“The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. 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.'"
- Tehseen Poonawalla v Union of India
The right to choice is a fundamental right enshrined in the Indian Constitution, allowing every citizen to express themselves freely and make personal decisions, including what they choose to eat. This right is intrinsic to the fundamental freedoms guaranteed under Article 19, which ensures the liberty of thought and expression.
Article 19(1)(a) of the Indian Constitution provides freedom of speech and expression and while it primarily deals with the freedom of expression, the Supreme Court has interpreted it to include the freedom to express one’s choice of food as part of an individual's personal liberty.
Further, Article 21 guarantees the right to life and personal liberty, which the Supreme Court has interpreted expansively to include the right to privacy, personal autonomy, and dignity. The choice of food can be seen as an aspect of personal liberty too, which is protected under Article 21.
However, recent incidents of mob violence and lynchings on the pretext of someone consuming or carrying beef are stark reminders of how these fundamental rights are being undermined. Such acts not only contravene the principles of our democracy but also violate the tenets of our Constitution.
The Case of Haji Ashraf Munyar
A video of a recent incident that highlights this disturbing trend was widely shared on social media, showing a group of men repeatedly slapping an elderly Muslim man, Haji Ashraf Munyar, while demanding to know if the meat he was carrying was beef. The assault reportedly occurred near Igatpuri in Nashik district. The Government Railway Police in Thane district registered a First Information Report (FIR) in the matter, with a railway police official confirming that the incident took place on 28 August.
The accused have been charged under various sections of the Bharatiya Nyaya Sanhita (BNS) — 189(2) (unlawful assembly), 191(2) (rioting), 126(2) (wrongful restraint), 190 (being member of unlawful assembly), 115(2) (voluntarily causing hurt), 352 (intentional insult with the intent to provoke breach of peace), 324(4) (mischief), 351 (3) (criminal intimidation).
It was only after several attempts by one Dr Jitendra Awhad and others, however, that the police added Sections 302 and 311 of the BNS, and it is now being reported that the bail the accused persons initially secured just a day after their arrest, has now been cancelled.
The victim, Munyar, a resident of Jalgaon, was travelling to his daughter’s home in Kalyan near Mumbai when he was attacked. Such instances of violence not only infringe on individual rights but also pose a serious threat to the secular fabric of our nation, highlighting an urgent need for stronger enforcement of the laws that protect our constitutional rights.
To date, we don’t have a separate law or provision that criminalises mob lynching or provides for a punishment or penalty. In this incident, the police should have filed an FIR automatically after the incident came to their knowledge (reference may be given to the guidelines issued in the Tehseen Poonawalla case), but the FIR was registered three days after the incident, on 31 August.
Measures Laid Down in Tehseen Poonawalla v Union of India
In Tehseen Poonawalla v Union of India, the Supreme Court issued a series of preventive, remedial, and punitive measures to curb the rising incidents of mob violence and lynchings in the country.
The court said that no individual in his own capacity or as a part of a group, which within no time assumes the character of a mob, can take the law into their hands and deal with a person while treating him as guilty.
The court held that this is not only contrary to the paradigm of established legal principles but also inconceivable in a civilised society that respects the fundamental tenets of the rule of law. And, needless to say, such ideas and conceptions not only create a dent in the majesty of law but are also absolutely obnoxious.
The preventive measures and guidelines issued by the Supreme Court are as follows:
Preventive Measures
Appointment of Nodal Officers: The court directed all states to appoint a senior police officer in each district as a Nodal Officer to prevent incidents of mob violence and lynching. The Nodal Officer is responsible for ensuring that the district police take appropriate steps to prevent such incidents.
Intelligence Gathering and Monitoring: The Nodal Officers are to set up a special task force to gather intelligence on individuals likely to incite mob violence. The states are also instructed to monitor social media platforms for inflammatory posts that could lead to mob violence.
Police Patrols and Awareness Campaigns: Regular police patrols in sensitive areas were mandated, along with public awareness campaigns to educate people about the consequences of engaging in mob violence and the legal repercussions of such actions.
Remedial Measures
Swift Registration of FIRs and Investigation: The Supreme Court mandated the prompt registration of FIRs (First Information Reports) in cases of mob violence and lynching, along with a swift and thorough investigation to ensure that perpetrators are quickly brought to justice.
Provision of Compensation: The court directed state governments to formulate a scheme for victim compensation and rehabilitation, ensuring financial assistance and psychological support for victims and their families.
Punitive Measures
Fast-Track Trials: The Supreme Court recommended setting up fast-track courts in each district to expedite the trial of mob violence and lynching cases and emphasised that trials should be completed within six months from the date of the cognisance of the offence.
Stringent Punishments: The court called for stringent punishments for those convicted of mob violence and lynching, including life imprisonment in cases where the violence leads to death.
Action Against Dereliction of Duty: The judgment also stipulated disciplinary action against public officials, including police officers, who fail to prevent mob violence or act in a biased manner.
The Supreme Court came down heavily on the authorities who failed to discharge their duty and register FIRs against the perpetrators of any such incidents of mob violence. The same is reflected in Para 19 of the judgment, where the court observed,
“Lynching is an affront to the rule of law and to the exalted values of the Constitution itself. We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day. Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order. These extrajudicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to [the] rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic. The tumultuous dark clouds of vigilantism have the effect of shrouding the glorious ways of democracy and justice leading to tragic breakdown of the law and transgressing all forms of civility and humanity.”
A Deaf Ear to the Measures Issued by the Supreme Court
The Tehseen Poonawalla judgment was delivered on 17 July 2018 but nothing has changed. Since 2018, there have been more than just a few instances of mob lynchings and there are even cases where the accused have been garlanded by a minister.
In this context, a former judge of the Supreme Court, Justice Madan Lokur, had raised apprehension, “A minister who puts a garland on persons who are convicted of lynching. Is he a reasonable person? If these are reasonable people, then reasonableness has a completely different meaning from what at least, I understood as a student of law."
As the Supreme Court observed in Tehseen Poonawalla, when the vigilantes involve themselves in lynching or any kind of brutality, they, in fact, put the requisite accountability of a citizen to the law on the ventilator. Such core groups cannot be allowed to act as they please. They are no one to punish a person by ascribing any justification, the court added.
.jpg?auto=format%2Ccompress&fmt=webp&width=720)
In Munyar’s case, even his private sphere has been violated. The Supreme Court in Justice KS Puttaswamy v Union of India emphasised that privacy includes the right to make autonomous life choices, including what to eat, wear, and whom to associate with. It is also pertinent to recall what Justice Katju observed in Hinsa Virodhak Sangh v Mirzapur Moti Kuresh Jamat, “These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has hurt the sentiments of their community. These are dangerous tendencies and must be curbed with an iron hand. We are one nation and must respect each other and should have tolerance.”
If we go through the data maintained by the Quint on lynchings across the country, we would get an idea about the modus operandi in and around such incidents. It is now about food, at one point it was about forced nationalism. There has also been bulldozer action against those who had stored beef in their houses. All this has to be. acknowledged by the judiciary.
The Supreme Court recently took note of the bulldozer actions across the country and hinted at formulating some pan-India guidelines to halt these demolitions across the country. It has been reported that the National Crime Records Bureau discontinued collecting hate crime data after 2017, and the term ‘anti-national’ is not defined in law.
The Supreme Court in Shakti Vahini v Union of India, while dealing with the issue of ‘Khap Panchayats’ held that such assemblies should not take the law into their hands and further cannot assume the character of a law implementing agency, for that authority has not been conferred upon them under any law. For example, when a crime under the Indian Penal Code is committed, an assembly of people cannot impose the punishment. They have no authority. They are entitled to lodge an FIR or inform the police.
As of now, we have a judgment that has issued directives to prevent lynchings and mob violence, but what is required is strict compliance of the same. Under Indian law, if an authority is not obeying the guidelines laid down by the courts, then a contempt petition can be filed for non-compliance. The onus vests with police officers and the authorities concerned to take strict action and register an FIR as soon as they come to know that there exists an offence that is cognisable and comes under the umbrella of ‘mob violence or lynching’.
In conclusion, it is relevant to refer to Wilson v Garcia, where the Supreme Court of the United States referred to the debates of Parliament while enacting the Civil Rights Act of 1871, which are relevant in the present context and read as follows,
"While murder is stalking abroad in disguise, while whippings and lynchings and banishing have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of public tribunals are searched in vain for any evidence of effective redress."
(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)