Ayush Agrawal and Shriyaditya Shrivastava
Mob lynching is a barbarous act of community “justice,” where an individual is lynched to death as a form of punishment for the alleged wrong, without the involvement of the legal machinery. Over the years, India has experienced rising cases of mob lynching. However, the same is not recognized as a separate offense under Indian Criminal law, leading to several deficiencies in the prosecution of the act. Several attempts have been undertaken toward the recognition of mob lynching as a separate offense.
Amid this fervent debate, the criminalization of mob lynching under the Bharatiya Nyaya (Second) Sanhita, 2023, proposed to replace the Indian Penal Code, 1860 (“IPC”) is a much-awaited step.
This Article shall attempt to provide a brief background to the causes and need for criminalization of mob lynching in India, the deficiencies in the existing law, a brief overview of the past attempts and proposals towards the same, followed by a critical analysis of the law as proposed under clauses 103(2) and 117(4) of the Bharatiya Nyaya (Second) Sanhita, 2023.
Mob-lynching in India
Lynching is a form of extrajudicial execution by hanging carried out by mob, which is functioning independently of local police and law enforcement authorities. The sociologist, Rene Gigard has defined mob lynching based on a three-point criterion, namely, stereotyping of a crisis, the nature of the accusation, and, the choice of victim. He mentions how stereotypes can be used in times of crisis to generalize assumptions, which can deepen societal differences and encourage aggressive behaviors in people. Secondly, the accusations made against the victim often stem from deeply ingrained societal fears, prejudices, or scapegoating mechanisms. These accusations may not necessarily be based on concrete evidence but are rather influenced by collective anxieties. Finally, he emphasizes the importance of the victim’s choice in mob lynching cases. The victims are frequently chosen because they are seen as deviating from social norms or as indicative of a specific group or ideology. The selection process is intrinsically tied to the dynamics of power, marginalization, and the reinforcement of social hierarchies.
Incidents of mob lynching and mob violence are particularly prevalent in issues pertaining to class, caste, or, community-based differences. At the macro level, fundamental causes include lack of literacy and awareness, years of engrained belief systems, self-proclamation as justice providers, spread of misinformation, fear and superstition, etc. In particular, cow vigilantism and other instances of caste and religion-based vengeance have contributed to the increasing number of cases in India.
Cow vigilantism is one of the major cause of mob lynching under the pretext of protection of the cow. Muslim cattle traders are often targeted in instances such as the Dadri and, Jharkhand lynchings where they are accused of slaughtering a cow based on false information, leading to anger from Hindu mobs.
The lynching of persons marrying in different castes is also rampant. The major victims in such cases are women as it is considered that they have maligned their family’s honour and dignity. One such incident is the Manoj-Babli lynching. Both parties belonged to different castes and eloped for marriage however they were killed by a mob. This incident is also significant because it was the first case in which the court awarded a death sentence to the preparators.
There exists no official data related to the statistics of mob lynching in India. However, reports from unofficial sources reveal an unsettling state of affairs. Not only is the number of cases a grave cause of concern, but also the frequency and intent along with the gruesome manner of conduct.
One of the gruesome incidents of mob lynching during recent times was the Palghar incident, wherein two sadhus, were brutally lynched by a mob based on misinformation spread through social media, falsely accusing them of being child kidnappers. The Alwar incident which relates to killing of a muslim man on a mere suspicion of cow smuggling. This incident was significant to highlight the issue of cow vigilantism and religiously motivated violence in India. The other incident of lynching includes during CAA protest, Dimapur lynching and Singhu Border lynching.
A number of these instances may be the result of momentary impulses under the psychological effect of “mob-mentality.” However, at some level, they also reflect upon the lack of trust in the legal system. Nonetheless, the matter of fact remains that there exists no place for such acts in a democratic nation like India, where each citizen is entitled to an equal right to justice and fair trial. No individual or group can be allowed to take the law into their own hands. Such acts are a threat to the secular and social fabric of India.
Existing Laws and Deficiencies
As mentioned, under the existing law, mob lynching is not recognized as a distinct offense. The perpetrators may be tried for Murder under Section 302 of the IPC or for culpable homicide not amounting to murder under Section 304. Additionally, offenses relating to “hurt” and “wrongful restraint and wrongful confinement” may be applied on the basis of facts and circumstances of the case. These sections may be read in conjunction with Section 34 of the IPC (Common Intention), Section 141 (unlawful assembly), Section 144 (Joining unlawful assembly joined with deadly weapon), Section 146 (Rioting), Section 148 (Rioting with deadly weapon), Section 149 (Offence committed in furtherance of a common aim).
Notably, hate crimes have received recognition under the IPC with the introduction of Section 153A (promoting enmity between groups and acts prejudicial to maintenance of harmony), Section 153B (acts prejudicial to maintenance of national integration), 295A (acts intended to outrage religious feelings), and 295B (words intended to hurt religious feelings). However, these Sections rarely find application in cases related to mob lynching.
The non-recognition of mob lynching as a distinct offense fails to capture the gravity of a religion, class, or caste-motivated offense targeting an individual. The element of “hate” goes unnoticed. It fails to punish those who consider themselves above the law, in violating the rights and very being of a fellow human being. Irrespective of whether such offenders are put to law and punished adequately under the existing law, the criminalization of such acts would stand as a strong testament to the rule of law-based ethos of the nation, a strong deterrent to those who fray in that direction.
Further, the absence of any provision for speedy trial for cases of mob lynching particularly jeopardizes the right to fair trial due to the peculiar issues involved, including a large number of perpetrators and strong socio-economic influences at all levels. In the limited cases that do get reported, delay and prolongation of fair trial can lead to severe miscarriage of justice.
Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 provides that when a member not belonging to a Scheduled Caste or a Scheduled Tribe commits an offense punishable with imprisonment for ten years or more, knowing that the victim belongs to such community, they shall be punishable with imprisonment for life and with fine. Perceptibly, the Act provides protection targeting members of a Scheduled Caste or Scheduled Tribe and do not extend to any other class of persons.
Previous Attempts to Counter Mob-Lynching
In light of the rising number of cases over the years, there have been several attempts to deal with the same. Any discussion on mob lynching jurisprudence would be incomplete without Tehseen Poonawalla v Union of India and Ors. (2018) 9 SCC 501 (hereinafter ‘Poonawalla case’). It laid down a framework of preventive, remedial, and punitive measures to combat mob lynching. The Court in the para 40 of the Poonawallacase laid down guidelines such as appointment of a nodal officer in each district, not below the rank of Superintendent of Police. A special task force had to be put in place to procure intelligence regarding likely incidents. Special emphasis was laid on vigilance. Immediate filing of FIR under Section 153A, IPC was also provided.
The government was directed to issue directives/advisories to the nodal officers, in relation thereof. In fact, the government issued various guidelines in an attempt to curb mob lynching, including the “Advisory addressing the issue of lynching by mob on suspicion of child lifting,” and “Advisory on disturbances by miscreants in the name of protection of cow.”
The Court also directed the governments to come up with a victim compensation scheme. Lastly, punitive measures were provided against officers who failed to comply with these directions, treating them as acts of deliberate negligence and misconduct.
Following this, a private member Bill was introduced by Shehzad Poonawala in the Rajya Sabha, i.e., Protection from Lynching Bill (44 of 2017), popularly known as the Manav Suraksha Kanoon (MaSuKa). The objective of the Bill was “to provide for effective protection of the Constitutional rights of vulnerable persons, to punish acts of lynching, to provide for designated courts for the expeditious trial of such offenses, for rehabilitation of victims of lynching and their families and for matters connected therewith or incidental thereto.”
The Bill under section 2(c) defined lynching as “any act or series of acts of violence or aiding, abetting or attempting an act of violence, whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity or any other related grounds”, while mob is defined under section 2(d) of the Bill as it may be constituted by “two or more individuals assembled with the intention of lynching”. The punishment is given under section 7(c) of the Bill with rigorous imprisonment for life and fine up to 5 lakh rupees.
In line with the guidelines in Tehsin Poonawala, section 5 of the Bill attempted to impose a duty upon police officers to prevent and under section 6 to act against mob lynching, and also provided for punishment for dereliction of duty under section 11. Other notable provisions included establishment of special courts under section 20, rights of victims during trial in section 23, and victim rehabilitation scheme in section 25 of the Bill, etc.
On similar lines, Bills have been introduced in West Bengal, Manipur, Jharkhand, Rajasthan and Uttar Pradesh. However, the Bills are yet to see the light of the day.
Mob-Lynching under the Bhartiya Nyaya Sanhita, 2023
The Bhartiya Nyaya Sanhita was introduced in the Lok Sabha on 11 August 2023. The Bill shall repeal the IPC, 1860 upon enactment. It has currently been referred to the Standing Committee for consideration.
Among other changes, Clause 103(2) of the Bhartiya Nyaya (Second) Sanhita provides punishment for mob lynching. It states, “when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine.”
Further, sub-clause 4 of Clause 117 (voluntarily causing grievous hurt) provides, “when grievous hurt of a person is caused by a group of five or more persons on the ground of his, race, caste, sex, place of birth, language, personal belief or any other ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.
It is pertinent to note that the addition of these provisions along with the erstwhile provisions of “murder” and “grievous hurt” indicates the gravity of these offenses, equivalent to murder and grievous hurt, respectively have been recognized, along with due weight to the element of “hate” involved in a targeted mob-violence.
At the same time, while the punishment for murder under Clause 103(1), Bhartiya Nyaya (Second) Sanhita is death or imprisonment for life and fine, the punishment for mob lynching is death or with imprisonment for life, and fine under Clause 103(2). One may argue that imprisonment of 7 years may not be commensurate with the heinous nature of the offense. At the same time, it provides flexibility to the courts to award punishment in accordance with the role played by the accused in the act of a mob.
It is also noteworthy that, unlike the threshold of 2 or more persons under the previous attempt section 2(d) of the MasuKa, to qualify as mob lynching under Clause 103(2) of the Bhartiya Nyaya (Second) Sanhita, 5 or more persons must be involved in the act. Further, the new provision does not provide a minimum amount of fine to be imposed. In the Bills tabled previously, such as section 8(3) of the Jharkhand Prevention of Mob Violence and Mob Lynching Bill, fines as high as Rupees 25 Lakhs were provided for. Provisions regarding duties and liabilities of officers in relation to mob lynching find no mention. Similarly, victim compensation scheme and victim protection find no mention, which is particularly relevant to grievous hurt resulting from mob lynching. Given the scope of a penal code, steps toward the prevention of mob lynching as envisaged under Tehsin Poonawala and other special Bills are also not present in the Bhartiya Nyaya Sanhita.
In addition to it, despite many calls for classifying mob lynching as a hate crime, the New Penal Code is silent on this aspect. These acts are not only against individuals but also against society because they are motivated by prejudice against a particular group. Hate crimes are a product of intolerance, ideological dominance, and prejudice that ought not to be tolerated. The proactive step to put lynching under the head of hate crimes will help to counter the menace of lynching more seriously.
Conclusion
The criminalization of mob lynching as a distinct offence is a step towards the acknowledgment and recognition of a growing menace to society. However, as highlighted, the Bhartiya Nyaya Sanhita falls short of the necessary framework to curb such acts. Punishment is only one facet of the fight against mob lynching, which arises post the commission of the act. Prevention and strong vigilance are key to putting a check on the same before anything of that nature is allowed to enkindle. The guidelines laid down in Tehseen Poonawala and the provisions of the Bills tabled previously were more intricate in their approach in this regard. Given the limitations of a National Penal Code, perhaps a special law as envisaged in the MaSuKA and other state Bills maybe more effective in countering mob lynching at all levels, i.e., preventive, punitive and remedial.
The authors are a second year student and a fourth year student at National Law India University, Bhopal.
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