INTRODUCTION

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”  – George Orwell.

Over the last five years, India has been thunderstruck by a growing number of informal public executions or extrajudicial killings commonly recognized under the term “Mob Lynching”. However, recently it has taken the form of an epidemic potent enough to cause a collapse in our law and order system. It has also resulted in a heightened sense of insecurity among the public. Under the social contract theory, it is the principal duty of a state to protect the fundamental rights of its citizens. The very existence of phenomena like mob lynching challenges the authority of the state as well as casts a shadow on the justice system. Such extreme violent reaction to dissent of any nature undermines the progression and formation of a liberal society. In order to tackle this situation, the Supreme Court passed a series of preventive, remedial and punitive measures in the landmark case of Tehseen S. Poonawalla vs. Union of India (UOI) and Ors. (17.07.2018 – SC): MANU/SC/0738/2018.The judgment was delivered by Former CJI Dipak Misra led bench comprising of A.M Khanwilkar and Dr.D.Y.Chandrachud, JJ. While the judgment may be appreciated for being highly critical of the incidents of mob lynching and passing guidelines to completely overhaul the law enforcement system in this regard, it is salient to note that it has miscarried in every aspect of implementation and has caused pitiful shifting the manner in which this abominable crime was handled before the passing of this judgment.

ANALYSING THE APERTURES

This judgment lays down certain suggestions which should have eliminated or at least drastically reduced this crime. Some of them are discussed below along with the way in which they have malfunctioned:

It is critical to note that the judgment has three parts as guidelines, namely preventive, remedial and punitive. Much emphasis was given on the preventive part in order to paralyze the commission of this crime in its initial stages. The court suggested that the formation of a special task force to procure intelligence reports on subjects likely to commit or incite such offence. The Director-General of Police and Secretary of Home Department of the States were directed to take regular meetings at least once a quarter with all nodal officers and State Police Intelligence Heads. The question arises whether such meetings have been transformed into reality and what are their outcomes? If the answer is optimistic, then it casts severe doubt on their efficacy as crime rates relating to mob lynching are on the rise.

One of the most effective methods of controlling such crime was suggested by Senior Counsel Ms. Indira Jaising. She proposed for police patrol in sensitive areas. No such initiatives have been reported in the likes such as incidents being halted by patrolling police cars. Rather in several instances, the family members of the victim and witnesses of the crime have reported that delay in arrival of the police was a major cause for aggravation of the situation leading to the victim’s death and effective deployment of police personnel could have prevented the crime from taking place.

The Court also recommended the Parliament to create a specialized offence for mob lynching and allocate adequate punishment for the same. Despite the Court’s inclination for a special law, the Centre which is responsible for legislation in Parliament did not implement the Court’s recommendation. The Centre constituted a group of Ministers (GoM) for the purpose of considering the nature of legislation to be brought in. The idea of the creation of a special law seems far from reality in light of such slothful developments.

While the Supreme Court cited various insightful literature of American Civil Rights movement proponent Martin Luther King Jr. and American Jurisprudence on Liberty etc., it failed to provide a concrete and realistic definition of mob lynching in its judgment which has left the parliament open to initiate an endless debate as to what constitutes this crime and the methodology and quantum of punishment. In the absence of this much-needed definition the crime of mob lynching is being dealt with a general manner since it is partly covered under Section 302 (murder), 307 (attempt to murder), 323 (causing voluntary hurt), 147 (rioting), 148 (rioting armed with deadly weapons) and 149 (unlawful assembly) of the Indian Penal Code(IPC), 1860. This has utterly violated the idea of a separate crime and has decimated the required attention with regard to the sensitivity of this crime.

The Hon’ble Supreme Court’s guidelines have also been neglected in the context of the failure of the Centre and state governments to follow the direction to broadcast on radio and television that lynching and mob violence of any kind would attract severe consequences under the law. The concluding recommendation of the case was a creation of a separate offence for lynching, however, as of now NCRB (National Crime Records Bureau) neither recognizes ‘Mob Lynching’ as a separate branch of crime nor maintains separate statistics on it.

DISSECTING THE EXECUTION OF THE JUDGMENT

While the landmark case speculated about compensatory scheme and free legal aid for the victims while directing that the victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.In reality Pehlu Khan’s(victim of Mob Lynching killed in Alwar(Rajasthan), 2017) family is barely surviving due to the financial drainage for their want of justice.

The SC cited the methodology in which the American Courts dealt with mob lynching:

“The American Courts deplored this menace and dealt it with iron hands so as to eradicate the same. Ex parte Riggins C.C.N.D. Ala. (1904) 134 Fed. 404 was a case involving the lynching of a Negro citizen who had been imprisoned on the charge of murder. While he was imprisoned in jail, the mob removed him and lynched him by hanging.”

However, it is both ironic and unfortunate as a similar incident took place in India which solidifies the failure of the law enforcement departments and challenges the very sanctity of this judgment. On 26th November 2018 the National Human Rights Commission (NHRC) took suo moto cognizance of media reports of 28 years old Rajendra who was pulled out of a police van and beaten to death by a mob in the presence of Constables in Shamli, Uttar Pradesh.

The sanctity of the entire judgment crumbled when a man named Rakbar Khan was brutally lynched even before the ink of this judgment had dried. It has been repeatedly alleged that the slothful actions of the police and their eventual failure in getting the victim his required medical attention has played a pivotal role in Khan’s death. This case amply voices the judgment’s two-pronged approach to punish not only the perpetrator but also the police, for if they had acted on time the victim’s life could have been saved and in the contrary equal liability must be placed on them.

After a profusion of petitions on July 26, 2019, the bench comprising the Former Chief Justice of India, Ranjan Gogoi, and Justice Deepak Gupta sought response from the Centre and 10 states on a petition alleging that they had not implemented the directions issued by the Court in that judgment.

Till now it has been established that mob lynching is a crime that is immune to the justice system as well as the law enforcement departments. It has also received attention in the International forum which has not only humiliated the law enforcement departments but also the justice system of India. Taking cognizance of a report filed with OHCHR (Office of the United Nations High Commissioner for Human Rights) on the mob lynching of Tabrez Ansari, United Nations has asked for the details of the case in order to initiate an investigation. This issue was also heard at the United Nations (UN)’s Security Council meeting held at the UN headquarters in New York on July 1, 2019, during the 17th Meeting of the 41st Regular Session that was held before the UN’s Human Rights Council.

CONCLUSION

The brutal incident of mob lynching violates the rule of law and totally diminishes fundamental jurisprudential concepts like ‘fair trial’ and ‘innocent until proven guilty’.  As the Apex Court observed, bystander apathy and numbness of the mute spectators of the crime scene coupled with inefficient legislation and even woeful implementation facilitates this epidemic to manifest the entire country in a state of anarchy and lawlessness. The sole solution to this inhumane epidemic is to adopt a zero-tolerance approach towards this crime coupled with rapid legislation and prompt implementation.

The article has been written by Priyadarshee Mukhopadhyay

This article was first published in the Blog namely The Criminal Law Blog