Legal Framework for Mob Lynching in India: A Day Late and a Dollar short
By Pranav Tanwar and Saurabh Pandey
Southern trees bear strange fruit,
Blood on the leaves and blood at the root,
Black bodies swinging in the southern breeze,
Strange fruit hanging from the poplar trees. – Abel Meeropol, 20th century American songwriter and poet
Historians broadly agree that lynching was a method of social and racial control meant to terrorize Black Americans into submission, and into an inferior racial caste position. From 1882-1968, 4,743 lynching occurred in the United States. Of these people that were lynched 3,446 were Black. The vast majority of lynching participants were never punished, both because of the tacit approval of law enforcement, and because dozens if not hundreds often had a hand in the killing.
Similar incidents have been taking place in India for last few years including most recent attack on two men by cow vigilantes in Gurgaon, Haryana and lynching of 24-year-old Tabrez Ansari. With this the number of lynching has reached 266 since 2014. In July, Center of Africa Development and Progress (an NGO) from South Africa raised the issue of increasing number of lynching and hate crimes against Muslims and Dalit in India at the United Nations (UN)’s Security Council 17th meeting of the 41st Regular Session held at the UN headquarters in New York. The Uttar Pradesh State Law Commission has submitted a draft bill to the state government recommending up to life imprisonment for the crime of lynching. The Rajasthan government became the first state to act upon the issue by passing a substantive punitive law on the issue. Further, the Supreme Court issued notice to the Centre and state governments over non-implementation of its guidelines in Tahseen Poonawala case. Though it took more than five years for any substantial action to be taken, there is a long way to go for nationwide curbing measures. This article analyzes the existing national framework of law and concludes with few observations on ancillary measures required to tackle mob lynching.
Indian legal framework
Considering these horrendous incidents, the first and foremost task of our lawmakers must have been to pass a legislation specifically dealing with these incidents. To deal with mob lynching we only have general laws which requires specific ingredients to be satisfied. In general crimes like murder which has been done through lynching, it may be difficult for the prosecution to establish the specific requirements although crime has been committed by the accused. For instance, specific intent to commit the punitive act.
Indian Penal Code, 1860 contains the provision such as Section 302 (punishment for murder), Section 304 (culpable homicide not amounting to murder), Section 307 (attempt to murder), Section 323 (punishment for causing hurt voluntarily) and Section 325 (causing grievous hurt voluntarily). These provisions can be widened to cover the mob-lynching but they do not address the specific requirements associated with these recent criminal acts like group-led act, collective intent, abetment and superior organizational responsibility.
In criminal law special situations need special kind of laws. The crime of mob lynching needs a specific law which can address limitations which arise in our criminal justice system. Also, the defense of multiplicity of laws does not render solution to these problems.
In July last year, the Chief Justice of India opined that these are “horrendous acts of mobocracy” and no person can in any situation take law in his hand. The apex court has even passed a slew of directions in Tahseen Poonawala v Union of India to the concerned authorities to take actions in such kind of incidents including directing the Parliament to frame a specific law. The court comprehending the gravity of the situation directed the government to take various preventive, punitive and remedial measures which included designating a nodal officer (holding rank of Superintendent of Police) of the district. The State governments have to identify the districts where incident of mob-lynching has taken place in last 5 years and advisories will be issued to nodal officers of concerned district. Further, under Section 357A of the Criminal Procedure Code the government is to provide compensation to the victim’s family by framing victim compensation scheme and this should also contain provision of interim relief. Considering the possibility of non-compliance of these guidelines, the court directed that officers responsible for non-compliance will be charged for negligence and this will not be limited to departmental inquiry.
The end to lynching in the USA was brought by civil rights movement with women’s organizations playing a pre-dominant role in it, though migration of Blacks and modern manifestation of racism played an equivalent role in background. Most important highlight in this movement was support of white media to lynching and its justification to preserve social order in south whereas the Black media was the primary force in fighting lynching.
The well-known French political scientist, Christophe Jaffrelot remarks:
The fact that the vigilantes “do the job” is very convenient for the rulers. The state is not guilty of violence since this violence is allegedly spontaneous and if the followers of Hinduism are taking the law into their hands, it is for a good reason — for defending their religion. The moral and political economies of this arrangement are even more sophisticated: The state cannot harass the minorities openly, but by letting vigilantes do so, it keeps majoritarian feelings satisfied. The private armies, which may be useful for polarising society before elections are also kept happy — not only can they flex their muscles, but they usually extort money (violence mostly occurs when they cannot do so, as is evident from the recent cases of lynching).
The authors believe that the way to end present lynching lies in a social movement against the perpetrators. The civil society and international human rights organizations need to take proactive cognizance of the issue to create a hyperactive unending opposition to it. The media houses not underpinned by state bias will need to continuously keep a follow up and research on socio-political actors involved in these heinous offences. Social media will play a very critical role in spreading this information. Most importantly, the involvement of people from majority in tackling lynching will go a long way in success of anti-lynching movement.
Pranav Tanwar is a lawyer based in New Delhi. He is interested in Legal and Political theory and pursues the same through his writings.
Saurabh Pandey is a lawyer based in New Delhi and currently pursuing his LL.M. in Criminal Law.
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