India Needs a Law Akin To SC/ST Act To Truly Protect Muslims
Assault over religion is different from general altercation, and the legal system needs to acknowledge that.
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Recently, a Muslim e-rickshaw driver was paraded through a street, assaulted and allegedly forced to chant ‘Jai Shri Ram’ by a group of men in Kanpur. The most disturbing part of the video shared widely over social media was his crying little daughter clinging to him and pleading desperately with the assailants to spare him. Later, as NDTV reported, a mob of Bajrang Dal workers held a protest outside the police station and left only after “assurances” from the police.
The accused were given bail immediately. The case against them was registered under Sections 147 (rioting; punishment two years), 323 (simple hurt; punishment one year), 504 (intentional insult with intent to provoke breach of peace; punishment two years) and 506 (criminal intimidation; punishment two years) of the Indian Penal Code (IPC). These are bailable sections and under the 2008 amendment to Section 41 of the Criminal Procedure Code (CrPC ), arrest is not mandatory for offences involving less than seven years imprisonment. As such, the police was technically correct in giving bail to them.
The problem lies both with the law and the “selective” manner in which it is applied. The police did not think it proper to initiate proceedings against the mob under Section 107 of the CrPC (security for keeping peace) either. The drama of the SP visiting the girl’s home would never heal the scars.
‘Jai Shri Ram’: From a Greeting To a Battle Cry
From a sociological and historico-cultural perspective, ‘Jai Shri Ram’ is a relatively recent phenomenon. Almost all over the Hindi belt, people had been saying ‘Ram Ram’, ‘Jai Ram ji ki’ or ‘Jai Siya Ram’ as a form of greeting for ages. ‘Jai Shri Ram’ as a battle cry came to be heard in Ramanand Sagar’s popular TV serial ‘Ramayan’. It spread during the agitation for the Ram Temple at Ayodhya. From a greeting, the invocation of Ram acquired a more aggressive and assertive character in ‘Jai Shri Ram’, akin to a battle cry.
There have been many other incidents, too, in which people have been insulted on account of their religion, while simultaneously, other IPC offences like assault are committed on them.
Recently, Yaqut Ali, reporter of The Wire, could extricate himself to safety only after raising the slogan of ‘Jai Shri Ram’ at Dwaraka, New Delhi, when he had gone to cover a mob protesting against the proposed construction of the Haj House there.
In January, a Muslim youth was allegedly manhandled and forced to chant ‘Jai Shri Ram’ at Auto Nagar area in Kurnool, Andhra Pradesh. In July 2019, some madrasa students playing cricket in the Government Inter College Unnao ground were allegedly beaten up and forced to chant ‘Jai Shri Ram’. The same month, a similar incident took place in Barpeta, Assam, where a group of young Muslim men were assaulted and then made to chant slogans like ‘Jai Shri Ram’, ‘Bharat Mata ki Jai’ and ‘Pakistan murdabad’. In Mumbai, a taxi driver named Faizal Usman Khan reported the same. This slogan of ‘Pakistan murdabad’ was also forced upon a man assaulted in Khajuri, Delhi in 2021. In June 2019, Tabrez Ansari was lynched to death in Jharkhand, before which he was made to chant ‘Jai Shri Ram’ and ‘Jai Hanuman’. In April 2017, a video (perhaps from western Uttar Pradesh) was in circulation, which showed a Muslim man pulled inside a car owned by unknown persons. They forced him to chant ‘Jai Shri Ram’, threatened and abused him for not saying it loud enough.
Punishment Must Consider the Depravity of Crime
Is there no difference between a mob beating up, for example, a Muslim over a ‘secular’ altercation (that is, one not involving any religious angle — for example, a minor traffic accident) and a mob assaulting the same man in exactly the same manner over an altercation involving a religious angle (say, alleging an inter-faith marriage, which they could dub ‘love jihad’; forced conversion or cow slaughter, etc.) while forcing him to chant ‘Jai Shri Ram’?
That the moral depravity of a crime depends on its attendant ‘social’ circumstances has already been accepted by the nation. Even for a crime of lust such as rape, the law does distinguish between one-on-one rape by individuals, gang rape, and rapes by persons in position of trust or authority, such as a police officer, a public servant, a member of armed forces, a person on the management or on the staff of a jail, remand home or other places of custody, or women’s or children’s institution, a person on the management or on the staff of a hospital, or a repeat offender. The law also distinguishes the rape of an adult woman from that of a woman less than 12 years of age.
The law acknowledges that in all those situations, the victim is in a much more disadvantageous or helpless position vis-à-vis the perpetrators who are asserting their dominance over her, and hence they deserve higher punishment on account of the greater moral depravity.
The same moral philosophy was accepted in the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. That people belonging to SC and ST groups have been socially disadvantaged and hence need the protection of the law was evident from a parliamentary debate on the subject.
While introducing the Bill, the government itself admitted the ineffectiveness of the existing laws to check atrocities on them. During the debate, a reference was made to “the betterment, welfare and protection of those poor and helpless people who were being subjected to various atrocities since long”. It was also pointed out that even as atrocities are committed on them, no one dared to give evidence in their favour at the cost of enmity with powerful people.
It’s Not Just Hate Speech
Forcing someone to chant ‘Jai Shri Ram’ under threat of serious injury is obviously an atrocity. It amounts to an acknowledgement of ‘defeat’ by the victim. It means he has been ‘defeated’ by men of other religion and that they are asserting their dominance over him and his religion by making him chant something, which he would otherwise be averse to.
This must be distinguished from ‘hate speeches’. Hate speeches or insulting references to other religions have the potential of provoking violence later but the offence is committed without involving any victim. There is no assertion of dominance in them.
A threat of ‘Hindustan mein rehna hai to Jai Shri Ram kehna hoga’ (If one has to live in India, they’ll have to chant Jai Shri Ram) or forcing someone to chant ‘Jai Shri Ram’ while they are at your mercy is an assertion of dominance.
A situation similar to the SCs/STs exists with Muslims today. The incidents from across the country narrated above ought not to be dismissed as freak incidents. We would be guilty of denying the obvious truth if we refuse to acknowledge the social forces driving such behaviour. Policemen were present on the spot a few feet away when the incident of Kanpur took place and their presence had no deterrent effect on the mob.
There is no running away from the fact that such people are emboldened by the fact that at least in their unmistakable perception, the police would be reluctant to take strong action against them. In all probability, they would be free after a little initial discomfort, if at all it comes to that.
Zafar Aafaq & Alishan Jafri reported in Article 14 that for the latest incident of hate speech at Jantar Mantar, the case was registered under Sections 188 (disobedience to order duly promulgated by public servant), 260 (using as genuine a government stamp known to be a counterfeit), 269 (negligent act likely to spread infection of disease dangerous to life); Section 3 of The Epidemic Diseases Act, 1897 (penalty for offence under section 188) and section 51B of the Disaster Management Act, 2005 (refusal to comply with any direction given by the government).
Sections such as 295A (deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs: punishment three years) and 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony; punishment three years) IPC meant specifically for hate speech were not invoked.
Given such a situation, it makes sense if a law similar to the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 is enacted for the Muslims, too, where an offence is accompanied by insult or humiliation on account of religion.
But Can a Law Alone Help?
I am acutely aware that given the notorious track record of partisan behaviour of the police, enacting the law might not help change the situation materially on the ground. However, the government would have, at least, made its intentions clear.
The execution of the law on the ground has historically depended on myriad factors in which local power politics, inherent biases of the police and socio-economic condition of the victims, etc. all play a part. Surabhi Chopra et al of Centre for Equity Studies, in their research ‘Accountability for Mass Violence: Examining the State’s Record’, have shown that despite some 25,628 lives having been lost in communal violence since Independence, there is massive bungling by the police at every stage.
The enactment of such a law would, however, inspire some confidence in the Muslim community, which is rapidly losing faith in the rule of law.
(Dr. N.C. Asthana, a retired IPS officer, has been DGP Kerala and a long-time ADG CRPF and BSF. He tweets @NcAsthana. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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