In a crisply worded dictum delivered by an assorted bench of judges comprising Chief Justice Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud, the Supreme Court on Tuesday bemoaned the “horrendous acts of mobocracy” that have besieged the tenuous political terrain of the subcontinent in recent months and years. Central to this obituary of the “pluralistic social fabric” of India is the curiously devastating phenomenon of “men becoming law” unto themselves. Its malady, the court glowingly held, is to “regulate social behaviour” where the law is the “foundation of a civilised society.”
To this end, the judgment exhorts the Parliament to enact a law against mob lynching and directs governments at the state and central levels to take putative measures against such activity. The judgment is exceptionally cognisant of the ingenious modalities that lynching has taken in the contemporary moment and so criminalises incitement to lynching through the proliferation of bombastic information by channels of social media, or what we have come to creatively call ‘fake news.’ Ethically, the fixture that all law must negotiate, the judgment reads the criminalisation of lynching under Section 153A of the Indian Penal Code which prohibits the promotion of enmity between different groups on grounds of religion, creed, and suchlike. In its lettered wisdom, the judgment designates the application of the rule of law as the panacea for and against lynching, and this it purportedly envisions in the creation of fear of the law in the minds of men.
The act of lynching, lest it be forgotten, is not as simple as murder – it is a public spectacle committed against a victim whose crime is as fictitious as allegorical. In India’s present political situation, lynching has never been as divorced from communalism and religious identity as the formalism of legalese would like us to believe – in incident after incident, it has appeared but evident that lynching is an act of persecuting religious minorities or individuals of subordinate castes for transgressions, real or imagined. This is orchestrated with the complicity, sometimes even active participation, of the police and other forces of law and juridical order. It is a transgression of the law, and the judgment is quick to read the act of lynching as its be-all and end-all; lynching becomes a problem of the temporary dissolution of law and order, and its remedy, thus, is the reinstatement of law. The frame of Section 153A of the IPC to the judgement is similarly problematic for its emphasis on prohibiting only overt enmity, especially if it leads to violence. More productive, perhaps, would have been the privileging of Article 15 of the Constitution for its wide-ranging critique of discrimination and alienation. Furthermore, the law presupposes that only it can foster the constitutional morality that keeps a man from lynching another.
If one were to look beyond these dialogues within the law, however, lynching ceases to be a transgression or a lapse in the law but the climax of a particular configuration of politics whose programmatic purpose ever since its elevation to power has been the relentless targeting of the ‘Muslim’ in both rhetoric and practice. One is not arguing that Muslims are the sole victims of lynching as it has presented itself; indeed, instances of lynching citing ‘rumours’ of abduction posit that lynching be seen as a phenomenon whose implications for democratic politics are more debilitating.
It is, thus, not a problem of law and order that only the law can quell, but a crisis of democracy. The law can only imperfectly create fear in the minds of men because the minds of men are made before the force of law. Hindutva may appear to manifest itself in gruesome acts of lynching by mobs, but it has become India’s social and political script, evident in the everyday and the quotidian. This is not to idealise an earlier moment in the political history of an India which has always already been Hindu, but to underline how the militant pulverisation of Hindutva emboldens the performance of communal hatred, apparent in the impunity that perpetrators of lynching continue to hold. Hindutva has everyday faces, and when we humour former vice president Hamid Ansari’s expression of unease and insecurity as a Muslim in India today, we do so at our own peril.
The “quintessentially secular ethos” of India that the judgment blandly valourises is waning, if it ever existed at all, and the law cannot alone reclaim it. In Hindutva India, lynching is not an aberration of law but the culmination of political reality – it is a political crisis whose resolution exists within politics but beyond the law, in the inculcation of the habits of democracy and not by policing a morality that never emanated from the law in the first instance.
Updated Date: Jul 19, 2018 07:30:46 IST