Updated: Nov 9, 2020
“It may be true that the law cannot make a man love me,but it can stop him from lynching me, and I think that's pretty important.”– Martin Luther KingJr. Martin Luther King’s words ring in the mind as I try and delve into whether our country requires an anti-lynching the curb the alarmingly rising cases of mob lynching across the nation. TheOxford dictionary describes lynching as an“act of killing(s) done by a mob without any legal authority or process involved.” In the past, lynching usually resulted in the hanging of the accused. The mob would take the law into their hands upon suspicion and would condemn the accused to death without examination (https://blog.ipleaders.in/draft-law-manav-suraksha-kanoon-masuka-national-campaign-mob-lynching/) There has been an alarming rise in number of lynching incidents across India recently. From Dimapur to the lynching of Akhlaq and Junaid that grabbed nation wide attention–the list goes on. 2018 was the worst year – over 30 people have been lynched. From Assam to Bangalore to Ahmedabad, the situation is so grave that the Supreme Court passed a judgment in July, 2018. It condemned the incidents of lynching as “horrendous acts of mobocracy”. (https://www.thequint.com/videos/q-rant/mob-lynching-law-supreme-court-needed) In Tehseen S. Poonawalla v. Union of India3,the Apex Court raised the debate of whether a separate anti-lynching law is required within our criminal law framework. The IPC can cover lynching under provisions like S.302 (murder), S.304 (culpable homicide), S.307 o attempted murder and S.323/325 (hurt or grievous hurt respectively). These provisions can help prosecute individuals. For mob-related offences, the IPC contains provisions like S.34 on common criminal intention, S.141&149 for “UnlawfulAssembly.” Similarly, S.147&148 cover rioting and S.120 Non criminal conspiracy. S.295A covers “deliberate and malicious acts, intended to outrage religious feelings.” In my opinion, these provisions are wide enough to prosecute persons accused of mob lynching. The Supreme Court, in addition, has ordered the police toregister FIRs under S.153A of IPC and other such provisions, as I enlisted above, against the accused. At first sight, clearly our criminal law framework has enough provisions to control the situations within the IPC. Will a new legislation help given the current ones itself are not implemented appropriately? There is no point in bringing a new legislation if the execution of the law that is already in force, or any other future law,is not perfected. Mob lynching can fall under any one of these offences. But what about the proceduralaspect? I will now specifically deal with the Code of Criminal Procedure (hereinafter referred to as CrPC).Are existing CrPC provisions sufficient or do we need new provisions? Is it a lack of provisions or lack of implementation? I believe it is a lack of proper prosecution and investigation. Chapter X of the CrPC deals specifically with “UnlawfulAssemblies”and confers power on the police under S.129, and other certain armed forces under S.130 & 131,to disperse assemblies. The police must be compelled to registers FIRs only lynch mobs under S.154 of the CrPC, like they would for any other cognizable offence. Any act done in within the mob, as those mentioned earlier under theIPC,can be registered as cognizable offences under this provision. With calls for an anti-lynching law rising, youth leaders led by Tehseen Poonawalla, formed the National Campaign Against Lynch Mobs, and proposed a draft of the Maanav Suraksha Kanoon (MASUKA)- a legislation framed to address the menace (https://www.thequint.com/news/masuka-unveiled-anti-lynching)
MASUKA defines ‘lynching’,‘mob’and 'offensive material’. The draft aims to make lynching a non-bailable offence with severity of punishment depending on the injuries sustained by the victim.It also sought to make ‘dissemination of offensive material’ a separate, chargeable offence. MASUKA provides more accountability in cases of lynching and where the police action may not be appropriate or satisfactory. It has a dedicated Chapter(ChII) on the‘Duties of Police Officer & District Magistrates.’ We, however, cannot ignore the political scenarios tha influences decisions such as introducing legislations as MASUKA;most lynchings have a political angle. Examiningthe suggestions made by the bench headed by Chief Justice Dipak Misra in his judgment dated 17th July 2018 - all State Governments are supposed to designate a senior police officer, not below the rank of Superintendent of Police,as Nodal officer of each district. These Nodal Officers have full discretion to use the powers conferred to them byS.129 (use of force) of the CrPC when, in his opinion, the mob is likely to cause violence of lynching through vigilantism or otherwise. The police must register FIRs under S.153A of IPC (or any other relevant provisions) against persons who spread irresponsible/false messages and videos which has content likely to entice a mob and/or lynching of any kind. If it comes to the notice of local police that a mob lynching or violence has happened, the jurisdictional police station must lodge a FIR immediately by charging the accused under the relevant IPC provisions. From a procedural perspective, the Nodal Officer appointed is bound toensure that investigation is carried out smoothly and the chargesheet is filed within a reasonable period from time of registration of FIR or arrest of the accused. The police, under S.149-151 of the CrPC, has the power to take preventive action whenever it becomes aware of any information of a possible cognizable offence.The police have power to arrest anyone under S.151if it appears that the commission of the offence cannot be prevented other than arrest of theperson. Under S.174, if an officer receives information of a person who has died under “suspicious” or “unnatural” circumstances, the officer is empoweredto give intimation to the nearest Executive Magistrate and hold inquests about the incident. The police may report upon the cause of death, describing wounds and the manner in which those wounds were inflicted. It can be then decided whether the incident requires further investigation. In Tehseen S. Poonawalla v. Union of India, the Apex Court suggested trial by Fast Track courts. The trial should be ideally concluded six months from the date of taking cognizance. Upon dissatisfaction of trial since certain courts, S.406 & 407 of the CrPC can be invoked. These provisions confer power onto the Supreme and High Courts to transfer cases and appeals subject to certain conditions. These provisions, along with the Supreme Court direction, can help in faster and better delivery ofjustice. S.218(1) allows for separate charges for every distinct offence, which is useful in mob cases. S.223(a) of the CrPC allows for charging person accused in the same offence occurring in course of the transaction. This provision is evidently applicable for lynching cases. S.220(1) allows for trial for more than one offence if a series of acts connected together form a part of the ‘same transaction.’ Usually,a mob has so much commotion that sometimes the prosecution may be unsure as to which offences has been committed by the accused. The CrPC has provision for such a scenario; S.221(1) can be invoked to chargethe accused for several offences or any one of theseoffences. S.357A of the CrPC is a relevant provision with regard to compensation. In my opinion,this is one aspect where are reform could be particularly helpful in mob violence and lynching cases. Compensation of victims is a major theme. Rehabilitation of the victims and their families is as important as ensuring that mob lynching iskept under control. S.357A deals with ‘Victim CompensationScheme’. Procedurally, this is one area where I believe a specific legislation on lynching may help. Compensation provided to victims is often not sufficient. For instance, in Rajasthan, the Vasundhara Raje government was heavily criticised for providing meagre compensation to the family of Rakbar Khan (the victim) in the infamous ‘Alwar Lynching Case’.An offer of just Rs.1.25 lakhs created serious questions on delivery of justice tovxctim’s families. Although S.357A exists,a clear compensation scheme for next of kin in lynching cases would help provide fair justice.( http://www.newindianexpress.com/nation/2018/jul/28/alwar-lynching-meagre-compensation-by-rajasthan-government-slammed-1849722.html)
S.23 of the draft of Prevention From Lynching Act, 2017, specifically says “in no case of death caused due to lynching should the compensation given be less than 25 lakh rupees.” S.357A gives discretionary power to the State Governments to provide any amount of compensation and as seen in the Alwar case,these amounts are never nearly enough. Therefore, the CrPC can amend S.357A on this point. The Supreme Court also asked State governments to have a provision that provides “interim” relief to the victim(s)within 30days of the incident.
A new legislation would not delve into the question of why these lynchings take place or how they could be stopped. Instead,it may only provide a way for easier prosecution.And if that is all we seek to achieve through a new legislation,I believe the existing provisions in the IPC and CrPC have enough to prosecute the offences that come with mob violence/lynching. The issue in India has never been lack of legislations;but a lack of proper implementation and this holds true in mob lynching cases as well. Therefore,we must focus on impartial investigations, robust prosecutions and additionally constant judicial monitoring. If prosecutions succeed,we may have a change.If they do not, further violence and impunity will continue. (https://www.firstpost.com/india/supreme-courts-order-on-mob-lynching-is-strong-but-new-law-will-be-useless-as-long-as-existing-rules-arent-