A Year On, State Govts Drag Feet On SC's Guidelines To Combat Lynchings, Vigilantism

It’s a scourge that doesn’t end, whatever the provocation, real or imagined—a bottomless pit of vigilante brutality. There have been at least 20 incidents of mob violence in the country in as many days. For statistics, three lives were lost—in Assam’s Jorhat, UP’s Sambhal, and Amethi from the same state. The reason behind most of these attacks is vile rum­our that pins suspicion on the victims being complicit in some crime or the other. The perennial bogey of ‘child-lifters’ is also stalking the ent­ire country, triggering attacks.

The country’s recent past is nearly as stained. The governing sentiments of mobs sometimes pertain to a heightened paranoia about cow slaughter, cattle theft, any other theft or, simply, the ethno-religious or linguistic identity of the intended victim. Mohammed Akhlaq and Pehlu Khan, lynched by mobs, stand as markers in India’s lynch-saga. Cops haven’t been spared either. A police inspector was killed in UP’s Bulandshahr last year by a riotous mob. And outrage against lynching incidents in the media seem to have gravitated towards compassion fatigue. The high furore fuelled by towering indignation has subsided, but some continue to make the obligatory noise, cry for justice, and demand an anti-lynching law.

What will a law change? A law, as senior advocate Indira Jaising quoted Martin Luther King Jr while arguing for it in the Supreme Court (SC), may not be able to make a man love someone, but it can keep the man from lynching him. The court, in its judgment on July 17, 2018, laid down a string of preventive, punitive, and remedial measures to be taken by the government to curb incidents of mob vigilantism and lynching. In addition, the SC recommended Parliament to create a separate offence for lynching. Calling vigilantism a ‘perverse notion’, the court noted that the process of adjudication takes place within the hallowed precincts of the courts of justice and not on the streets.

The three-judge bench led by the then chief justice, Dipak Misra, was deciding on a petition filed by political activist Tehseen Poonawalla. The bench further noted, “Lynching is an affront to the rule of law and to the exalted values of the Constitution itself…. These extrajudicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic.”

But over a year later, the governments—including the state governments who were a party in the case—have been dragging their feet over the SC guidelines. The top court in July this year issued notices to ten state governments on a plea seeking the implementation of the guidelines issued in 2018. Manipur, Rajasthan, and West Bengal have passed anti-lynching bills, but they are yet to become laws. The Manipur bill is awaiting the President’s assent while the Union home ministry is considering the Rajas­than bill for approval. As regards a law passed in  Parliament, the Central government constituted a Group of Ministers (GoM) to consider the legislation. But reports suggest that the GoM is likely to argue against creating a law as it believes that existing laws are enough to curb lynching incidents and that what is requi­red is better enforcement.

Poonawalla tells Outlook that a separate law is needed as lynching is not defined in the IPC or CrPC, and in order to combat a crime we need to define it first. “If there is no definition, then there are no SOPs on how to tackle it. Under the law, the investigation into the lynching incident will be personally monitored by a senior police officer [not below the rank of superintendent of police],” he says, adding that when a senior police officer is responsible, the chances of investigation being diluted or manipulated are low.

Furthermore, he cites the case of Pehlu Khan, a dairy farmer who was lynched by a mob in Alwar, Raja­sthan, while transporting cattle in April 2017. The court acquitted all six accused in the case—three minor acc­used are being tried in the juvenile court—giving them the benefit of doubt. The local court, however, found serious lapses in the investigation conducted by the police. “The names of six people, who were named by Pehlu Khan in his dying declaration, were dropped from the chargesheet. If an IG was monitoring the probe, it would not have happened,” says Poonawalla.

The opponents of the law argue that there already exist stringent laws against violence and there is no need for a separate law. Poonawalla counters it, questioning the need for laws such as the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act or the Protection of Children from Sexual Offences (POCSO) Act. Or even why there is a dem­and for the Lokpal if there are already laws against corruption. “The law will not solve the problem 100 per cent. But a separate law will certainly strengthen accountability.”

Supreme Court senior advocate Sanjay Hegde, who argued in the case for Poonawalla, headed the committee that prepared a draft anti-lynching law called Manav Suraksha Kanoon (MASUKA). Many of the features of the MASUKA, such as investigation by senior officers, compensation and rehabilitation for victims and crackdown on dissemination of offensive material, were absorbed by the SC in its guidelines. He, too, emphasises that a law will improve accountability.

“The objective of the anti-lynching law is to ensure accountability in the police force for allowing deterioration of law and order to the extent that a mob can lynch a human being. No lynch mob can succeed without a complicit, or a partially complicit constabulary,” asserts Hegde. “Every lynch mob that gets away from the courts is a recruiting advertisement for the next lynch mob. Therefore, it is vital that prosecution in such cases is seriously undertaken. And both courts and witnesses should be protected from local pressures,” he says, stressing the need for solid punitive action. The Kathua rape case ended in a conviction as it was transferred out of J&K, but the Pehlu Khan case ended in acquittal as the trial happened in the same district, he adds.

Fixing accountability for the police force becomes more pressing in the light of a recently released report titled ‘Status of Policing in India Report 2019: A Study of Police Adequacy and Working Conditions’, prepared jointly by Common Cause and Centre for the Study of Developing Societies (CSDS). The report revealed that 35 per cent of police personnel felt that it was natural for a mob to punish the ‘culprit’ in cases of cow slaughter. The report, which inter­viewed about 12,000 cops in 21 states, also said that one in two policemen feel that Muslims are naturally prone to commit crimes.

While the SC order has lent weight and force to the campaign for an anti-­lynching law, the BJP government’s res­ponse to the proposition hints at a long fight ahead for the campaigners. In fact, the BJP-led Opposition in the Rajasthan assembly had opposed the anti-lynching bill, saying that it favo­ured cow-smugglers and was an attempt to please a particular community.