court of India? To answer that question, let us look at the history of lynching in other countries, notably against the Blacks in the US from 1880 up to 1960.

The common definition of lynching by the NAACP (National Association for the Advancement of Colored People) in the US is that:

(i) there must be evidence that a person was killed;

(ii) the person must have met death illegally;

(iii) a group of three or more persons must have participated in the killings; and

(iv) the killing is carried out in public.

The public nature of the crime is intended to make it an impact crime, to teach not only the person lynched a lesson but to make an entire community afraid of exercising its civil rights.

The public nature of the crime is intended to make it an impact crime, to teach not only the person lynched a lesson but to make an entire community afraid of exercising its civil rights

These communities are based on sex, race, caste or religion, characteristics that define their identity. There are the communities mentioned in Article 15 of the Constitution of India, which are protected by the fundamental right to non-discrimination.

Equality necessarily includes within it the notion of non-discrimination and hence the right to non-discrimination is based on the guarantee of equality before law and equal protection of law.

There can be hardly any doubt that lynching based on identity discriminates against a whole community and violates Article 14 and Article 15 of the Constitution of India. Constitutions need laws and infrastructure to make them come alive and the problem, as I see it, is that India has no anti-discrimination law in place to implement the guarantee of equality before law and equal protection of laws. Once such a law is in place, lynching becomes not just a crime simpliciter but a constitutional crime.

“The law will take its own course” has become a cliche and means nothing. Even more meaningless is the repeated assertion that law and order is a state subject and the Centre has nothing to do with it

A feeble Protection of Civil Rights Act was enacted in 1955, a law that few people know about. It is flawed as it is based on the victim having to justify that the crime or social exclusion is based on “untouchability”, an undefined concept in law. Criminal law cannot be vague and must have precision since it results in loss of liberty.

Given the widespread prevalence of lynching in the country now, it is time to introduce federal crimes, which affect the federation and are not to be described as affecting “law and order” but as crimes that are offences against the Constitution and hence for which the Union has to take responsibility.

But when ministers in the Central government garland the accused in the crime of lynching, is that not a violation of the very Constitution we live under? When one minister disobeys the law, all are collectively responsible

“The law will take its own course” has become a cliche and means nothing. Even more meaningless is the repeated assertion that law and order is a state subject and the Centre has nothing to do with it. It is this assertion that is sought to be addressed by the Supreme Court when it holds the Central government responsible for ending lynching in the country. The Centre has a constitutional duty to ensure that all states adhere to the Constitution. After all, the reason for imposing President’s Rule is the failure of constitutional machinery. But before we get to that stage, there is the need for prevention.

There should be a public message that lynching is a crime, that no person can be denied equal protection of laws. The court has mandated the Centre to do it through television and print media. It is the message that is important as much as the prosecution after the crime has been committed. But when ministers in the Central government garland the accused in the crime of lynching, is that not a violation of the very Constitution we live under? And whatever happened to our notions of collective responsibility so recently expounded by the SC in the GNCT case? When one minister disobeys the law, all are collectively responsible.

That brings me finally to the contours of the proposed law. What is lacking is a notion of command responsibility in the IPC. The crime is not committed only by the hand that kills but also by the person whose responsibility it was to prevent it. It is easy for any government to sacrifice a beat constable who watched while a man was being lynched, but what about the commissioner of police who failed to prevent that from happening under his very nose? Should he not be held equally responsible?

The judgment is a signal that the “new normal” does not satisfy our constitutional norms and guaranteed rights. The court has done its duty, let civil society do the rest. After all, it was a vibrant civil rights movement led by Martin Luther King, Jr that put an end to lynching in the United States. Not by courts alone can we end lynching. Let the Central government learn a lesson or two from the Constitution of India before it is too late.

[The article was first published in The Economic Times.]

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