This article is written by Shubham Gurav and Bodhi Ramteke, students of ILS Law College,  Pune. In this article, they have explained the concept of mob lynching, the current scenario in India and the laws relating to it.

Introduction

“In regard to the law of hate speech responsible for inciting communal passions, the central reality in India is not the abuse of law, but persistent refusal to enforce it.”

‘We the people’ – the opening words of the Constitution, the founding document of India – sums up the perception of society, of shared culture and history, and of civic affiliation, a perception that has been questioned throughout the lengthy period of Indian history. India, the fifth-largest economy in the world, is facing a threat to its integrity and growth, given the growing incidence of lynching. It is one of those hate crimes that through structured hate campaigns has become a language of indoctrinating vigilance. Mob lynching in India is a big religious and politico-legal crisis for democracy, requiring urgent solutions.

Religion, when assisted by the political support, is an instrument used to infuse disdain in the minds of individuals, aiding the accused to commit such an offence fearlessly. There is a noticeable accretion in community forces that have succeeded in spreading violence by taking punitive extra-judicial measures, with rumours playing a significant role. The individuals are under consistent danger of getting executed or thrashed on insignificant grounds of doubt that they belong to a specific group, religion or caste. This attitude transforms society into a fascist state, as individuals, who elect their leaders, maintain silence at gunpoint, ultimately strengthening the moral legitimacy of the offenders.

This article examines the participation of the people as a racialized group with extra-legal punitive power of death, and how it catalyzes the rise of mobocracy affecting the individual right of the person by their ostensible judgement, which conclusively is an ambush on democracy. 

An extensive, magnificent document, the Constitution must be ascribed to India’s achievement as a democratic autonomous country. This holy book is the preeminent document, and it was with the reception of this scripture, India embraced the ‘Rule of the law.’ This Rule of law, along with its enforcement machinery, was assigned the role of protection of the people from any arbitrary principle and to provide justice to all. The law enforcement agencies cannot act arbitrarily in order to regulate social behavior, but they are governed by land law. The primary goal of the law is to have an orderly society where the citizen dreams for change and progress is realized, and the individual aspiration finds space for the expression of his/her potential. In such an atmosphere where every citizen is entitled to enjoy the rights and interest bestowed under the constitutional and statutory law, he is also obligated to remain obeisant to the command of the law.

In Tehseen S. Poonawalla v. Union of India, the Supreme Court stated (see here) “The majesty of law cannot be sullied simply because an individual or a group generate the attitude that they have been empowered by the principles set out in law to take its enforcement into their own hands and gradually become law unto themselves and punish the violator on their own assumption and in the manner in which they deem fit. They forget that the administration of law is conferred on the law enforcing agencies and no one is allowed to take the law into his own hands on the fancy of his “shallow spirit of judgment”. Just as one is entitled to fight for his rights in law, the other is entitled to be treated as innocent till he is found guilty after a fair trial. No act of a citizen is to be adjudged by any kind of community under the guise of protectors of law.”

However, individuals over the world have been taking the law in their very own hands and have been punishing the individuals in a way they deem fit. They end up behaving barbarously, driven by their personal perceptions of right and wrong. The outcome of such episodes may be something as serious as murder, executed usually by a group of individuals and not a person.  Such an act, driven by extreme beliefs and made aggressive by a resolve to attack any other belief contradictory to it, is, in short, mob lynching.

In recent years, India has seen a considerable rise in mob lynching activities. An overwhelming majority of such incidents involve the spontaneous attack by a racialized group of people, who consider the act of the victim as a strike against the deep roots of traditions and religion. 

Meaning of the Phenomenon

Lynching is not a new phenomenon, but it has been around the world all the time. The term lynch law refers to a self-constituted court that imposes sentence on a person without due process of law. Both terms are derived from the name of Charles Lynch (1736–96), a Virginia planter and justice of the peace who, during the American Revolution, headed an irregular court formed to punish loyalists. (see here)

Fitzhugh Brundage states “lynching combines the fellowship of a hunt with the honor of serving the alleged needs of the community,” Generally, lynching is defined as a homicidal aggression punishing (often killing) a person or persons by an angry mob to suppress the tendency of deviance and the heinous crime committed by the former. The crime is so savage that it socially revolts the crowd to gather spontaneously killing the criminal (see here).

The common definition of lynching by 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 (see here).

Thus, lynching is an act of unspeakable horror. There is an absolute asymmetry of power. It is a mob versus an individual, who is often defenceless and begging for life.

Current Scenario in India

Lynching in India includes lynching of those accused of petty crimes, individuals accused of murder and rape, and also the individuals perceived by the mob as deviants. The main reason for deaths by lynching has been a result of witch-hunts, the barbaric caste system in the country, and other religiously driven reasons. 

The number of incidents of lynching in India has been on the rise. Accompanying this overall rise is the rise of mob lynching, particularly by cow vigilantes. At the epicentre of upheaval in the country is the indolent animal cow. While it is sacred and mother-like for the majority Hindus; cow mulching is the source of income for the minority Muslims. Cow vigilante groups or ‘Gau Rakshaks’, following the Government’s ban on cow slaughtering, have been ruthlessly killing those suspected of killing, trading, or consuming beef.

Dadri lynching of 2015 invited huge media attention. On 28-9-2015, the 52-year-old ironsmith was dragged from his house in the village of Bishahra, in the district of Dadri in Uttar Pradesh, after a local Hindu temple announced that a cow, considered sacred by many Hindus, had been slaughtered by him. He was beaten to death, and his son was severely wounded. Later, it came out by forensic reports that the meat was mutton, not beef. (see here) On 18th March 2016, Majloom Ansari, 32 and Imtiyaz Ansari, 12 were taking their cattle to a fair. The mob assaulted them near Jhabar village of Jharkhand. Their bodies were hanged from a tree.  On 25th May 2015 an e-rickshaw driver was beaten by a mob of students of Delhi University who tried to stop two drunk students from urinating in public to which the students (see here). On 1st July 2018, five people, belonging to the Nath Gosavi community, were brutally thrashed by a mob in the remote Rainpada village, about 100 kilometres from the district headquarters, leading to their death. The attack was believed to have been triggered by a rumour about a child-lifting gang being active in the area (see here).  On the night of April 16, Two Sadhus along with their driver were lynched by the mob of around 400 people in the Palghar district of Maharashtra, being conveyed as child-lifters (see here).

For the brutal crime of murder, lynching is just another name. According to experts, the commission of such crimes requires a special environment and a belief system, to overcome the reticence to carry out such a horrifying crime. Such an environment is created when people believe that they have the authority to accomplish this responsibility and cease to recognize the victim as a member of society. The responsibility of representing the entire community, the mistrust in the state’s competence in delivering justice, when supplemented with the rumours initiate an idea that an individual is not killing another individual, but the community is punishing the offender who has violated their self-styled moral and religious sentiments. 

The politicization of this issue knocks up the sense of impunity- a sense that we can do it and can get away with it as the government is with us. It is our government. When a Union minister laurels convicts of a lynching, it gives the culprits a feeling that they have accomplished something great. One when convicted, then given bail and then a minister garlanding the person will certainly add to the sense of impunity and bluster (see here).

Indian Laws and Failure of their Implementation

The criminal laws face a void as there is no law or provision that criminalises mob lynching. Although IPC has provisions for murder, culpable homicide, rioting, and unlawful assembly but there is no provision for a group that comes collectively to kill a person. Under Section 223(a) of Criminal Procedure Code (CrPC), it is possible to punish two or more accused committing the same offence in the course of the “same transaction.” However, the provision falls short of punishing offenders of mob lynching (see here). The National Campaign against mob lynching drafted a Lynching Act, 2017 for protection against violent lynching.

Right to non-discrimination is imbibed in Article 14, which guarantees each person in the territory of India equality before the law and equal protection of laws. Article 15 of the Indian Constitution prevents discrimination of communities based on caste, sex, race, or religion. Incidents of lynching violate the right to equality and prohibition of discrimination enshrined in the Indian Constitution under Article 14 and Article 15, respectively.

Article 21 of the Indian Constitution states, “No person shall be deprived of his life or personal liberty except under procedure established by law.” The objective of Article 21 is to prevent the state from depriving a person of his/her personal liberty and life.

However, the Indian states have failed to implement the laws. The widespread corruption in law enforcement agencies, unconscionable delays in the disposal of cases by the judiciary and the unfair advantages to the rich and the dominance in the judicial system contribute to improper implementation of laws. In almost all of the cases, the police initially stalled investigations, ignored procedures, or even played a complicit role in the killings and cover-up of crimes. Instead of promptly investigating and arresting suspects, the police filed complaints against victims, their families, and witnesses under laws that ban cow slaughter (see here).

Conclusion 

In a civilised society, even one lynching is too many. But India has seen a spate of them recently. The gravity of the situation has made the Supreme Court term it as a “horrendous act of mobocracy”. The Supreme Court has provided guidelines to deal with this situation and has asked the Parliament to make a new law to deal with it which will instil a sense of fear among those who involve themselves in such activities (see here). However, mere laws without proper implementation would not suffice the purpose. The implementation should be accompanied by the proper manner of media coverage. There’s a need for rationalised social leadership rather than a biased political leadership. Politicians must rise above their political intentions.

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