ABSTRACT

The spate of mob lynching incidents in India seems to bolster what Hobbes defined as the state of nature. Looking at the status quo, it is not unjust to say that the Indian democracy is tilting towards mobocracy. Vigilantism has been a buzzword since the inception of superhero movies but it is high time when reel life needed to be decoupled from real life. The unrestricted digital boundaries have added fuel to the flames and aggravated the situation. In the digital era, a single message is sufficed for the provocation and under the cloak of such instigation ulterior political motives are attained. The fear of law among people and veneration for the same should be inherent parts of any state and the absence of such fear is not only detrimental to its people but also to the stable existence of a state. This essay throws a light on the vigilantism of fanatic Indian populace. The Authors attempt to critically analyze the socio-legal aspect of mob lynch in India. More specifically, authors answered the question that whether the law can provide sufficient support structure to curb the social menace.

INTRODUCTION

Mob lynching has always been a polemical practice in a society. “Once a light is on it spreads automatically” a famous quote of Immanuel Kant’s gets utmost relevant in status quo. The spike in mob lynching incidents is a perfect example of the adoption of Bollywood styled justice by Indian populace. The killing of a person on the rumour of child abduction or bovine issue has become a harsh reality.

Whenever a news pertaining to mob violence comes into the light, it raises few fundamental questions. These questions are – What are the reasons behind committing such an act? Don’t we have a law to curb such violence? Are the laws adequate to curb the problem? or does the problem lies in the social fabric of the country?, Are humans inherently violent or there is something outside which impels a person to commit violence? All of these questions are subjective and differ from person to person. Some people may justify the act of mob by calling it an act of nationalism whereas some may censure it by naming it an act against human values. The gruesome lynching of Mohammad Akhlaq in Dadri^[1] highlighted the issue of mob lynching but there are many Akhlaqs who have become the victim of mob violence. Many a time, a murder is hidden under the cloak of lynching in order to escape the criminal liability.

In this essay, an attempt has been made to analyze the socio-legal framework of mob lynching in India. The essay attempts to discuss that whether the legal mechanism is sufficient to curb the menace of mob lynching, and if the law is not the appropriate yardstick to stop the problem, what else should be done to control the unruly mob.

MOB LYNCHING: A NORMALIZATION OF EVERYDAY WAR

“Deaths-Deaths everywhere but no one to protect” is the appropriate explanation of India’s mob culture. This is the best way to define India’s status quo considering the numerous incidents of mob lynching. Unity in diversity which is considered to be a rudimentary element of India’s social fabric gets debilitated when contextualized with mob lynching in India.

Incidents of mob lynching based on any sort of social stratification contravene the core values of a secular nation. The alarming incidents of mob lynching pose a great threat to the very idea of India which is best example of Durkheim’s Organic solidarity. India has called one of the most heterogeneous societies of the world^[2] but what if the heterogeneity becomes problematic for the nation itself?

After India’s independence, the upper caste and upper Hindu community had to give away a lot of privileges such as financial securities (land reforms) etc. Social reformation started happening as people started opposing untouchability and other social practices which some favoured them. Law played a very crucial role in legitimizing this sacrifice by upper caste and upper-class Hindus. This created the feeling of victimhood in the mind of the upper caste and upper-class Hindu community. The illusion of victimhood can be showcased in the recent data which shows 86% Muslim deaths were caused by mob violence between 2010 to 2017^[3]. The data question the validity of the constitutional principle of secularism and Equality. The undeniable role of religion, caste, gender has been a mooting point in India. Hindu and Muslims, two polarized sections of Indian always stand true when tested on the anvil of the binary theory of self and other. For a Hindu, he and his community are part of self and vice versa for the Muslims. The automatic recognition of Hindu as true Indian creates the feeling of alienation for Muslims who has to take an extra step to prove his national loyalty. This psychological phenomenon and polarization are the prime reasons for the lynching of a particular community. In modern time rumours of child abduction, witchcraft, theft or any other offence are primary reasons for lynching. Mob lynching can be defined as street justice where the trial and investigation are done on the streets by the violent mob with sticks, acids or other deadly weapons without the fear of the law. These killings take place under the pretext of justice and thereby jostle the existence of rule of law in India. Every incidence of mob violence strengths unfettered contours of vigilantism. The torrent of mob violence incidents has led to the normalization of mob rule in India and created the feeling of apathy towards victims of mob lynching. This normalization is more pernicious than one can envisage it to be. Cow protection movements in the Pre-independence era^[4] are considered as one of the primary instances of lynching which has brought about a schism between Hindu and Muslim communities. This schism was broadened by the Hindi-Urdu controversy^[5] and the partition movement proved to be the final stroke in the polarization of two communities^[6].

Mob lynching per se is not as severe as mob lynching of a particular community.

Violence is an inherent trait of the human being. This seems justified after looking at the success of the virtual video games like PUBG where the player gets complete autonomy and freedom to kill other without any fear of getting caught. Violence is not just about playing violent video games but also gets demonstrated when a bystander stops his vehicle and enjoys the fight between two strangers. Although this is not violence per se but demonstrates the affection for violence as there exists no fear in the minds of the bystanders from getting harmed by the fight between the two individuals. This violent tendency of the human being also gets reflected when a stranger hits a suspect thief without knowing the actual facts and thereby enjoys the violence. All these examples bolster the tendency of human to be a violent person. After considering the fear factor and violent nature of a human, it can be deduced that there exist two assumptions in the mind of the person who indulges himself in the act of mob lynching and they are i.) harbinger of justice and ii.) the knowledge that the quantum of harm caused to the victim would more than the harm that may occur to the lyncher. After the notion of justice is used as a tool to justify the act of mob lynching.

The situation becomes worse when a public figure who represents popular will of people normalize the situation and gives legitimacy to the act of lynching.

The belief of serving justice and a strong affirmation from the community for the act done further pushes a culprit and others towards the illusion of being a true patriot. This barbaric act does not call out for an iota of guilt in the mind of the victim, but the individual holds a sense of pride for this guilty act. This situation further enhances the dark clouds of vigilantism wherein the self-presumed and self-appointed agents of justice deliver street-justice. The irony lies in the further victimization of the victim by the police authorities wherein the victims get prosecuted by the police authorities^[7]. Under the law a person is innocent unless proven guilty however in the current mob regime this right seems to be a mere sham and can be sacrificed under the pretext of serving justice. Many a time, street justice is seen through the biased lenses of communalism and political interests and thereby justified but one should always remember that crime has no religion, caste or race therefore neither the culprit nor the victim should be seen through the lens of race, caste, class or religion^[8]. The self-professed morality abrades the foundations of the constitutional principles and questions the feeling of ‘WE’ that the nation holds. If the mob lynching instances are not dealt with in a strictly legal manner, a time will come when Hindustan may become Lynchistan.

LEGAL FRAMEWORK

Daily instances of mob lynching seem to weaken the established premises of Indian Constitution. The first attack of mob lynching is on the expression “we the people” in the preamble of Indian constitution. Lynching by the mob connotes the absence of we feeling. The killing of a Muslim person by the mob on the rumour of cow slaughter in Uttar Pradesh^[9] denies the very existence of the expression “We” in the Indian constitution. The next attack is on the term “Sovereign” which is again a very rudimentary element of a Nation. In the words of Austin, the law is the command of sovereign and backed by the sanction which is often construed as the flow of law from sovereign and the breach of which attracts punishment. The fear of law implies in such a proposition. The basic role of any state is the welfare of its people but when the polarization within the people is so staunch that one sect of the population is ready to make other sect bleed, the whole assumption of welfare people gets trembled.

Secularism is the basic feature of the Indian constitution and attracts the highest level of criticism whenever the issue of mob lynching in India is discussed.

In total mob lynching victims on bovine issues, 86% were the Muslims in eight years (2010 to 2017) according to an IndiaSpend content analysis of the English media^[10]. The datum itself questions the very existence of the word secularism. If the mob lynchings keep on going with the same pace, it would not be unjust to call the situation as a tilt from Democracy to Mobocracy. This tilt impels a person to question the premise of Justice. The underlying principle behind any mob lynching incidence is the pretentious delivery of justice which is often tagged as vigilantism. This unfettered vigilantism impedes the true meaning of justice. Liberty enshrined under the preamble has merely become a sham when discussed in the paradigm of mob lynchings. Mob lynching incidents either deny the existence of liberty for a group or takes place because of its exercise by the victim. The term equality becomes most disputed when seen in the light of mob lynching incidents. Power and dominance are two default implications of mob lynching incidents. In mob lynching, one powerful and dominant group attacks on the weaker group and suppresses it thereby creates the images of the superior and inferior.

The expression fraternity becomes the most unrealistic term whenever debate over mob lynching takes place.

Fraternity stands for the brotherhood which cannot be present when mob lynching takes place. If one has a feeling of brotherhood or solidarity for other, whereby one will never lynch other on the pretext of anti-religion or beef or any other. Rather such a person will believe in the rule of law for actual delivery of justice but this thought seems to be too ideal to happen. Thus, a news pertinent to mob lynching has become too normal to get astonished.

Although there is no specific mention of mob lynching in traditional statutes in India yet there are provisions in Indian Penal Code (IPC), 1860 which address the issue of mob lynching.

Generally, the act of mob lynching is either followed by death or grievous hurt and for both these wrongs, IPC contains provisions. The provisions of IPC that can be attracted for the act includes Section 302 (murder), section 304 (culpable homicide not amounting to murder), section 320 (grievous hurt), section 307 (attempt to murder), section 326 (causing voluntary grievous hurt by dangerous weapons), section 141 unlawful assembly, section 148 (rioting armed with deadly weapons), section 149 (unlawful object), section 147 rioting, section 120B (Criminal conspiracy), section 117 (abetting commission of offence by public or more than ten person), section 153 (want only giving provocation with intent to cause riot), section 153 A (Promoting enmity between two groups on ground of religion, race, place of birth, residence, language etc. and doing acts prejudicial to maintenance of harmony).

Besides the provisions enumerated under IPC, 1860 India have two other nostrums to curb the enjoyment of immunity mobs. The first antidote to this problem is the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011 aka the Anti-Communal Violence Bill and the second is police reforms. Latter has not been implemented yet in spite of the Supreme Court’s ordering their implementation. However, they do not reduce the mob lynching incidents in India.

Recently, in a case^[11] the Apex Court explicitly dealt with the issue of mob lynching and issued guidelines. Hon’ble Apex Court castigated the mob lynchings and vigilantism in India. The court justified that how the existence of vigilantism is an antithesis to the notion of civilized society and highlighted the importance of rule of law in society. In furtherance of the same court chastised the self-appointment of cow protectors who commit a grievous act to uphold their self-assumed and self-professed morality.

Finally, the court gave preventive, punitive, and remedial guidelines. In preventive guidelines court directed the appointment of Nodal officer not below the rank of superintendent of police in each district, setting up a special investigation team, identification of the area which have had the highest reported cases of mob lynching in past 5 years, holding regular meetings with the local investigation units in the district along with all Station House Officers of the district, impose the duty on the police officer to disperse the mob, duty of the Director General of Police to issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas, imposed legal obligation on the police officer to register FIR under Section 153A of IPC or other relevant provisions of law against persons who disseminate irresponsible and explosive messages which are likely to cause mob lynching.

In the remedial measures Apex Court directed Police officers to lodge the F.I.R. without any delay, intimate the Nodal officer of the district to stop the further harassment of the family members of the victim, personal monitoring of investigation by nodal officer, make provision for the lynching/mob violence victim compensation scheme, try the case in designated court/Fast Track, award maximum sentence as provided for various offences under the provisions of the IP, free legal aid to the to victim or his/her relatives.

As the punitive measures, the court said that that if the police officer or an officer of the district administration fails to comply with the above guidelines, it would be considered as an act of deliberate negligence/misconduct and if it is found that 1.) such official did not prevent the incident, even after having prior knowledge of it, or 2.) where the incident has already occurred, such official did not promptly apprehend and institute criminal proceedings against the culprits, then strict action would be taken against such official. Nonetheless all the guidelines, Court showed the need to bring a specific law for mob lynching to create the fear in the mind of people.

CONCLUSION

In a nutshell, this essay emphasizes the social and legal genesis of the problem of mob lynching. The social issues surrounding the subject of mob lynching was analyzed and the legal framework for the cause of mob lynching was also referred to. After analyzing both social and legal aspects, it can be concluded that there already existed sufficient legal frameworks IPC for murder, rioting, affray, unlawful assembly etc. and if the law enforcing agencies implemented these existing legal frameworks efficiently, it would have certainly helped the cause of mob violence. However, the primary issue of mob lynching is the mindset that the individuals have got themselves into. The lawmakers may come up with the best set of laws on the subject of mob lynching but it would only work out if the masses shed of their feeling of dominance and adhere to the core values of peaceful-coexistence. The individuals committing the barbaric act of mob lynching do not fear the deterrence that the law imposes, but only values the affirmation that their community has to offer. In order to tackle the problem of mob lynching, we must work upon the root cause i.e. the violent and biased mindset of the individuals. Coming up with different regulations won’t serve the purpose alone but sensitizing the mindset of the people will. Individuals believe themselves to be harbingers of justice and the appreciation from a part of the crowd further encourages them to justify their self-professed morality. Therefore, the need is to bring about a change in the mindset of people in order to curb the instances of lynching.

By: Lokesh Vyas & Naman Dubey

Institute of Law Nirma University, Ahmedabad

^[1] Internet Desk, The Dadri lynching: how events unfolded, The Hindu (Oct. 03, 2015, 01:01 PM), https://www.thehindu.com/specials/in-depth/the-dadri-lynching-how-events-unfolded/article7719414.ece.

^[2] State of Karnataka and Another v. Dr. Praveen Bhai Thogadia, (2004) 4 SCC 684.

^[3]Delna Abraham & Ojaswi Rao, 86% killed in cow-related violence since 2010 are Muslim, 97% attacks after Modi govt came to power, Hindustan Times (Jul. 16, 2017, 07:21 AM), https://www.hindustantimes.com/india-news/86-killed-in-cow-related-violence-since-2010-are-muslims-97-attacks-after-modi-govt-came-to-power/story-w9CYOksvgk9joGSSaXgpLO.html.

^[4] Creating Nation-States: Religion in Pre-Independence India, http://shodhganga.inflibnet.ac.in/bitstream/10603/21261/13/13_chapter%205.pdf.

^[5] The Hindu and Urdu Controversy: A Linguistic Assessment, http://shodhganga.inflibnet.ac.in/bitstream/10603/55575/10/10_chapter%202.pdf.

^[6] Faisal Devji, Partition or Independence?, The Hindu (Aug. 15, 2017, 02:02 AM), https://www.thehindu.com/opinion/lead/partition-or-independence/article19493390.ece.

^[7] Avinash Giri, Police in India Punish Muslim Victims in ‘Mob Lynching’ Case, The Diplomat (Feb. 08, 2018), https://thediplomat.com/2018/02/police-in-india-punish-muslim-victims-in-mob-lynching-case/.

^[8] Tehseen Poonawalla & Ors. v. Union of India & Ors., (2018) 6 SCC 72.

^[9]Sandeep Rai, 45-year-old lynched in UP over cow slaughter romour, The Times of India (June 20, 2018, 10:33 AM), https://timesofindia.indiatimes.com/city/meerut/45-year-old-lynched-in-up-over-cow-slaughter-rumour/articleshow/64657036.cms.

^[10] Delna Abraham & Ojaswi Rao, Cow-Related Violence: 86% Dead Since 2010 are Muslim; 97% Attacks Reported After 2014, The Wire (June 28, 2017), https://thewire.in/featured/cow-related-violence.

^[11] Supra note 8.

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