Judiciary must take proactive steps to stop lynching, punish perpetrators.
Judicial apathy sends terribly wrong signals to future perpetrators, who may justifiably believe that they may ultimately be acquitted, and in any case will be bailed out pending trials.
The judgment of the SC binds all civil and judicial authorities in the country by virtue of Article 144 of the Constitution.
On January 1, Prime Minister Narendra Modi in an ANI interview spoke on lynchings: “Any such incident does not reflect well on a civilised society… This is totally wrong and condemnable… For improving this situation, we should all work collectively. There should be no such incident in the society.” Later, in June, while speaking in Rajya Sabha, the PM again said, “The lynching (in Jharkhand) has pained me. It has saddened others, too”.
The constitution bench of the Supreme Court of India in its judgment dated July 17, 2018 while dealing with W.P. (C) No. 754 of 2016 held, “There can be no shadow of doubt that the authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism, be it cow vigilantism or any other vigilantism of any perception, does not take place.” It observed, “…When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society”. It also held, “Lynching is an affront to the rule of law and to the exalted values of the Constitution itself”. The Court further held, “Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror…”
Therefore, the Court, while laying down various guidelines for the central and state governments — including preventive, ameliorative and punitive measures — directed the appointment of nodal officers by the police in each district of every state in this regard, observing, “… we think it appropriate to recommend to the legislature, that is, the Parliament, to create a separate offence for lynching and provide adequate punishment for the same…” to instill fear of law amongst perpetrators.
The judgment of the SC binds all civil and judicial authorities in the country by virtue of Article 144 of the Constitution. So, the October 4 order by the chief judicial magistrate of Muzaffarpur, Surya Kant Tiwari is, to say the least, worrisome in so far as he entertained a petition by a serial litigant, which had no basis whatsoever in the eyes of law, directing the police to register an FIR against 49 eminent citizens who had written a letter to the PM to intervene and stop lynchings. The petition claimed that by their letter, “they had tarnished the image of the country and undermined impressive achievements of the Prime Minister”. The order passed by the CJM and the subsequent registration of the FIR are not just unconstitutional, but entirely illegal and perverse. The CJM surely ignored not just the rule of law but a binding judgment of the Supreme Court. Does the CJM suggest that even the PM can be proceeded against for his statements? The CJM, in this case, needs to be proceeded against by the concerned high court administratively for having abused his office. One hopes that the high court would intervene.
But, this incident brings to fore the role of the judiciary. Though the right to life is a Fundamental Right, which the state including the executive and judiciary is bound to protect, the violations in these types of cases go, more often than not, unpunished or under-punished. In a large number of cases of this kind, the judges, including those in the higher judiciary, have been extremely lenient towards the perpetrators. As a result, acquittals in virtually open-and-shut cases have come at regular intervals, as in the Pehlu Khan lynching case. The orders for granting bail by the Jharkhand High Court in the Ramgarh lynching case, by the Allahabad high court in Bulandshahr lynching case, by the Bombay High Court in Dhule lynching case, by the Punjab and Haryana High Court in Junaid lynching case, and, by the sessions court in Hapur lynching case, are some of the instances which raise serious question marks on the judicial approach of the courts in India towards such heinous crimes. The grant of bail to the convicted and accused in the Gujarat riot cases — where hundreds were killed in the Gulbarg Society massacre and the Naroda Patiya massacre — by the Supreme Court and the Gujarat High Court, add to this list of avoidable decisions. All this is compounded by the approach of the police in improperly investigating cases and not taking them to their logical end before the courts. Clearly, the judiciary needs to undergo extensive sensitisation programmes to deal with such matters.
Judicial apathy sends terribly wrong signals to future perpetrators, who may justifiably believe that they may ultimately be acquitted, and in any case will be bailed out pending trials. Far from instilling fear of law, such decisions remove that fear. The time has come for the SC and the high courts to take up such cases of acquittals/grant of bails suo motu, and pass appropriate orders after hearing concerned parties. The Supreme Court in its February 8, 2018 judgment — while setting aside the judgment of Bombay High Court granting bail to the accused who had killed one Shaikh Mohsin in Pune — observed: “We have no doubt that a court fully conscious of plural composition of the court while called upon to deal with rights of various communities cannot make such observations which may appear to be coloured/biased for/or against a community. that the fact the deceased belongs to a certain community cannot be a justification for any assault much less a murder.”
This should be the approach of the entire judiciary, which is the ultimate protector of the Right to Life as guaranteed under Article 21 of the Constitution. One hopes that the SC takes definite steps in this direction.
This article first appeared in the October 19 print edition under the title ‘Supreme protection’ The author is a senior advocate of the Supreme Court of India
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