The proliferation, magnitude and ferocity of mob lynching have finally registered an institutional response. On July 17, 2018, the Supreme Court of India responded to a cluster of petitions that had demanded a systematic state response to mob violence, which has increasingly been inflicted in the name cow protection, love jihad and child abduction. The Court had passed interim orders last year, directing the states to nominate senior police officers as nodal officers who were to ensure that “vigilantes” do not take law into their hands. In its latest judgment, the Court went far beyond these measures to lay down a catena of guidelines, binding on the central and state governments, to prevent, remedy and punish these crimes.
The Court, of course, has not laid down any new substantive provisions. Lynching or mob violence is not a new crime. In fact, the Court recommended that the Parliament should take up the job of enacting a new anti-lynching law. But it has formulated procedures that are meant to provide greater accountability and responsiveness within the existing criminal law framework. The state and central governments have been given a month to implement the judgment and file compliance reports.
Emphasising procedural safeguards
The evidence on mob lynching strongly suggests that most cases of violence are far from being mere spontaneous public reactions. In almost all cases covered by human rights organisations and the media, the alleged perpetrators belong to well-organised groups. Victims have often reported being extorted and threatened by cow vigilantes. Many cases of mob lynching follow or accompany circulation of misleading messages and rumours, in all probability, orchestrated at the local level. All this should make us suspicious of any claim that the various incidents in the recent spate of mob violence are unplanned, at least completely so.
In its judgment, the Court recognised that mob violence is not random. It directed state governments to gather data and identify the hotspots of violence within three weeks of the judgment. By laying down guidelines and asking law enforcement to formulate preventive strategies focusing on potential locations and culprits, the Court appreciated the evidence before it that much of the violence in the name of cow protection is planned.
The Court directed state governments to appoint police officers not below the rank of SP as nodal officers in charge of preventing mob violence. These nodal officers must create an infrastructure of intelligence to assess possibilities of violence, periodically patrol sensitive locations and regularly update their policing strategies. The Court also directed the central and state governments to arrange for sensitisation of police officers and convene a dialogue among various stakeholders to identify further preventive measures. Importantly, it directed the government to address the serious problem of misleading and hateful messages, including by filing FIRs under Section 153A, the Indian Penal Code’s provision criminalising words and actions that promote enmity and disharmony among social groups.
The experience of mob violence till now shows that victims and witnesses have been further victimised after the incident. It is extremely rare for the police to take appropriate steps, including lodging FIRs and conducting credible investigations in cases of lynching. Victims’ families are rarely aware of the status of their cases. They have found it next to impossible to procure copies of FIRs and postmortem reports. In most cases, the victims and families have not even been paid the standard compensation due under the state schemes.
This makes the Court’s guidelines pertaining to victims and witnesses crucial. The Court has clearly laid down that the police must immediately file FIRs and file the charge sheets as required under law. It ruled that the families of victims must be kept abreast and involved in the cases. They must also get free legal aid. The Court also directed the state governments to lay down a compensation scheme within a month of the judgment. It also significantly laid down important guidelines to protect victims and witnesses from harassment, including concealing the identity of witnesses if needed.
One of the ways in which victims, their families and witnesses have been intimidated is by threatening them with cross-cases, often under the rigid bovine and anti-cattle slaughter laws. In some states, these laws seem to legitimise a close nexus between the police and cow vigilante groups, in the form of state-backed cow protection cells. Unfortunately, despite being asked to review these laws on the grounds of their abuse, the Court did not address this issue.
Making officials do their duties
Years of experience have shown that one of the biggest hurdles to addressing violence against vulnerable sections is the complicity or indifference of law enforcement agents. Incidents of mob lynching have not been very different, with victim accounts holding police responsible for inaction and sometimes active participation. The formula of holding individual police officers accountable for “dereliction of duty” was famously adopted in the ill-fated Communal Violence Bill. This makes the Court’s guidelines dealing with official accountability perhaps the most far-reaching. The Court has directed the nodal officers to “personally monitor” the investigation of these crimes. It has also held that wherever there is evidence that a government officer, including a police officer has failed to prevent or investigate violence, action will be taken against him. Action will include a departmental inquiry to be concluded within six months.
Another consequential guideline is that cases of lynching and mob violence, including the ones that have occurred before the judgment, are to be heard by fast track courts on a day-to-day basis and decided within six months. This is crucial because the available experience suggests that almost no mob lynching cases have seen any final adjudication. The Court also laid down that the convicted should ordinarily be given the maximum available punished under the IPC.
All this should send a strong signal not only to law enforcement but also state-run prosecution teams to take these matters seriously. One of the common features among the rare prosecutions in lynching cases has been the alleged perpetrators being given bail. In almost all major cases, including the prominent ones like Junaid, Pehlu Khan and Akhlaq, the alleged perpetrators are out on bail. The most appalling example is the case of Alimuddin Ansari, where a fast track court in Ramgarh, Jharkhand, had convicted 11 persons for the gruesome murder of Alimuddin. The case caught national attention partly because the video of the murder, conducted as an execution, was publicly circulated. Despite the conviction, the Ranchi high court gave eight murder convicts bail within three months of their conviction.
Move towards hate crimes
These court-framed regulations have made it incumbent to be precise in defining what constitutes “mob violence” and “lynching” in order for them to operate meaningfully. The court adopted a rather broad definition of lynching as “targeted violence and commission of offences affecting the human body and against private and public property by mobs under the garb of self-assumed and self-appointed protectors of law.” This generality notwithstanding, the harm of mob lynching cannot be understood devoid of the context of social power and vulnerability. The history of mob lynching cannot be separated from the struggle of civil rights movements to address hate crimes against racial minorities.
In one of the most significant moments in the judgment, the court used this category and observed that “hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated.” The petitioners’ arguments that mob violence had targeted minority castes and communities was the undertone of the decision. The court held that the police must “eradicate hostile environment against any community or caste which is targeted in such incidents.” This was necessary to preserve the “secular ethos and pluralistic social fabric.” It recognised that lynching and mob violence are hate crimes, linked to the environment of violence and intimidation against vulnerable castes and communities.
As we move ahead to the implementation of the judgment and a public conversation around further legislative measures, the association among mob violence, hate crimes and social vulnerability deserves to be constantly emphasised.
Mohsin Alam Bhat is an Assistant Professor of Law and the Executive-Director of the Centre for Public Interest Law, at Jindal Global Law School.