Till New 'Law', Whether Lynching Go Unpunished?

Communal angle?

Victims of Palghar being Hindu Sadhus, a wrong perception was deliberately spread all over the country with big tv debates blaming other communities. The Maharashtra Home Minister answered BJP-led opposition for adding communal colour to this horrific mob crime and officially notified that among all 101 arrested there is not a single Muslim. Minister Deshmukh also ridiculed it as 'mungerilal ke haseen sapne'.

It is assessed by a tv channel during a debate in 2019 that there have been more than 250 cases of mob lynching in India, wherein Hindus, Muslims and others were also killed. Several persons were lynched in UP, Jharkhand, Rajasthan over suspected illegal cattle trade including cows, child lifting and trade in organs like kidneys. Prime Minister Narendra Modi on June 20, 2017 slammed Gorakshaks and said "killing in the name of Gau Bhakti is wrong, no person is allowed to take the law in their own hand. It is unfortunate that in the name of cow protection the human being are killed by so called Gau Rakshak"

Those reacting to lynching on communal lines should understand joint liability principle of criminal law cannot act as per the religion of victim or accused.

The relevant question is whether our penal and evidence law is enough to tackle this horrendous crime which was not specifically defined? Taking note of lynching since 2017 the Supreme Court advised Centre to draft a strict law to punish lynching. The Manipur and Rajasthan states passed Bills which are awaiting the assent of President. The Centre told the Parliament that it constituted a committee to draft Bill to amend IPC and Cr PC.

Joint liability in mob-crimes under IPC

Though a comprehensive penal law needed to prevent and punish lynching, present law is not awfully insufficient to deal with this joint crime by mob. Difficulty in tracing mob should not amount to immunity for killing.

Section 34 of Indian Penal Code incorporates the concept of joint liability, saying "when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him along". If hundred people contributed injuries to one victim, after having conspired together, each of such mob will be guilty as if he alone killed him, according to this very significant principle of joint criminal liability.

Abetment

Whoever abets another either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor, also will be liable for that offence.

Criminal Conspiracy

A criminal conspiracy takes place when two or more people get together and plan to commit a crime and then take some action toward carrying out that plan. That itself is an offence. This means conspiring to lynch itself is an offence. If conspired offence is committed, each is liable for the crime. These three principles make the persons of group jointly liable, without strictly examining each person's contribution to death whether fatal or not. A driver of a robbery gang will be liable for murder or grievous hurt committed by his team members while robbing the bank, though he was not physically involved in physical assault, as per this principle. Thus, each member a member of gang or unlawful assembly, or abettor or conspirator, in lynching will be totally liable for entire wrong.

According to Section 129 of Cr.P.C any unlawful assembly or any assembly of five or more persons likely to cause a breach of public peace may be dispersed by command of any Executive Magistrate or an officer incharge of a police station or a police officer, not below the rank of a sub-inspector, by use of civil force.

According to Section 130 (1) of Cr.P.C, If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.

As per section 141 IPC unlawful assembly is an assembly of five or more persons having a common object to perform an omission or offence.

Section 144 of CrPC gives executive magistrates the "Power to issue order in urgent cases of nuisance or apprehended danger", which can be used to prevent unlawful assemblies which are determined to commit offences.

It is bankruptcy of will to deal with this heinous crime. By failing to punish the mob criminals, the state sends across a message that 'murder by one is criminal and by many not'.

In July 2018 the bench of the then Chief Justice Dipak Misra and Justices AM Khanwilkar and D Y Chandrachud said that it was the duty of the state to maintain law and order. The 'Command of Law' being supreme should come from the legislature which should not allow any citizen to take law into his own lands. Supreme Court had rightly directed all states to appoint a senior police officer for each district to serve as the nodal officer to ensure that cow vigilantism groups do not take the law into their own hands. The apex court had also directed the chief secretaries of every state to file a status report giving details of the action taken to prevent incidents of cow vigilantism. The apex courts advise was taken seriously by Manipur and Rajasthan States.

The UP Law Commission under the chairmanship of Justice A N Mittal published a suo motu report and a draft bill on lynching. Though no organized data was available, Commission could collect information about happening of 50 incidents of mob violence in Uttar Pradesh in last eight years. Killing of Mohammed Akhlaq in Dadri in 2015, Inspector Subodh Singh in Bulandshahr in 2018 etc were referred by Justice Mittal, who concluded that the existing law is not sufficient and emphasised the need for separate law to punish mob-lynching crimes. The UP Commission also suggested up to three-year punishment to social media criminals who are liable for disseminating very provocative and offensive materials.

The UP Draft

The UP Commission has offered a draft Bill titled, 'Uttar Pradesh Combating of Mob Lynching Bill, 2019', which is heavily based on the suggestions of the Supreme Court in Teshseen Poonawalla's case and legislations/bills from South Africa and Nigeria. The Bill suggests punishments ranging from seven years in jail to life imprisonment for the offence, as well as imprisonment for a year for any policeman or district magistrate who fails to prevent incidents of lynching in their jurisdiction. Taking note of the role of social media, the Bill also prescribes a punishment of up to three years for dissemination of offensive material.

For investigating police it may be complex to allocate liability for such lynching by mob leading to their conviction in court of law. There is a very less possibility of conviction unless the prosecution establishes the participation with intention or knowledge, or by abetting or conspiring. Proving a prior or on the spot arising of common intention is the challenge before the police, whether under old IPC or new amendment, if they bring.

Justice Dr A.K. Sikri, in Cardamom Mktg. Corpn.v. State of Kerala, (2017) 5 SCC 255, para 13 observed that: "When we talk of sound and stable system of administration of justice, all the stakeholders in the said legal system need to be taken care of………..The Rule of Law reflects a man's sense of order and justice. There can be no Government without order; there can be no order without law……." It is the constitutional responsibility of the government to provide governance and maintain law and order and the responsibility lies on the state to protect life and property of the citizens.

Supreme Court's directions

In Tehseen S. Poonawalla vs. Union of India and Others, (2018) 9 SCC 501, SC suggested preventive measures and that the State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. The directions of SC include: The Secretary, Home Department of the States concerned shall issue directives/advisories to the Nodal Officers of the districts concerned for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.

It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of Cr PC, which in his opinion has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise……It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.

The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind. The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.

The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of Cr. PC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses.

The courts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness.

Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules.

The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance. The States are directed to take disciplinary action against the officials concerned if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

The Supreme Court finally said: The directed measures should be carried out within four weeks by the Central and the State Governments, and compliance report also to be filed within that period. Further, the Parliament is recommended to create a separate offence for lynching and provide adequate punishment for the same which would instill a sense of fear of law amongst the people who involve themselves in such kinds of activities. There can be no trace of doubt that fear of law and veneration for the command of law constitute the foundation of a civilized society."

Criminal Lawyer's Bill

Renowned Senior Advocate of Supreme Court and MP of Rajya Sabha proposed a private bill "the PROTECTION FROM LYNCHING BILL, 2017" and introduced it. He defined lynching under Section 2(c) lynching means 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.

Palghar lynching is not on these grounds but on a wrongful belief that the victims could be the kidney thieves. Manipur Bill's definition covers this aspect also. In addition to above definition, the words "on mere suspicion of commission of a cognizable crime not amounting to a heinous one" are added. This includes mob lynching on suspicion of commission of a cognizable crime. Simultaneously, it secures the right of the people to go to the extent of killing if that person is about to commit a heinous crime. In addition, the bill provided punishment for conspiracy or abetment or aides or attempts to lynch.

Draft Bills of KTS Tulsi, Manipur, Rajasthan and UP draft Bill have provided for punishing police officer's dereliction of duty, or negligence, immediate registration of FIR in mob lynching cases, preventive measures, protection of witnesses, and compensation for victims.

Manipur and Rajasthan passed Bills which need to be assented by the President. Union Home Minister told the House that a committee under BPRD has been formed to recommend amendments to IPC and CrPC.

There was a racial lynching in Missouri in 1901. Mark Twain saw in it the danger of America turning into "United States of Lyncherdom". Referring this historic response, Justice AN Mittal, Chairman UP Law Commission, said: "The secular Republic of India more than a century later, appears to be amidst the shadow of a similar fear".

Author is a former Central Information Commissioner

(A part of this article appeared first in thefederal.in)