Vigilantism – Establishing The Hate Dynasty

Bhaiyyalal Bhotmange’s wife and daughter, over a land dispute, paraded naked, sexually abused and murdered – Khairlanji Massacre, 2006.

Mohammad Akhlaq and his son, accused of stealing and slaughtering of a cow calf, atrociously lynched with stones, trashed till dead – Dadri Lynching, 2015.

‘Pehlu Khan along with 14 others, accused of cattle smuggling beaten black and blue’ – Alwar Rajasthan Lynching, 2017.

‘Ravindra Kumar, e-rickshaw driver, brutally lynched by DU students, accused of stopping a student from urinating in public area’ – Delhi Lynching.

And many more introducing an all new level of a court outside court system, quite often known as Vigilantism, establishing the New Hate Crime Dynasty.

The term “mob” denotes to a crowd, body or mass. The act of punishing, torturing or killing a person without the due process of law, by an exasperated group of people in the belief that the punished person has done wrong, is known as the act of mob lynching. The severity and violence involved in this kind of act is up to such an extent which leads to taking up of hasty decisions and thus, presuming the person to be an offender. After such presumption the provoked group tends to administer the justice itself without any trial before the courts. It is a scenario where people themselves become the court for the purpose of punishing the person without referring to the actual court of law. A code of conduct has been laid down for the citizens by the laws. The very essence of these existing laws is that they are formed for maintaining harmony and peace within the country, to avoid the chaos while rendering justice to the people in a proper manner through the procedure laid down.

To put it in other words, lynching by the mob ‘is premediated extrajudicial killing by a group. It is often used to characterize informal public executions by a mob in order to punish an alleged transgressor, or to intimidate a group. ’The evolution of this hate dynasty has been first witnessed by the Americans. The term ‘lynching’ having an American origin attained popularity during the 19th century in its land. Nearly 3500 cases have occurred in America during the period 1865 to 1920. These movements were mostly against the ‘blacks’ and were not relatively spontaneous acts of violence but born out of political intentions. The highlighted purpose was to enforce the white supremacy and dictating the African-Americans after the end of civil war. This establishment is seen in other countries as well. India being our concern, is witnessing a drastic growth in its practice. The blame game is always played between the communal groups, politicians, police force and the judiciary. However, without an iota of doubt, there is a need to understand the crux of this hate crime and why it is allowed to become ‘the new normal’.

Reasons of Mob Lynching

1. Rising intolerance and polarisation: Low tolerance level of accepting the acts or behaviour of others and polarisation is becoming the first step towards lynching by a mob. These people take law into their hands to punish the presumed offender.
2. Lack of Police action: Police officers play a vital role and due to ineffective investigation procedure on their part, this crime is rising.
3. Lack of speedy justice: Inefficiency on behalf of apex justice rendering authorities is one of the main reasons which leads to no fear of the consequences even by taking law in their own hands, because there is belief that the authorities are ineffective.
4. Communal Concerns: Cow vigilantism is the crux of increased lynching practices.
5. Support from Politicians, Government and communal groups: Indirect support from the government, politicians and communal groups has added fuel to the fire.
6. Religion atrocities and lacuna in judiciary is another reason which add to the agitation of the people at large.
7. Unreported cases: Sometimes in the first-place, many cases go unreported which again amounts to the increasing level of dissatisfaction amongst the citizens due to the lack of efficient working on the behalf of the authorities.

The Law - The Need Of The Hour

What We Have

As India has witnessed lynching by mobs in n no. of ways by now, that it is being considered as ‘the new normal’. Although lynching, simply put, is murder yet it has not been mentioned anywhere in the law of the land. It is a criminal offence but still it has not been incorporated under the Indian Penal Code. However, it has been related to certain provisions of the Code which are as follows:

1. Section 302 and Section 304 provides for the punishment for murder and punishment on culpable homicide not amounting to murder respectively.
2. Section 307 gives punishment for attempt to murder.
3. Section 323 and Section 325 states provisions for causing voluntary hurt and punishment for it respectively. It is pertinent to mention here that the above laws in order to be qualifiedly used on mobs, shall be read with other provisions of the IPC as stated below:
4. Section 34 defines common intention
5. Section120B provides for criminal conspiracy
6. Section 141 is for the unlawful assembly which is an assembly of five or more persons.
7. Section 149 states that every member of unlawful assembly guilty of offence committed in prosecution of common object.
8. Section 147 rioting and 148 provides us with the definition as well as the punishment for an offence of rioting, being armed with a deadly weapon Section 302 read with Section 34 can be imposed on the entire mob for the offence of murder. It is applicable to not only those who physically make actions but also to persons who were the part of the mob having common intentions. Similarly, section 120B shall be imposed on those group of people involved in planning and instigating the mob by spreading the word like on Whatsapp.

Furthermore, Section 223 (a) of the Criminal Procedure Code, says, “a person accused of the same offence committed in the course of same transaction can be tried together. ” But it is still unclear about how such people will be tried and the retribution thereof.

Why it is Not Enough

It is quite evident that lynching is not specifically mentioned in any provision of the IPC. It has become a get-away gate for the offenders to commit a crime in a mob and not be prosecuted severely. This crime has seen growth in past few years. Insufficient codified laws make delivering justice next to impossible. It is however pertinent to understand that under no circumstances, mobocracy could be appreciated. A group of persons, in the name of justice cannot take over the powers of the judicial body. In other words, no citizen can take law in their hands. Mob lynching is a practice of committing a crime to provide justice for an already committed crime. Such practices cannot be encouraged. By not having any special laws, we’ve been deprived of provisions for compensation, rehabilitation schemes and speedy justice. No actions against police’s inaction could be done. Hence it is pertinent to treat mob lynching as a crime against the state which creates a need of slipping it into the IPC. Another important factor demanding for new laws is that the current laws require a lot of provisions to be applied in one go making it a quite lengthy procedure. To put it in other words, new laws will help in filling up the void in our criminal jurisprudence.

Efforts Made By the Citizens

Apart from the legal provisions provided by the Indian law, there have been certain initiations by the public as well to restrain mobs from committing this offence, which are:

‘Not In My Name Movement’, started by a large no. of people protesting against lynching by mobs. People through this movement protested against the mobs and urged them to refrain themselves from committing this horrendous crime in their name. For example- often mobs when lynch a muslim or a person of any other community for cow consumption, they often justify their actions by saying that they did it for the sake of hindu’s integrity.

Manav Suraksha Kanoon by the National Campaign Against Mob Lynching, launched on 5th June by the young leaders of the country, also known as the MaSuKa is the proposed law by the Campaign, being the brainchild of activits Tehseen Poonawalla, Dalit Leader Jignesh Mewani, JNU Vice-President Shehla Rashid, former JNU President Kanhaiya Kumar and spokesperson of Samajwadi Party Pankhuri Pathak. The drafting committee of the Campaign is headed by the Supreme Court senior advocate Sanjay Hedge who has prepared a draft bill known as Masuka along with the other drafting committee members. The agenda of the campaign is to pressurise the government to take an immediate action against this crime. It is contended by this committee that the current laws are insufficient and hence there is need of new and consolidated law.

What the MaSuKa – The Protection From Lynching Act, 2017 has to serve?

The scope and objective of this act inculcates the Constitutional rights of the vulnerable persons. It provides for punitive measures, role of the police and magistrate, institution of special courts, rehabilitation of victims and their family The act provides for the definition of lynching and mob which is:Lynching is defined as “any act or series of acts of violence, whether spontaneous or planned, committed to inflict extra-judicial punishment, or as an act of protest and caused by the desire of a mob to enforce upon a person or group of persons perceived legal, societal & cultural norms/prejudices”. On the other hand, mob is termed as “a group of two or more individuals, assembled with an intention of lynching”. Another important definition mentioned in the act is the victim, who is “any person, who has suffered physical, mental, psychological or monetary harm as a result of the commission of any offence under this Act, and includes his or her relatives, legal guardian and legal heirs of a deceased victim”.

Apart from the definition following aspects are been covered by the drafter bill:

1. Chapter II and III lays the duties of the Police Officer and District Magistrate, the duty to prevent lynching and power to exercise authority against mobs.
2. Chapter IV and V gives offence and punishment for lynching which includes conspiracy, abetment, obstruction of legal process, dissemination of offensive material and dereliction of duty by police officer or district magistrate.
3. Chapter VI provides for the investigation, prosecution and trial.
4. Chapter VII inculcates the duty to provide compensation and Chapter VIII has the provisions for appeal.

The act leaves a room for potential misuse and has some procedural issues. It has witnessed some ambiguity in the definition of lynching. It is recommended to keep act in consideration. With some technical corrections it can provide a new juncture for this new normal crime.

Requirement Of A New Law

Supreme court in its recent judgement has laid down, “the intolerance towards the horrendous acts of mobocracy and that it cannot become a new norm, along with guiding the state and central governments to curb it with an iron hand by making preventive and remedial measures”. For the incorporation of the provisions for mob lynching, following measures are recommended:

1. Insertion of new clause in IPC – Out of the numerous steps and approaches required to control and rather prevent this deep-rooted social evil, this is one essential approach. IPC must include a definition clause clearly defining the offence. It must provide punishment for the same. Insertion of new clauses in the existing statutes, often face a lot of criticism. However, the SC in its latest judgment in the case Tehseen Poonamwalla v. Union Of India, has made a call for a special law to deal with lynching. Taking an instance, Section 302 on one hand, deals with punishment of murder, inserted in IPC way back. While on the other hand, Section 304B deals with the dowry death. Here it is pertinent to mention that dowry death means murder for dowry or to some extend it can be abetment to suicide, i. e. , Section 306, for the same reason. Had Section 302 and 306 been adequate enough to control this evil practice, no special insertion of Section 304B would have been made. Similarly, inserting a separate clause specifying the deaths caused by an act of agitated crowd, which is also an offence against the state would be helpful in better understanding of this offence and would be an awareness to those who aren’t afraid of taking laws in their own hands.
2. Making of a Special Act – Hallmark of democracy is communal harmony. Increasing incidents of mob lynching has led to the public disorder. Without having a provision under the ipc for this crime, there can be an act for its prohibition. Thus, making of a specific legislation helps in
• Maintaining this public tranquillity,
• Controlling the continuance of this crime,
• Rendering the speedy justice to the victims and ensuring the fast tracking and monitoring of the cases
• Filling the gaps created due to the inadequate hate crime laws,
• Addressing a proper mechanism and role of police functioning,
• Procedure for trial of such cases
• Punishments to the offenders
• Rehabilitation to the victims
• Compensation to the victims and their family.

For example - Sati Prohibition act was introduced as a special act to eradicate its practice. However, sati is not mentioned anywhere in the Penal Code.

3. Insertion of clause and making of an Act – Other step which can be taken is both inserting a separate clause in the Indian Penal Code and making of a special act so as to fully contribute towards eradicating this crime. Adding mob lynching to the IPC will declare the offence as an offence against the sate while imposing punishment. An act will help in other aspects like laying of duty of police officers and magistrates, rehabilitation, compensation, procedure for trial and etc. For instance, in IPC section 354 deals with the punishment of sexual harassment and acts related to it have also been laid down. Also, section 498A deals with cruelty also explicitly prohibits dowry and still there was a need for the Dowry Prohibition Act. On similar lines, a separate clause and act for preventing mob lynching can be laid down.

Suggestions As Laid Down By Supreme Court

Following are some of the suggestions and measures laid by Supreme Court in the case Tehseen Poonawalla v. Union of India.

1. Supreme Court has recently laid down how intolerant the horrendous acts of mobocracy should be and that it shouldn’t be allowed to become a new norm.
2. State and Central govt’s to take measures to stop the citizens from taking law in their own hands, because it is contrary to the paradigm of established legal principles.
1. Preventive measures like, role of police is highlighted and ordered the state to designate an officer of SP rank as a nodal officer in every district for the very purpose of controlling the violence created by mobs. This creates awareness about the strict actions which can be taken against citizens who get involved in such crimes.
2. Process of identifying the districts/ villages/ sub-divisions where instances of lynching and violence by mob have been reported in the recent years, by the state Governments.
3. Remedial measures- immediate lodging of F. I. R by a jurisdictional police station without any delay. Nodal officer shall be intimated by the SHO and should personally monitor the investigation.
4. Compensation schemes for providing interim relief to the victims should be laid down by every state facing this problem.
5. If Fast Track Courts deal with the cases of lynching, efficient and quick remedy would be provided to the victims. The reason behind this is, these courts would specifically focus upon the issues of lynching and thereby reduce the burden of other courts as well. Preferably to be concluded with the time span of 6 months.
6. Punitive measures- non-compliance with the directions of the court by police would amount to a deliberative negligence.
3. Asking the respective govt’s to broadcast the serious consequences to be faced of practicing mob violence and lynching, through radios etc.

Conclusion

To sum it up, Mob lynching is a crime not only against the victim but the State. Crime against a crime (though not proven guilty) is inhumane and extirpates the harmony of the society. Every attempt shall be made to rule over this horrendous crime. The duty to maintain harmony in the society is not only imposed on the state but to the citizens of this country as well. It is quite bluntly clear that no person shall take the laws in their hand, be it an individual or a mob. There is a thin line between protest and mob lynching and no reason shall suffice their actions and every such act shall be punishable. It is recommended that the current laws in hand are insufficient. Having proper laws will encourage its prohibition, provide rehabilitation and compensation to the victims and duties over the police officer and the magistrate.

Another recommendation is that MaSuKa must be given due consideration by the government. Corrections in some of the technical errors of its laid procedures can become a new stepping stone to bring up a change in ‘the new normal’Hence, to stop from having more Bhotmange, Akhlaq, Pehlu Khan and many more, it is the time to ‘drop vicious justice and establish hormony’ to prevail over the establishment of the Hate Dynasty.