Analysing the Legislative Framework for Combatting Mob Lynching in India under Bhartiya Nyaya Samhita

Abstract

Mob lynching is a crime that is in sharp contravention of the ideals of peace and harmony among all communities which were prevalent in ancient Indian society. It involves the killing of a person by a violent group of people based on his social profile. In the last decade, mob lynching has become a burning issue due to the rapid increase in these incidents. The problem was aggravated as a legal vacuum was created in the absence of any specific provision to deal with these cases. This issue was resolved by the Bhartiya Nyaya Sanhita bill which made mob lynching a specific offence. This paper revolves around the analysis of this provision and the challenges that it is likely to encounter when it gets implemented. The adequacy of the provision to combat mob lynching in India has been reviewed.

Keywords

 Mob lynching, cow vigilantism, Bhartiya Nyaya Sanhita, punishment, challenges

Introduction

In June 2023, three horrifying cases of mob lynching were reported from different parts of India within a short period of ten days. This highlighted the veracity of the problem of mob violence. A crime against humanity, aggravated by hate speech and communal tensions, mob lynching rips apart the social fabric of a nation. It completely disturbs the tranquillity of any society. The intensity of this problem provoked National Federation of Indian Women (NFIW) to move the Supreme Court with a Public Interest Litigation for an intervention to resolve the issue.

In 2020, Palghar district of Maharashtra made headlines when two Sadhus were lynched in the presence of police officials. The victims were suspected to be child stealers on the basis of WhatsApp rumours. In 2015, a violent group brutally lynched Mohammad Akhlaq in Dadri, Uttar Pradesh on finding meat in his house which they claimed to be beef. Mob lynching is a massive blow to human rights. It puts the principles of the rule of law in jeopardy. These instances shake the entire nation and make the people apprehensive of their social security which is guaranteed by the State. The existing criminal laws in India have no mention of mob lynching. In August 2023, the Union Home Minister, Mr. Amit Shah laid down three new criminal code bills in the Lok Sabha which would replace the existing ones. One of the most sparkling feature of the Bhartiya Nyaya Sanhita[1] Bill was a provision that deals with mob lynching and prescribes punishment for it.

Research Methodology

This research is primarily based on the doctrinal method. In this paper, the researcher has relied on authentic and credible secondary sources including books, journals and news reports. This approach was adopted to have a comprehensive understanding of the topic. The central theme of this research is to examine whether the existing framework or the proposed provision in the Bhartiya Nyaya Sanhita is sufficient to effectively deal with the problem of mob lynching in India.

Review of Literature

Ishan Gupta’s journal article Mob Violence and Vigilantism in India[2] provides a systematic review of some general patterns seen in mob lynching cases in India. It provides a statistical account of the escalation in the number of hate crimes from 18 cases in 2014 to 92 in 2018 with a special focus on cow-related violence. This demonstrates the urgent need for a separate law to curb this menace.

News reports from time to time report the details of the incidents of lynching across India[3]. The Hon’ble Supreme Court in its judgement discussed this issue at length and suggested various measures that the State Government must take to deal with cases of mob lynching. The Court also recommended the Parliament to establish mob lynching as a separate offence and prescribe enough punishment to instil fear in among those who are involved in such activities[4]. Uttar Pradesh 7^th State Law Commission’s report on Mob Lynching 2019 outlined the existing legislative framework which is used to punish the offenders and concluded that it is insufficient to provide justice to the victim[5]. This research focuses on the analysis of the latest development in which a separate provision has been made for mob lynching. The implications and challenges of the provision have been reviewed to determine its efficacy.

Mob Lynching: Meaning and Causes

Mob lynching is a term used to describe the act of targeted violence by a large group of people. It means killing a person by those who do not have the legal authority to do so. It refers to a situation where people of a society form a group to punish a person/s who they believe had committed a wrong without following any lawful procedure. They assign to themselves the task of law enforcement and establishing justice. The truth of the allegations or the innocence of the victim is irrelevant. The mob takes the law in their own hands. It includes the use of torture and brutality to send out a message to others. The Supreme Court of India described it as a “horrendous act of mobocracy”.

There are a variety of causes that give rise to lynching. The minority problem and communal conflict which is prevalent in India since independence is a major contributor to the crime. Some of the common causes are discussed below:

• Communal Tensions:

 India is home to diverse communities who belong to different castes, religions or ethnicities. People are intolerant towards other communities. Honour killing of young couples who had eloped is another type of mob lynching. These lynchings are orchestrated to proclaim the false sense of superiority over other communities.

• Cow vigilantism:

The community groups have different food preferences which may be against the religious belief of another group. The cow is considered as a sacred animal by the Hindus. On the other hand, beef is a part of the diet in the Muslim community. One of the most common cause behind lynching is to prevent cow slaughter. The incident in Nasik, Maharashtra in June 2023 was related to lynching of two men who were transporting cows. Cow vigilante groups like Gau Rakshak often indulge in such activities[6].

• Illiteracy:

The majority of mobs are people who come from a rural background. More often than not, mob lynching is done by illiterate crowds. They have their prejudices and biases against others. These are strategically used by local leaders to incite violence among communities for their political gains. People believe in rumours without verifying them which makes their prejudices even more intense. Superstitious mobs have also lynched people who were suspected of practicing witchcraft or black magic.

• Suspected Criminals:

Punishing alleged kidnappers or thieves was also the motive of many violent mobs. The suspicion is generally based on unverified information. Mobs do not feel the need to take the recourse to a public servant and decide on punishing the alleged criminal themselves without any inquiry or trial. Recent incidents are of Alwar, Rajasthan in 2019 where a suspected cattle thief was lynched to death and the infamous Palghar killing of Sadhus who were alleged child stealers.

Lynching emanating from Social Media

Social media is a great platform for the rapid transmission of information and opinions. It also serves as a medium for the spread of misleading and fake news. Mob lynching fuelled by social media has become common in today’s times. Manipulated videos and images that build a particular narrative are widely circulated on the internet like wildfire. Messages instigating violence can be sent to thousands of people in a single click thereby aiding and abetting the crime. This makes the mobilisation of violent crowds an easy task.

Increased Magnitude of Mob Lynching Cases

There is no official record of mob lynching being kept by the Government. In the year 2017, NCRB collected data on cases of mob lynching, hate crimes etc. This exercise was discontinued thereafter. Explaining the discontinuance, the Ministry of Home Affairs said that it was observed that the data was unreliable as these crimes have not been defined[7].

There has been a sharp escalation in the magnitude of mob lynching cases across India. From the incident in Dadri of a communal lynching of a Muslim man for allegedly eating beef to the lynching of Sadhus in Palghar, India has witnessed multiple horrors of mob fury in the last few decades. As per an analysis conducted by India Spend based on news reports, lynching cases of suspected child lifters alone reached 69 cases between January 2017 and July 2018. There were 33 deaths in these cases. All these lynchings were based on pure suspicion[8].

Supreme Court’s take on Mob Lynching

The Supreme Court has always condemned the occurrence of mob lynching in its judgements. It has, on multiple occasions, advocated for a stringent punishment for the perpetrators of hate. In a landmark verdict delivered in 2018, the apex court directed the states to take preventive, punitive and remedial measures to tackle the cases of mob lynching. In the wake to several cases of cow vigilance across the country, a number of petitions by social activists flooded the Supreme Court. They raised a plea to make the states accountable for mob lynching cases.

The three-judge bench observed in Tehseen Poonawalla v. Union of India[9] that in a democracy, the right to life and liberty is the paramount consideration and it must be protected by the State to establish a constitutional order. The State is responsible for fostering a secular, pluralistic and multicultural society. It laid down three set of measures that all states are expected to adopt to deal with cases of mob lynching.

As preventive measures, the states must appoint nodal officers who have been trained to handle cases of mob lynching. A Special Task Force would be constituted to procure intelligence reports of mob lynchings that are likely to happen including information about spreaders of hate speech or fake news. They would disperse potentially violent mobs under Section 129[10] CrPC. They can also register FIR under Section 153A[11] IPC against persons who were likely to incite mob violence.

As remedial measures, in case a mob lynching has occurred the local police station must immediately lodge an FIR and inform the nodal officers. The investigation would be monitored by the nodal officer. A victim compensation scheme must be formulated that contains provisions for interim relief for the victim or kin of the deceased. The trial shall take place before a Fast Track Court constituted for this purpose.

As punitive measures, disciplinary action has to be taken against any official who fails to prevent any mob lynching despite having knowing about it or did not investigate the case or arrest the culprits to institute criminal proceedings.

In 2022, while hearing a petition pertaining to mob violence against Christians, Justice Chandrachud expressed concern about the non-compliance of the Tehseen Poonawalla judgement guidelines by the states. On the pretext of mob lynching becoming a recurring phenomenon, NFIW filed a PIL in July 2023. The petitioners pointed out that the surge in mob lynching is due to the complete failure of the States to take any effective action to address the issue. Keeping in mind the gravity of the problem, the Court issued a notice to the police chiefs of six states including Bihar, Haryana, Orissa, Madhya Pradesh, Maharashtra and Rajasthan along with the Union Home Ministry to file a response[12]. The Court also directed the Government to make mob lynching a separate offence with punishment. This reflects the continuous effort by the apex court to curb mob lynching.

Existing Legal Framework for cases of Mob Lynching

Mob lynching has not been defined as a separate offence under IPC or any other law. Cases of lynching are dealt with under various provisions of IPC depending upon the nature and facts of the case. Section 149[13] IPC prohibits any offence committed by an unlawful assembly of five or more persons with a common object. In cases where the death of the victim is not caused, Sections 323[14] and 326[15] are attracted for causing grievous hurt or Section 307[16] for attempt to murder. Lynching in which death is caused are considered more heinous and the offenders are charged with Section 304[17] for culpable homicide or Section 302[18] for murder read with Section 34 for common intention. The absence of specific laws to deal with this crime and the fact that no official record was being maintained shows the reluctance of the Government to resolve this issue. Under procedural law, Section 223(a)[19] of CrPC provides that persons who are accused of the same offence committed in the course of the same transaction will be charged and tried together. It can be observed that there was no uniformity regarding the punishment for mob lynching. 

Multiple horrifying incidents of mob lynching in the states moved the governments of Manipur, West Bengal, Jharkhand and Rajasthan to introduce anti-mob lynching bills. Conforming to the Poonawalla judgement, the West Bengal Government passed a legislation to punish mob lynching with a death sentence. It also contained provisions for formulating a lynching compensation scheme. Rajasthan Government passed the Protection from Lynching Bill providing a punishment of rigorous life imprisonment. In 2021, Jharkhand Assembly passed the Prevention of Mob Violence and Mob Lynching Bill which prescribed the punishment of 10 years of life imprisonment for the offenders apart from fine and attachment of property. The Act was criticized for its defective definition of “mob”. Bills passed by Rajasthan and Manipur assemblies were reserved for the President’s consideration. Ironically, none of these bills could be implemented till 2023.

New Provision under Bhartiya Nyaya Sanhita

Amidst a nationwide outcry about the alarming rise in mob lynching, the Government finally took a decisive stand. On 11^th August 2023, the Union Home Minister introduced three new criminal laws bills which would replace the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act. The Bhartiya Nyaya Sanhita which is a bill set to replace the IPC incorporates a separate provision on mob lynching.

Clause 101(2)[20] of the Bill pertains to cases where five or more persons acting in concert commit murder on the grounds of race, caste or community, sex, place of birth, language, personal belief or any other ground. Each member of the group committing this offence shall be punished with death, life imprisonment or imprisonment for seven years and upwards and shall also be liable to fine. The offence is not specifically named mob lynching. This Clause requires a specific kind of intention to kill a person because of his social status.

Clause 115(4)[21] lays down the punishment for causing grievous hurt to a person on the grounds of his social status, same as those mentioned under Clause 101(2). This provision would address cases of mob violence where the victim’s death is not caused but he has suffered serious bodily injuries. The punishment prescribed is imprisonment up to seven years and a fine.

Essential ingredients of Clause 101(2) are:

• There should be five or more members of a group.
• They must act in concert.
• The murder must be committed on the grounds of race, caste or community, sex, place of birth, language, personal belief or any other ground.

Challenges in the New Provision

The actual efficacy of any law is reflected only when it is implemented. An analysis of the abov-mentioned provision highlights a number of legal challenges that it is likely to face in its practical application. They are:

Acting in concert:

One of the key element of Clause 101(2) is that the group must act in concert. In legal terms, it means that the persons had an agreement or understanding and in pursuance of it actively cooperated to achieve a common goal. This requires pre-planning by the members of the group before the commission of the offence. There is no clarity as to whether this implies to a common intention to commit murder or not. Further, it is very difficult to prove that the persons were acting in concert because mob lynching may also occur spontaneously.

Punishment of seven years is problematic:

 Clause 101(2) provides for an option of punishment with seven years imprisonment. Therefore, depending upon the discretion of the Judge, a sentence of seven years imprisonment may be awarded to the offenders. Legal experts believe that this punishment is insufficient. Committing a murder on the grounds of race, caste, etc. is a grave offence and seven years is a very short time to meet the ends of justice for the victim. Murder has never been punishable with seven years imprisonment in the previous criminal law.

Religion not explicitly mentioned:

A huge chunk of mob lynching cases is based on religious grounds as highlighted in the apex court’s judgement of 2018[22]. The most common of them is cow vigilantism. In such a situation, not mentioning religion as an explicit ground is a curious omission. It may be included within the ambit of the words “any other grounds”. However, the extent of other grounds would remain as a matter of judicial interpretation.

Identification of offenders:

Arriving at a certain number of persons who were involved in the lynching and identifying the actual offenders is a complicated task. A uniform criteria for participation in the mob has to be set out to determine the persons who would be held liable. The Courts have to tread cautiously to distinguish between offenders and innocent spectators. Circumstantial evidence would be a key factor in this task. Moreover, a minimum of five persons must be convicted to constitute an offence under Clause 101(2).

Observation of Clause 101(2) and Clause 115(4) raises doubt as to whether they create a separate offence for mob lynching or just creates a separate category of murder and grievous hurt respectively when it is committed by five or more persons and with a special intent.

Suggestions

Clause 101(2) is not the complete solution to the problem of mob lynching. The measures for combatting mob lynching should not restrict its ambit to enumerating it as a separate offence and prescribing its punishment. Social media is a major threat which aggravates the acts of mob fury. Special attention must be given to regulating online content for checking the spread of hate speeches and instigating messages. Provisions must be incorporated in procedural law to facilitate proper investigation and speedy trial of mob lynching cases. A uniform scheme for providing compensation to victims must be formulated.

Conclusion

The culture of justice through mob violence is a gross violation of the principles of democracy envisaged by the Constitution of India. Bhartiya Nyaya Sanhita Bill serves as a major breakthrough in the sphere of combatting mob lynching but it is not the ultimate solution. The number of challenges regarding the Bill will have to be addressed when it is passed to bring some clarity about the legislative intent. Values of harmony and peaceful coexistence must be cultivated in the citizens through positive efforts made by the State. Combatting mob violence is the need of the hour. It is only possible when all the elements of the criminal justice system resolve to eradicate the problem from its very roots.

Name of Author: Ananya Tiwari

College: University of Lucknow

---

[1]The Bhartiya Nyaya Sanhita, 2023, Bill No. 121 of 2023

[2] Ishan Gupta, Mob Violence and Vigilantism in India 23 J. Int. Aff 152, 155 (2019)

[3] 2 lynchings in 15 days, Nashik Cattle traders allege harassment by Bajrang Dal India Today (last visited 13^th September, 2023) https://www.indiatoday.in/india/story/nashik-cow-vigilantism-lynching-cattle-traders-harassment-extortion-2398812-2023-06-27

[4] Tehseen S. Poonawalla v. Union of India and Ors (2018) 9 SCC 501

[5] State Law Commission Uttar Pradesh On Mob Lynching, Report No. 7, 113. https://upslc.upsdc.gov.in/MediaGallery/7thReport.pdf

[6] Id. at 2

[7] The Print, https://theprint.in/india/governance/ncrb-stopped-collecting-data-on-lynching-hate-crime-as-it-was-unreliable-govt-tells-ls/785201/ (last visited 13^th September, 2023)

[8] Alison Saldanha, Pranav Rajput et.al. Chlid-Lifting Rumours: 33 Killed In 69 Mob Attacks Since Jan 2017 IndiaSpend (last visited 13^th September 2023) https://www.indiaspend.com/child-lifting-rumours-33-killed-in-69-mob-attacks-since-jan-2017-before-that-only-1-attack-in-2012-2012/

[9] Id. At 4.

[10] The Code of Criminal Procedure, 1973, § 129, No. 2, Acts of Parliament,1974 (India).

[11] The Indian Penal Code,1860, § 153A, No. 45, Acts of Parliament,1860 (India).

[12]Supreme Court Directs States to Collate Data on Mob Lynching, File Status Report with MHA The Wire (last visited 13^th September 2023) https://thewire.in/law/supreme-court-directs-states-to-collate-data-on-mob-lynching-file-status-report-with-mha

[13] The Indian Penal Code,1860, § 149, No. 45, Acts of Parliament,1860 (India).

[14] The Indian Penal Code,1860, § 323, No. 45, Acts of Parliament,1860 (India).

[15] The Indian Penal Code,1860, § 326, No. 45, Acts of Parliament,1860 (India).

[16] The Indian Penal Code,1860, § 307, No. 45, Acts of Parliament,1860 (India).

[17] The Indian Penal Code,1860, § 304, No. 45, Acts of Parliament,1860 (India).

[18] The Indian Penal Code,1860, § 302, No. 45, Acts of Parliament,1860 (India).

[19] The Code of Criminal Procedure, 1973, § 223 cl. a, No. 2, Acts of Parliament,1974 (India).

[20] The Bhartiya Nyaya Sanhita, 121 of 2023, cl.101 sub cl 2.

[21] The Bhartiya Nyaya Sanhita, 121 of 2023, cl.115 sub cl 4.

[22] Id. at 4.