Do We Really Need a Specific Law on Mob Lynchings? Yes and No

The SC says we need it, the Parliament is working on it – here are the pros and cons of having a new lynching law.

Vakasha Sachdev explains the pros and cons of a new law for mob lynching

(Photo: The Quint)

Video Editor: Ashutosh
Cameraperson: Abhay Sharma

Over 30 people have been killed in mob lynchings in 2018 alone, and there appears to be no end in sight. Alwar, Singrauli, Dhule, Assam, Bangalore, Ahmedabad – the list goes on, across the country.

The situation has got so bad that the Supreme Court has had to pass a judgment on it, in which it noted:

The horrendous acts of mobocracy cannot be permitted. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become“the new normal”.

Chief Justice Dipak Misra’s judgment in <i>Tehseen Poonawalla vs Union of India</i>

Now the Supreme Court believes that Parliament needs to make a new law to deal with lynching, to instil a “fear of the law” in would-be lynchers.

But do we really need a new law on lynching?

Why a New Law Isn’t Necessary

Even as things stand, lynchings are illegal, and anyone involved in them has committed a criminal offence. The “reasons” behind the killings – child-lifting rumours, cattle-smuggling – that’s all irrelevant. It doesn’t matter even if the mob was right – no matter who the victims were, nobody can take the law into their own hands.

And the law already has provisions to deal with mob killings.

The crime of murder (Section 302, Indian Penal Code), read with common intention (Section 34) or conspiracy (Section 120B), can be used to charge the entire mob, not just whoever lands the fatal blow. If the victim doesn’t die, you could use charges of rioting, unlawful assembly or attempt to murder. All of these charges apply even if the mob didn’t originally intend to kill the victim.

Adding a new offence of mob killing or mob lynching to the IPC, as the government is reportedly planning, doesn’t therefore change very much.

More importantly, doing this doesn’t exactly address why these killings take place, or how they can be stopped. There is more to this culture of lynching that is plaguing India than just garden-variety murderousness.

Coming up with a law could also very easily just become a quick-fix solution that distracts everyone from the root causes behind the killings, and why the killers are able to act with impunity. One also has to be careful with the drafting, to avoid any ambiguities or vagueness.

Now, one might say that it is precisely because there is something more to these lynchings, that a new law is necessary. One of the most horrifying aspects of the lynchings in India has been the way in which the mob proudly records the killings, shares them online, and boasts of its achievements, just like Shambhulal Regar did when he killed and burnt Mohd Afrazul.

But this isn’t new or unique to India. Back when lynchings of African-Americans were widespread in America, people used to take photographs of the lynchings and even put them on postcards!

As for the USA – they went from a place termed by Mark Twain as the United States of Lyncherdom, to no longer having this problem, without any special law to deal with it – so a special law is not a necessity.

Why a Special Law on Lynching Could be a Good Thing

Of course, just because a special lynching law isn’t essential, this doesn’t mean it wouldn’t be a good thing to have.

Even though the USA got rid of its lynching problem without a special law, the underlying problems never went away. With the resurgence of white supremacism in America, black legislators have in fact called for lynching to be officially recognised as a hate crime, and treated with due seriousness.

Here are some reasons a special law dealing with lynchings can work for India:

Reason 1: Inadequate Hate Crime Laws

And this is something we should be considering carefully in India, where our laws are very inadequate when it comes to hate crimes. Apart from the SC/ST Atrocities Act, we don’t have any significant laws which deal with violence and harm caused to the victim based on which community they’re from. This is important when religion or outsider status is often at the heart of contemporary lynchings.

Reason 2: Addressing the Role of Police

Another key aspect of lynchings in India is the role of the police.

Take the death of Akbar Khan in Alwar, for example. The police didn’t take him to a hospital for three hours, despite knowing what had happened to him. At other times, they just stand by and let things happen, like in the Hapur lynching.

Apathy, connivance, whatever it is, the mob isn’t worried about the police, and the police aren’t worried because they suffer no consequences. The law as it stands can do little about this – but a new law on mob lynching could.

It wouldn’t even require a massive amount of thought. The Supreme Court’s new guidelines already include responsibilities for local police, including appointment of nodal officers, keeping track of incidents, ensuring the filing of FIRs, and so on. The draft Manav Suraksha Kanoon drafted last year by activists and lawyers (including Tehseen Poonawalla and Sanjay Hegde) also contains some good suggestions for making the police accountable, including specific offences for dereliction of duty.

Reason 3: Fast-Tracking and Monitoring

A new law, could also ensure that lynching cases are fast-tracked and monitored by High Courts or the Supreme Court. This would mean they don’t just get lost in trial court limbo like the Mohammad Akhlaq case, or see the convicts released on bail to be garlanded by politicians like Jayant Sinha.

Reason 4: Punishment of Instigators

It could also ensure that there are appropriate punishments for sharing material which instigates mob violence. This is important in a time when lynchings are incited by fake news and messages on WhatsApp.

The Bottom Line

Putting all this in one place under one special law could make prosecutions a lot easier, and ensure that justice – including compensation for the victim’s family – is actually done.

The bottom line is that creating a new law to deal with mob lynchings can be a good idea, which could actually be of use in dealing with this country’s lynching problem, if it includes the right things.

Of course, law or not, the most important thing right now is having the political and administrative will to deal with this madness. But with a prime minister who steadfastly remains silent, and a ruling party whose members are happy to support lynchers, there appears to be little will to stop us from becoming the Republic of Lynchistan.