Mob violence and cow vigilantism cast a dark shadow over the ideals of justice and harmony. Recognising the gravity of this, in a PIL filed by the National Federation of Indian Women (NFIW), the Supreme Court on July 28 issued a notice to the Ministry of Home Affairs (MHA) and the governments of Maharashtra, Odisha, Haryana, Rajasthan, Bihar and Madhya Pradesh. The SC has asked for a response concerning gruesome incidents of “mob fury” and vigilantism even after comprehensive guidelines were laid down by the Court.
On July 17, 2018, the apex court in Tehseen S Poonawalla vs Union of India & Others, had issued comprehensive guidelines to prevent lynchings and “mob violence”. The Constitution Bench led by the then CJI Dipak Mishra stated that “lynching is an affront to the rule of law and to the exalted values of the Constitution itself. 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”. This ruling profoundly condemned the “horrendous acts of mobocracy”. However, the NFIW sounded an alarm in their plea about escalating incidents of “mob violence”, especially targeting Muslims, particularly by “cow vigilantes”, despite the Court’s 2018 verdict.
Upholding the right to life and liberty as paramount the SC in the Tehseen case laid down comprehensive guidelines under three heads: Preventive measures, remedial measures and punitive measures. First, emphasising the “fear of law” to prevent crimes in a civilised society, the SC outlined various preventive measures for state governments. Among other things, it ordered the appointment of senior police officers as Nodal Officers, along with the formation of special task forces, to gather intelligence on potential perpetrators and propagators of hate speech and to curb their efforts. Additionally, it affirmed the duty of every police officer to disperse a potential “vigilantism mob”, by exercising their power under Section 129 of the CrPC. Second, “remedial measures” were also provided in case of any incident of lynching despite the enforcement of preventive measures. Immediate FIR registration, monitored investigation, formulation of a victim compensation scheme by states, fast track courts, maximum sentence upon conviction, witness protection and free legal aid under the Legal Service Authority Act, 1987 are some of the measures that were put in place to uphold justice and protect the vulnerable. However, with an increase in lynching cases, no adequate action seems to be forthcoming on the part of the state authorities. In a majority of cases, the authorities’ reaction is confined to a mere formality of registering FIRs, lacking the earnest initiation of the full-fledged “criminal machinery”.
Third, “punitive measures” against police officers and district administration were laid down in line with the Arumugam Servai vs State of Tamil Nadu (2011) judgment in case of their failure to comply with the Court’s directions. These guidelines to take disciplinary action against officials for their “negligence” reiterated the state’s duty to maintain law and order to preserve the secular ethos and pluralistic social fabric of India. The recent plea serves as a stark reminder that despite the clarity and gravity of the court’s directives, effective implementation of these guidelines by the states remains a critical concern.
A major hindrance to addressing this menace is the lack of official data on lynchings and hate crimes. The discontinuation of data collection in the mentioned areas in 2017 by the National Crime Records Bureau further complicated matters. The absence of a defined framework for “hate crimes”, “cow vigilantism”, and “lynching” rendered the collected data unreliable, prompting the discontinuation of data collection in these areas. This was the reason MHA gave the Lok Sabha in 2019.
Despite drafting a proper framework to address the issue of valid data collection, it altogether stopped doing so on lynchings. A lack of comprehensive data also makes it challenging for authorities to address and combat this issue effectively. In response to queries about defining “hate crime” in the legal framework, the government emphasised its intention to create a citizen-centric legal structure that prioritises human rights and speedy justice for vulnerable sections of society. Additionally, it was stated that though the term “anti-national” is not defined in statutes, there is criminal legislation and judicial pronouncements to deal firmly with activities detrimental to the unity and integrity of the country. Nevertheless, the need for comprehensive data, categorising “lynching” as a crime under Indian Penal Code (IPC) or a dedicated law remains imperative to effectively tackle and prevent the recurrence of lynchings and mob violence incidents.
To address lynching crimes, states like Manipur, Rajasthan, West Bengal, and Jharkhand have passed legislation but they are still awaiting approval from the President, Governor, or Union ministry. In 2018, Manipur took a pioneering step by passing the Manipur Protection from Mob Violence Bill, proposing life imprisonment for those responsible for mob violence leading to death. However, it is currently under examination by the Ministry, which evaluates state legislation on the grounds of “alignment with central laws”, “adherence to national policies”, and “legal and constitutional validity”. Notably, swift implementation of this Bill could have also significantly deterred the ongoing Manipur crisis.
In recent years, the country has witnessed brutal attacks and killings fuelled by rumours, fake news, food choices, and alleged religious offences against religious sentiments. Simultaneously, the Centre’s lackadaisical approach has invited questions about its commitment to preventing mob violence, which also creates an unnecessary hurdle for the uncut implementation of the SC guidelines. This runs contrary to the duty of the states to strive, incessantly and consistently, to promote fraternity amongst all citizens so that the dignity of every citizen is protected, nourished and promoted, as was clarified in Nandini Sundar and Others vs the State of Chhattisgarh.
Lynchings discriminate against a whole community and violate Articles 14, 15 and 21 of the Constitution. Thus, “it is the seminal requirement of law that an accused is booked under the law and is dealt with in accordance with the procedure without any obstruction so that substantive justice is done”, the apex court observed in the Tehseen case. This cannot be achieved without defining the “act of lynching” in the IPC or drafting special laws and conforming with the SC’s guidelines.
Additionally, it is imperative to achieve our constitutional aim of “unity in diversity” which was highlighted in the case of St Stephen’s College vs the University of Delhi, wherein the court observed that the Constitution aims to foster unity by embracing and enriching the diversity amongst Indians encompassing geographical, religious, linguistic, racial, and cultural differences. Further, in the realm of crime, distinctions of religion, race, caste, or class hold no sway and neither the perpetrator nor the victim can be viewed through the lens of race, caste, class or religion. Therefore, the state must protect the fundamental rights and freedoms of every individual transcending all boundaries. India’s constitutional mandate that champions plurality of voices, must never be suppressed. Stifling free voices can never bode well for a true democracy.
Swarup, IAS (Retired), is former coal and school education secretary of India and the author of the trilogy, Not Just a Civil Servant, Ethical Dilemmas of a Civil Servant and No More a Civil Servant. Singh is a fourth-year student at the Rajiv Gandhi National University of Law, Punjab
