Over the past decade, the social and legal ethos of the Indian subcontinent is drifting towards doom. The degradation and degeneration of the legal fabric is brought about and fuelled by the frequent outbursts of rage by the self-appointed law-officers who resort to lynching people, in order to serve justice to them. This paper discusses the issue of mob lynching in detail, its history and background along with the need to have a separate anti-lynching legislation in the country. It provides a critical analysis of the current scenario of mob violence in India and also apprises the reader of how the existing legislations are not adequate to deal with the situation which we face today.
Against the backdrop of the unstoppable narrative of extremism and radicalism reverberating through the entire subcontinent in the form of mob violence, lynching and extra-judicial killings, this paper discusses the pressing need for incorporating a separate anti-lynching legislation in the statue books of the country. To do so, it first gives a brief background of the lynching in India in Part II. Knowing the background is important as it helps to contextualize the situation and paints a distinct outline of the entire scenario for the reader.
The paper deals with mainly two aspects. Firstly, it tells the reader why existing legislations would fail to address the problems perpetuated by the mob-lynchers. This is covered in Part III. In part IV, the paper talks about the United States of America, and how the situation there is quite similar to that in India, and how the United States is addressing this issue.
Part V concludes the paper by suggesting the measures that can be taken presently to deal with the menace of lynching.
II. THE INDIAN BACKGROUND
2015. Dimapur, Nagaland: A mob of 8000 people breaks into a prison and drags out a man who has been detained under the suspicion of rape and makes him parade naked before finally beating him to death.
Also, in the past decade, India has seen a ruthless form of mob justice being practiced by people who resort to inciting violence among communities to satiate their personal interests. This has become a regular practice in India where men and women are lynched for their choices in food, or after a spat over an auto ride, or in some cases, even Whatsapp rumours.
Also, cow vigilantes have had a fundamental role to play in these lynchings and it is becoming increasingly necessary for the government to regulate and control the activities of such elements who otherwise would disturb the entire social and legal fabric of the country. It is being said that,”India has been beset by a wave of gruesome lynchings. And at the epicentre of the country’s violent upheaval is the indolent cow.”
The term “Mob Justice” is gradually and unfortunately becoming a part of our daily lives.
III. WHY IS THE LEGISLATION NEEDED?
The Indian Penal Code has provisions against unlawful assembly, rioting, and murder, but there is nothing in the code which exclusively identifies or punishes the offence of mob lynching. Though Section 223(a) of the Criminal Procedure Code deals with the offences committed in course of the “same transaction” and has provisions to prosecute the accused, but it fails to address the issue of mob lynching per se and hence is prone to be misused and took advantage of.
The counter-claim to this line of thought may be that there are already enough provisions to deal with the crime of mob lynching, and the enactment of such a legislation would be unnecessary as it would open the floodgates to a lot of cases which would burden the already pressurised and overworked judiciary. Relevant citations may include Murder, Attempt to Murder, Culpable Homicide not amounting to murder, and acts done by several persons in furtherance of a common intention. However, it is important to note, that neither of them apply to a situation in which a person is executed in frenzy by a group of people who believe that their acts are legal and justified.
The first three sections may not be the appropriate sections for the crime of mob violence as, “if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault.” The applicability of Section 34, IPC is discussed in part IV of the paper.
Hence, it would be a tough task for the courts to decide, which person should be tried for murder and which person should not be.
IV. AN ANALYSIS OF THE ANTI-LYNCHING LEGISLATION IN THE USA
One of the first instances of lynching in the United States happened at St Louis in 1835. Consequently, in 1918, The Dyer Bill was introduced in the United States Congress which went on to influence the later anti-lynching legislations in the United States including the Costigan Wagner Bill. The Dyer Bill provided for the following:
“To assure to persons within the jurisdiction of every State the equal protection of the laws, and to punish the crime of lynching. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the phrase ‘mob or riotous assemblage,’ when used in this act, shall mean an assemblage composed of three or more persons acting in concert for the purpose of depriving any person of his life without authority of law as a punishment for or to prevent the commission of some actual or supposed public offense.”
The United States has till date not been able to enact an anti-lynching legislation having failed over 240 times in the past 100 years.The United States Senate agrees and apologises for having failed to enact an anti-lynching legislation,and over 100 years from when the congress first tried to pass an anti-lynching legislation, senators in the United States are trying again.
Here, it is important to note that The United States already has United States Code – Conspiracy Against Rights – Section 241 which states,
“If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same…They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
It although does not mention the word, “Lynch” but defines the crime in its entirety and imposes strict punishments on the offender.
Hence, the conditions prevailing in India and in the United States, are similar. Both have existing legislations which deal with issues which adumbrate the idea of punishing lynchers but do not have a specific law to deal with it. Also the fact, that the United States is actively pursuing the formation of an Anti-Lynching legislation gives India all the more reason to do so, keeping in view the similar situations prevailing in both the countries.
The fundamental aim to enact an anti-lynching legislation is to make the existing statues and existing legislations, more comprehensive and wholesome. If an action to this effect is taken, the first and foremost thing that would happen is that all the mob lynching cases would come under a specific and named category. They wouldn’t have to be tried under separate clauses of separate legislations.
Moreover, if a separate legislation is enacted, it would give the courts, the legislative power to take decisions regarding mob lynching. They would not have to try each person individually and investigate whether he/she has any defence to his/her actions under the law of the land.
There can never be an end to the menace of Mob-lynching, unless there is a separate legislation to deal with it. One of the reasons also being, that the existence of a legislation which exclusively deals with a particular type of crime instills a sense of fear in the offender, which in turn may dissuade him from committing the offence.
It is therefore concluded by this paper that in the interest of the country, and in a wider sense, the society as a whole, it is necessary for the government to tailor a separate legislation, or at least add a clause to Section 34 of the IPC which, firstly describes as to what a mob is, and secondly attaches violence, as an essential element of the crime of lynching and explicitly spells out penalties for the persons involved in the same. Before, a detailed separate legislation comes into force, the Indian Penal Code could be amended to incorporate the following as Section 34(2).
“In furtherance of the common intention, if the group of persons, form a mob, and resort to violence or lynching or an attempt to commit the same, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.”
The clause would work as a buffer until a separate and detailed legislation is drafted, which has a separate definition clause for the offences stated above, and other extent and jurisdictional clauses, so that law and order is restored in a society which is otherwise at the risk of drifting towards anarchy and barbarism.
National Law University, Kolkata