Hafiz Junaid. DSP Ayub Pandith. Zafar Khan. Ravindra Kumar. Pehlu Khan.
This is just a non-exhaustive list of people lynched by mobs in India since April 2017. The full list of such lynchings seems to be growing every day, despite public condemnation as seen in the #NotInMyName protests, or even the occasional condemnation from the Prime Minister.
Junaid’s mother.
(Photo: The Quint)
Proposals to address spate of lynchings in new law, Maanav Suraksha Kanoon.
Current laws can prosecute mob lynchings, but there are issues with implementation.
Pros:
Draft MASUKA has good ideas like making police responsible, compensation for victims’ families, and witness protection.
Cons:
Ambiguities could lead to ineffectiveness and misuse, timeline is too short.
Verdict:
Good points should at least be incorporated into existing law.
With perpetrators seemingly unconcerned about the consequences of their actions, and no convictions or punishments for those responsible for even high-profile cases, one has to wonder if the laws of this country are equipped to deal with this epidemic of mob lynching.
As a result, there is a growing movement to promote a new law, a Maanav Suraksha Kanoon (or “MASUKA”) to deal with the rash of mob lynchings across the country. But what is MASUKA and where has it come from? And is it really the solution to the problem?
The Announcement of MASUKA
On 5 June 2017, the National Campaign Against Mob Lynching was launched by a collective of young leaders from different backgrounds and political affiliations. The core members of the group are activist Tehseen Poonawalla, JNU Vice-President Shehla Rashid, Dalit leader Jignesh Mewani, former JNU President Kanhaiya Kumar and Samajwadi Party spokesperson Pankhuri Pathak.
The cornerstone of the campaign is a push for a new, consolidated law on mob lynchings in India. A Drafting Committee headed by Supreme Court senior advocate Sanjay Hegde has been set up to prepare a draft Bill.
The Drafting Committee too is a diverse body comprising people from a variety of backgrounds.
The draft Bill is to be released next week to the public for inputs, comments and review. The Campaign will then push for it to be enacted by the Central Government. The Campaign has publicly expressed confidence that the Centre and States will be amenable to this proposal, as, they feel current laws are inadequate.
What Are the Current Laws That Deal With Mob Lynchings?
There is no reason why lynching cannot be prosecuted under current Indian law. Murder in any form, whether by a lone killer or a seething mob, falls within under Section 302 of the Indian Penal Code.
Depending on the facts of the case, other charges such as attempted murder (Section 307, applicable, for example, if Junaid’s brother Shakir does not die of his wounds), causing hurt (Section 323) or grievous hurt (Section 325), or culpable homicide (Section 304), can all apply to mob lynching cases.
Current law also covers the special circumstances that relate to lynchings – the involvement of a mob, a common purpose (which may even have been slightly different at the start), the violence of the mob, and the influencing of the mob by a person or persons.
Under Section 34 of the IPC, all members of a group which was gathered for a common intention will be liable for any crime committed in furtherance of that intention.
This could even be a different crime from the one originally intended. While common intention generally requires a pre-arranged plan, the Supreme Court has previously clarified that it can also develop on the spot, depending on the facts and circumstances.
A group of five or more people also becomes an “unlawful assembly” under the IPC where the common objective of the persons in it is to commit an offence (Section 141). Every member of an unlawful assembly is guilty of any crime committed pursuant to the common object of the assembly, or any crime they knew was likely to be committed for the common object (Section 149).
If an unlawful assembly commits any violence, the matter escalates into one of rioting (Sections 147 and 148).
While all these provisions deal with people present in the mob, a charge of criminal conspiracy (Section 120B) can attach to those involved in planning and instigating the mob. This could apply to those spreading the word in person or on forums like Whatsapp.
So What’s The Need For a New Law Then?
It is evident that there is no dearth of provisions in current law to deal with mob lynchings. Why, then, is MASUKA being proposed?
According to Tehseen Poonawalla, the existing legal provisions do not deal specifically with lynching as an offence, and:
...there is no provision for compensation, no provision for rehabilitation of the families, there is no provision for speedy justice.
Anas Tanwir, one of the lawyers responsible for the draft Bill, points out that the law needs to respond, and has responded, when it is seen that a particular type of crime is on the rise, or where there is a clear need for enhanced protections in the law. He cites the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 and the Protection of Women from Domestic Violence Act 2005, as examples of cases where the legislature stepped up to ensure the law was strong enough.
By preparing a separate draft law, all the various facets of a mob lynching can be punished without having to tie together different provisions to build a case. It will also be able to tackle issues such as the dissemination of false rumours and exhortation of mobs.
Sanjay Hegde believes that the biggest shortcoming of the existing legal treatment of mob lynchings is that a key factor in how these lynchings takes place is not covered by it – the police. MASUKA is being drafted to specifically ensure that this issue is addressed.
Pros
Addresses police inaction and complicity.
Special courts for speedy justice.
Rehabilitation and compensation for victims’ families.
Witness protection.
Hegde’s point about countering police inaction is one that resonates, and could prove to be the most eye-catching of the Campaign’s proposals. The draft Bill includes a provision that will hold the local SHO responsible for any lynchings which take place in their jurisdiction – subject to a time-bound judicial probe to ascertain whether the events were truly out of their control.
Anas Tanwir believes that this will play a key role in preventing mob lynchings, as the police will take extra care to nip such incidents in the bud, and will be more proactive in stopping them when they happen. Inefficiencies in implementation of existing law should also be countered by making the police feel responsible.
The draft Bill also seeks to address a number of issues that arise after an incident takes place.
First, it will set up designated special courts to hear lynching cases, like those set up under the Protection of Children from Sexual Offences Act 2012. This should help ensure speedy justice, and demonstrate the intent of the law to prevent any problems.
Secondly, it will include provisions for rehabilitation of victims’ families through mandatory payment of compensation by state governments, rather than leave this up to the benevolence of local governments. Fines collected from those convicted under MASUKA will also be distributed to the families.
Thirdly, a number of witness protection provisions are to be included that will help ensure that witnesses to the lynchings are not afraid to speak out, as is proving the case in the Ballabhgarh incident. The police and the courts will have to protect the identities of witnesses, and there will be punishments for leaking of this information.
Cons
Ambiguities in definition of lynching.
Potential for misuse.
Procedural issues.
Timeline too short.
There can be no doubt that MASUKA is well-intentioned. It is also, as Tehseen and Shahzad Poonawalla take pains to emphasise, being drafted with care to ensure that it does not only apply to lynchings of victims belonging to a specific community, or for limited reasons like suspicions of cow slaughter. This should help make it palatable even to those who represent different political interests from the Campaign, whether in government or on Twitter or in the village square.
However, even if sufficient political will were to exist to make MASUKA happen, there are a number of challenges that any draft legislation will need to successfully overcome.
At the outset, there is severe difficulty in defining the limits of what this law will cover. The proposed definition in the draft Bill seeks to define lynching as extra-judicial punishment that is caused because the mob looks to enforce some societal or cultural norms. This definition includes a number of entirely new terms, which do not have established legal meanings, which raises the potential of it being considered too ambiguous.
The consolidation of elements of the offence into one single Act on paper sounds like it will make it easier to conduct prosecutions, but any issues with drafting can lead to the opposite result. Vague or problematic definitions and terms will be challenged constantly, delaying proceedings, and there is no established precedent to rely on.
Ambiguities can also lead to a misuse of the law, so that it begins to be used to cause trouble for any gathering of people, even for lawful purposes.
There are also some procedural issues to consider. The draft Bill looks to criminalise the dissemination of false rumours and exhortations to the mob to gather and act. With much of this happening on online platforms such as Whatsapp, which are encrypted, it may actually prove difficult to find and prove in court who instigated the offences. Identification of participants in mob violence is also not easy, and it is difficult to see how this can be improved in MASUKA.
Verdict – Implement the Good, Carefully
There are some sound ideas in the draft of MASUKA that is being prepared, and these should most certainly become part of the law. At the same time, if the Drafting Committee is not able to iron out its ambiguities, MASUKA as a separate legislation will not be a wise option. However, with Poonawalla and Hegde both acknowledging that the provisions could instead be implemented as amendments to existing law, it may be possible to ensure that some of those good points see the light of day.
The big question will be what kind of political will can be mustered for this law in the first place. The Campaign is taking the view that the government will surely look at the problem, and in light of public condemnation of mob violence, see that there is no reason to oppose them. They want the Act to be passed in the Monsoon Session of Parliament, failing which they intend mobilise the public to argue for it.
This short timeline, while relevant in light of recent incidents, could become MASUKA’s undoing. A short timeline means the draft is likely to have more flaws and less time for public consultation will mean less scrutiny of these flaws. The Government may also not want to make a decision so quickly, with so much political capital at stake.
Even so, the MASUKA movement is of value. It opens a conversation about a problem that is affecting the entire country. It brings legal and political minds together to try and find a solution. And doing so may just save lives in the years to come.
Video Editor: Mohd Irshad Alam
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