In recent times, there has been a spate of incidents in the country resulting in the loss of livelihoods, injuries and even death of persons at the hands of lynch mobs for various reasons, although mob violence in the name of cow protection rose considerably. These incidents became so frequent that the Supreme Court in September 2017 directed all state governments to take measures to prevent vigilantism in the name of cow protection.
According to author Robert L Zangrando, "Lynching is the practice whereby a mob — usually several dozens or several hundred persons — takes the law into its own hands in order to injure and kill a person accused of some wrongdoing. The alleged offence can range from a serious crime like theft or murder to a mere violation of local customs and sensibilities. The issue of the victim's guilt is usually secondary since the mob serves as prosecutor, judge, jury, and executioner. The due process of law yields to momentary passions and expedient objectives."
The author pointed out that lynch law originated during the American Revolution with Col Charles Lynch and his Virginia associates, who responded to unsettled times by making their own rules for confronting Tories and criminal elements. "'Lynching found an easy acceptance as the nation expanded. Raw frontier conditions encouraged swift punishment for real, imagined, or anticipated criminal behaviour. Historically, social control has been an essential aspect of mob rule," Zangrando wrote.
Despite the Supreme Court direction, lynching or vigilante violence hasn't abated. On the contrary, more incidents have been reported from across the country. Majority of these attacks were carried out in name of cow protection. However, lynching incidents have also been reported on festive occasions like Ram Navami (Bihar and West Bengal), or violence was unleashed over the offering of namaz (Gurugram), and against people simply for "looking" too much like Muslims on trains (Uttar Pradesh and Haryana).
More recently, people have been lynched over rumours of child trafficking circulated through social media and messaging apps (Assam, Gujarat and Tripura). Unfortunately, the common thread in most of the cases of lynching has been rumour mongering, many a time through messages circulated on social media where the frenzy of the mobs has been ignited without any attempt being made to verify the authenticity of the allegations.
At present, there is no law under which lynching or mob violence is defined and classified as a punishable act. The term ‘lynching’ is not defined in the Indian Penal Code and any such case is usually filed under Section 302 (murder), 307 (attempt to murder), 323 (causing voluntary hurt) 147 (rioting), 148 (rioting armed with deadly weapons) and 149 (unlawful assembly). Further, Section 223 (a) of the Code of Criminal Procedure (CrPC), 1973, sanctions, "persons accused of the same offence committed in the course of the same transaction can be tried together."
The Code of Criminal Procedure (CrPC), 1973 is silent on the rehabilitation of victims. Lynching being a crime results not only in bodily injury but also psychological injury, material injury and loss of earnings. It must be the prerogative of the government to provide rehabilitation to the victims of the crime. The present provisions are inadequate and fail to provide an adequate legal framework for prosecution of perpetrators and rehabilitation of victims or their next kin.
Last year, a group of lawyers and activists came together and drafted a bill called Protection from Lynching Act, 2017. The drafting committee was chaired by Sanjay Hegde, senior advocate, Supreme Court of India, and members included Anas Tanwir Siddiqui, advocate and professor Aporvanand among others. The draft bill defined the act of lynching as “any act or series of acts of violence as extrajudicial punishment, whether spontaneous or planned, committed to inflict summary punishment, or as an act of protest upon a person(s) caused by the desire of the mob to enforce any societal & cultural norms/ prejudices". It also defined mob as "a group of two or more individuals, assembled with an intention of lynching" and proposed to make lynching a non-bailable offence.
The bill also proposed timebound enquiry into the incident. It proposes, in cases where a charge sheet is not filed within a period of three months from the date of registration of the FIR, the case shall be reviewed by a nodal officer, who may pass orders for a fresh investigation by another officer not below the rank of the deputy superintendent of police, when he or she is of the considered opinion that the same is necessary.
The bill also sought special courts for trial of cases of lynching, with a right to the victim or his/her next of kin, to avail legal aid and be heard at any proceeding in respect of bail, discharge, release, parole, conviction or sentence of an accused. Further, the draft bill moots for fixing of responsibility of public officials for failing to prevent such incidents and rehabilitation of the victim and his kin. The bill proposes that the state government shall provide compensation to the victims within 30 days of the incident, in case the death of a person has occurred as a consequence of lynching.
Martin Luther King, Jr. at Southern Methodist University on 17 March, 1966 said, "It may be true that the law cannot change the heart, but it can restrain the heartless. It may be true that the law can’t make a man love me, but it can restrain him from lynching me, and I think that’s pretty important also. So while the law may not change the hearts of men, it does change the habits of men. And when you change the habits of men, pretty soon the attitudes and the hearts will be changed. And so there is a need for strong legislation constantly to grapple with the problems we face."
The need for the anti-lynching law has gained considerable traction from the public at large and was raised by some MPs in Parliament. However, the government ruled out any need for anti-lynching law or amendment and stressed that existing laws could deal with the crime. Nevertheless, the recent incidents in Ahmedabad, Tripura and Assam have only buttressed the need for anti-lynching law and creation of a dedicated framework for the prevention of such incidents, investigation, trial and rehabilitation of victims.
The New York Times dated 29 June 2018 reported senators Cory Booker, Tim Scott and Kamala Harris introduced a bill that would make lynching a federal hate crime punishable by life imprisonment. In the United States, from the 1800s to the late 1960s nearly 200 anti-lynching bills were introduced in the US Congress. None of them was approved due to social prejudices and strong opposition from the southern states of the union. According to Tuskegee University records, 4,743 people killed by mob violence between 1882 and 1968. The US Senate on 14 June, 2005 apologised to lynching victims, survivors and their descendants.
The Supreme Court on 3 July reserved its order on a string of writ petitions filed in response to the rising issues relating to cow vigilantism. According to a report on Live Law, Chief Justice of India Deepak Misra during the hearing remarked that "members of any concerned group cannot take the law into their hands…even if there is no law, they are nobody..."
The government should take note of rising incidents of lynching and consider passing a law to curb the growing menace of mob violence as present provisions of the law do not adequately address the issue. Incidents of lynching and mob violence pose a direct challenge to the rule of law and the administrative system of the nation. Lynching has no place in a country and society which takes pride in being a democracy and cherishes the rule of law. Therefore, incidents of heinous and despicable mob violence need to be stringently dealt with.
The author was a former legal consultant at the Enforcement Directorate and currently practices law in New Delhi. He tweets @udayantandan.
Updated Date: Jul 06, 2018 07:17:57 IST