This article has been authored by Soorya Mariya Kurian and Aisha Beevi Azeez, students of Government Law College, Kochi, Kerala.
“You must not lose faith in humanity. Humanity is an ocean; if a few drops of ocean are dirty, the ocean does not become dirty”.
- Mahatma Gandhi
Lynching is the practise whereby a mob- usually several dozens or several hundreds of persons- takes the law into its own hand in order to injure or kill a person accused of some wrong doing. The alleged offence can range from a serious offence like theft or murder to mere violation of local customs and sensibilities.[i] In such a situation law becomes secondary and the mob serves as the prosecutor, jury, judge and the executioner. The term ‘Lynching’ originated during the American Revolution, where the verb comes from the phrase ‘lynch law’ a term for a punishment without trial. Two Americans during that era are generally credited for coining the terms: Charles Lynch (1736-1796) and William Lynch (1742-1820), while most of the historians believe that the former has used it, to describe extra judicial authority assumed by private individuals.
Mob lynching can be considered as the ‘Crimes against Humanity’. The ‘Crimes against Humanity’ is a well-defined codified term in the Rome Statute[ii], the treaty that established the International Court of Justice. Incidents of mob violence and lynching pose a serious threat to the rule of law and the administrative system of the nation.
India being a secular democracy where all religions and faith have thrived, has come under the serious threat of mob lynching in recent years. Although the term is of foreign origin, yet for past few years this isn’t an alien to the country. The very secularism and other characteristics like unity in diversity which possess an image for India globally, is at stake due to this new mode of epidemic. However, the approach and actions from the legislature, executive and the judiciary to mitigate this crime has not descended the crime rate. Rather, there has been an escalation in lynching cases reported in the country. It has become a new norm and has disrupted the fabric of our society.
Ever since 2014, the country has witnessed high escalation in mob attacks particularly targeted ones, which makes it more dreadful. The 2015 Dadri mob lynching is a sensational case where a mob of villages attacked the home of 52-year-old Mohammed Akhlaq, killing him and seriously injuring his son named Danish, for suspicion of slaughtering a cow. The act of racial attacks against the Nigerian Students who were suspected to be drug peddlers, the killing of Abhijit and Nilotpal in Karbi Anglog district of Assam on suspicion of being child lifter; the Palghar mob lynching are all examples of how human life is made mockery by fellow human beings.
The government imposed a ban on the sale and purchase of cattle for slaughter at animal markets across India in 2017, under the Prevention of Cruelty to Animals which sparked a new wave of cow vigilante in the country. Even though the Supreme Court suspended this ban there was a rise in attacks on Muslims accusing them as beef eaters. The term ‘lynching’ has not been defined under any laws in India and generally the crime is reported under Sections 302 (Punishment for Murder), 307 (Attempt to Murder), 324 (Hurt), 147 (Rioting) of The Indian Penal Code 1860. The very crime is a flagrant violation of Articles 14, 15 and 21 of the Constitution which outline the major fundamental rights enshrined under the Constitution of India. At this juncture it is quite evident that there has been no mention about the crime ‘lynching’ in any of the codified laws in the country. Due to lack of codified laws delivering justice has become inappropriate and impossible. It also deprives of the provision for compensation, rehabilitation schemes and speedy justices. It is also pertinent to note that the no action can be taken against the police or State’s inaction by the judiciary. In other words, a very well codified law is in high need for this crime against humanity which can mitigate this dreadful epidemic from our society.
The Honourable Supreme Court in 2018 case of Tehseen S. Poonawalla[iii], described lynching as a ‘horrendous act of mobocracy’ and laid down certain guidelines and regulations to be followed by the Centre and State governments to frame laws in regard with this crime against humanity. In pursuance of this judgment the Manipur government came up with its first law against lynching in 2018.
Examining Lynching at the global level : From Emmett Till to George Floyd
In the year 1955, a fourteen-year-old boy had gone to a grocery market where he was alleged to have whistled at the shop owner’s wife Carolyn Bryant. The enraged white lady testified that the black boy had made unwelcome sexual advances to her, grabbing her hand and asking her out for a date. However, this was totally denied by the witnesses in the shop. Long story short, days after the incident, the boy’s body was recovered from the Tallahatchie river. The body was found tied to a 70-pound fan.
August 28, 2020 marked the 65th death anniversary of the horrendous lynching of this black American boy Emmett till which propelled the Civil Rights Movement in the USA. Till’s murderers were held scot free by the white jury of US. Years later Carolyn Bryant confessed that the whole allegation raised by her against young Till was nothing but hoax.
USA has seen not one but many Emmett Tills. The last time the country saw him was at Minneapolis on 25th May, 2020, imploring for life under the knees of white police officer Derek Chauvin, who choked him to death.
The origin of Lynching in USA can be traced back to as early as the 1800s.A spike in the number of lynching cases was noticed in the closing years of the nineteenth century especially in 1892.These lynching cases had close proximity with the ethnic dichotomy in the northern and southern USA. Post American Civil war saw lynching of many Black Americans. But it is dismaying that the nation has flagrantly failed in every attempt of enacting an Anti-lynching legislation. It was in 2018 that The Justice for Victims of Lynching Act presented by three black members of US Senate including the Indian origin Kamala Harris, Democratic Vice-Presidential nominee for the 2020 election. The Bill, which sought to amend title 18 of US Code to specify lynching as a deprivation of civil rights made headway through the upper house, and was unanimously passed at the Senate but died as it wasn’t passed by the House before the 115thCongress.
The revised version of the instant act made a re-entry at the Congress as the Emmett Till Antilynching Act in February 2020.Though the Act jostled its way through the House of Representative this time, it fell short of unanimous passage in the Senate owing to the disapproval of Sen.
The diary entries that made the world weep –Anti Semitic lynching
No one would ever forget the memoirs of Anne Frank addressed to her imaginative friend Kitty. It was these diary entries that opened to the world the ruthless Anti-Semitic torture endured by the Jews in Nazi Germany. The Nazi eugenics or the selective breeding of Nordic (Aryan) traits by eliminating other races was spine-chilling and beastly. Anti-Semitic lynching has again raised its hood, this time in USA. The 2018 Pittsburgh synagogue attack exposes the remnants of anti-Jew sentiments existing among the white supremists.
Lacunae in Indian Laws: An Analysis
The year 2016 has seen a 75% increase in the lynching cases particularly cow slaughter, which makes it the highest since 2010. For thwarting persecution against religious and caste minorities, India would require an exclusive and robust legal mechanism.
At present, there is no codified law against Lynching in the country. These acts of lynching is penalised under the provisions of Indian Penal Code (IPC).Apart from S.302[iv] and S.304[v], it also attracts section 307-punishment in case of attempt to murder, Section 323-punishment for causing hurt voluntarily, Section 325-punishment for causing grievous hurt voluntarily, section 34-common intention, Section 120 B for criminal conspiracy, S.143-punishment for unlawful assembly, S.147 –punishment for rioting etc. among others. Section 223(a) of the Criminal Procedure Code lays down the procedure to be followed in cases where the offense has been committed jointly in the course of the same transaction which is applicable on two or more persons.
Sadly, many of these provisions are toothless to combat the mob violence and community-based lynching. To put it into perspective, Section 153 A of the Penal Code, punishes anyone who promotes enmity or disharmony on grounds of religion, race, place of birth etc. through words, signs, acts and the like. The section might seem very powerful as it envelops all the major forms of violence, but there is a rider to this Section. Under Section 196(1) of the Code of Criminal Procedure, no court can take cognisance of an offence punishable under this Section, without the sanction of Central or State governments. It goes without saying that this clause favours the government to shield the perpetrators belonging to their political parties. In the recent decided case of Seema Bhuyan v. Union of India, the Honourable Guwahati High Court issued certain directions in regard with the public interest litigation filed by the petitioner in relation with the mob lynching. The Court had directed the Central as well as State Governments to take steps to curb and stop the dissemination of irresponsible and explosive messages, videos and other materials which provoke and tends to incite the mob violence and lynching of any kind.
With a view to enact a special law on lynching, Shashi Tharoor, Lok Sabha member and K.T.S.Tulsi, a nominated Rajya Sabha member introduced a private bill in the parliament in August 2018.The bill suggested a minimum punishment of seven year jail term, and the highest, life imprisonment. According to Mr.Tulsi the bill also talked about protecting the victim and the witnesses.[vi] However, Lok Sabha speaker denied the bills to be tabled, arguing that Law and Order was a state subject.
Manipur has set an example in this regard, by launching a remarkable law against lynching in 2018.The law installs a nodal officer, special courts and severe punishments. The law encompasses many forms of hate crimes including the grounds of dietary practises, political affiliation, and sexual orientation. Criminalising dereliction of duty by responsible officers gives the legislation a breath of fresh air. It lays down that any omission by a police officer without reasonable cause, and thereby fails to prevent lynching shall be guilty of dereliction of duty. It imposes a punishment of one-year imprisonment which may extend to three years and with a fine which may extend up to fifty thousand rupees. Equally reassuring is the provision which takes away the mandate of securing the sanction of the state government to ensure effective and unbiased implementation.
That said, the law also has minor defects inasmuch as it does not recognise solitary hate crimes like the murder of Mohammad Afrasal in Rajasthan. Lynching must not be solely identified with the number of perpetrators, but more importantly, the motive which sparks hatred and thereby crime must be the defining factor. Nevertheless, the Manipur Government has broken new ground.
Following the suit, Rajasthan passed their Anti-Lynching law in August 2019. It envelops within its various other offences related to lynching like disseminating offensive materials, propagation of hostile environment and obstructing legal processes. Along with this the Act also lays down harsh punishments providing for a jail term up to 10 years and a fine of Rs.2000 to Rs.3 lakh. Conspirators and abettors are deemed to have committed the crime, and has to bear the same quantum of punishment. West Bengal Assembly passed ‘The West Bengal (Prevention of Lynching) Bill’, 2019. From proposing a jail term of 3 years to life, the legislation also has a provision for death sentence.
The intervention of judiciary has played a key role in preventing this malicious practise of lynching. In Nandini Sundar and others v. State of Chattisgarh[vii] the State Government hired local tribal youth and armed them to fight the battle against ‘Extremist Maoist’. The Apex Court condemned the act and stated that “it was the duty of the state to strive incessantly and consistently, to promote fraternity amongst all citizens such that the dignity of every citizen is protected”. The Court also added that the state had the duty to prevent crime and maintain harmony in the country.
In Archbishop Raphael Cheenath S.V.D. v. State of Orissa and another[viii], a writ petition was filed to bring to light the inefficiency of the Orissa Government to deploy adequate police force to facilitate law and order during the assassination of Swami Laxmanananda Saraswati by Maoists. The Court came down heavily on the Government for their ignorance and noted that the state must inquire into the causes of such communal unrest and strengthen police infrastructure.
The petitioner in Mohd. Haroon and others v. Union of India and another[ix], alleged that the local administration in Muzaffarnagar of Uttar Pradesh allowed the communal tensions to take place without adopting any measures to curb the violence. The Supreme Court held that “the victims of the mob violence cannot be discriminated against on the basis of community or religion.” The Court also reminded that any officer responsible for maintaining law and order was found negligent, he should be brought within the ambit of law.
Concluding Remarks: The Way Ahead
Still at this time, when we are reeling under a crisis of unprecedented magnitude owing to Covid-19, the various lynching incidents that occur in various parts of India is not only shocking but also point finger towards the law enforcement agencies. The query here arises is that when all the authorities are repeatedly focusing on the significance of social distancing and other effective measures to break the chain of pandemic, how come a huge mob armed with weapons could congregate.
In spite of various heart wrenching and gruesome incidents of mob lynching that took place, the lack of codified laws to mitigate this crime has not been enacted which exposes the inefficiency of the Central and State governments. The government must adhere to the obligation to maintain welfare of the citizens and public tranquillity in the society.
[i] Definition by Robert L. Zangrando. [ii] Part-II, Article 7 of the Rome Statute of the International Court of Justice. [iii] Tehseen S. Poonawalla v. Union of India, (2018) 6 SC 72. [iv] Section 302 of IPC, 1860: Punishment for Murder. [v] Section 304 of IPC, 1860: Punishment for Culpable Homicide not amounting to Murder. [vi] Reported in The Hindu, 10th August 2018 [vii] Nandini Sundar v. State of Chattisgarh, Writ Petition (Civil) No. 250 of 2007 [viii] Archbishop Raphael Cheenath S.V.D. v. State of Orissa, Writ petition (Civil) No. 404 of 2008 [ix] Mohd. Haroon v. Union of India, Writ Petition (Criminal ) No. 155 of 2013