GROWING LAWLESSNESS IN INDIA: AN ANALYSIS OF PREVENTIVE MEASURES
Author: Jaspreet Kaur Grewal, B.A.,LL.B.LL.M.
Atrocities by mob
Mob violence/ lyching
Mob as defined under Section 3(b) of The Protection from Lynching Act, 2017 means- ‘group of two or more individuals, assembled with an intention of lynching.
Lynching as defined under Section 3(a) means- “any act or series of acts of violence, whether spontaneous or planned, committed to inflict extra judicial punishment, or an act of protest and caused by the desire of a mob to enforce upon a person or group of persons any perceived legal, societal and cultural norms or prejudices.”
Although offence of mob lynching is not provided under Indian Penal Code yet there are certain provisions which penalize the culprit for committing such offence such as- Section 323- voluntarily causing hurt, Section 324- voluntarily causing hurt by dangerous weapons or means, Section 326- Grievous hurt, Section 302- Murder, Section 307- Attempt to Murder, Section 147- Rioting, Section 149- Every member of unlawful assembly guilty of offence which is committed in prosecution of common object, Section 153A- Promoting enmity between groups and acts prejudicial to maintenance of harmony, Section 153B- Acts prejudicial to maintenance of national integration, Section 295A- acts intending to outrage religious feelings.
When more than one person is involved in committing an offence, they are charged and tried together under Section 223(a) of the CrPC if they acted in the course of same transaction.
The Supreme Court[i]observed lynching as a ‘horrendous act of mobocracy’ and it laid down various guidelines to be followed in case any mob violence/ lynching incident occurs and directed Centre and States to legislate law related to it. The guidelines are as follow:
i. A senior police official not below the rank of Superintendent of Police, shall be designated as Nodal officer in every district by the State government. One of the DSP rank officer in that district will assist him to take preventive measures in order to prevent occurrence of mob violence and lynching. A special task force can be formed by them to obtain intelligence information about the individuals who may likely commit such offences or who are involved in spreading hate speeches, fake news and make statements which are provocative.
ii. The court directed the State governments to immediately identify the past mob violence and lynching incidents that happened within the District, Sub-divisions and/or villages in the last 5 years and this identification task shall be completed within three weeks period from the date of this judgment. The court said that this period is sufficient to complete identification in today’s fast world of date collection.
iii. The Nodal officers of the districts shall be issued directives or advisories by the Secretary, Home Department of the concerned States to ensure that the officer-in-charge of the Police Station of the identified places are vigilant in case any incident of mob violence and lynching is reported within their jurisdiction.
iv. The designated Nodal officer shall hold regular meetings once a month with the local intelligence units and all the Station House officers in that district so as to identify the existing tendencies of vigilantism, mob violence and lynching. It shall take measures to prevent the incidents of dissemination of offensive material through social media or other means used for inciting such tendencies. Effective efforts shall be made by the Nodal Officer to eliminate intimidating atmosphere within the community or caste which is being targeted in such incidents.
v. Regular review meetings can be held by the Director General of Police, Home Department of the concerned States with all the Nodal Officers and State Police Intelligence heads. These meetings shall be held at least once a quarter. The purpose of these meetings is to inform the DGP regarding any inter-district co-ordination issues to plan a strategy to tackle lynching and mob violence issues happening at the State level.
vi. Every police officer is duty bound under Section 129 of the CrPC to disperse the mob if in his opinion such mob tends to cause violence or create any kind of chaos by lynching in pretext of vigilantism.
i. Besides taking preventive measures to prevent mob lynching incidents, it is the duty of State police to register FIR without any delay when any incidents of mob lynching comes to its notice. This FIR shall be lodges by the local police of the state within whose jurisdiction that incident occurred.
ii. Station House officer shall immediately inform the Nodal officer in that District about the FIR registered in his police state. Then it becomes duty of that Nodal officer to make sure that victim’s family members do not suffer any kind of harassment.
iii. Monitoring investigation in such cases is the duty of Nodal officer of the district and he shall ensure that effective investigation is being conducted and that the charge-sheet is filed within the limitation period from the date of lodging of FIR or arrest of accused.
iv. A mob lynching or mob violence victim compensation scheme is prepared in accordance with the provisions of Section 357A of Criminal Procedure Code, 1973 within one month period from the date of judgment. The State Government shall consider the following factors while computing the compensation:
a) Nature of bodily injury caused
b) Psychological injury
c) Loss of earnings of victim
d) Loss of opportunities of employment and education
e) Expenses incurred on account of legal and medical expenses.
The victim or kin of the deceased in mob violence incident shall be paid interim relief within 30 days from the date of incident.
v. Day to day basis trial shall be held in designated courts or Fast track courts established to try lynching and mob violence cases. Such trial should be disposed off within a period of six months from the date of taking cognizance. It is the duty of the District Judge to assign all the cases related to the incident to one jurisdictional court. Nodal officer shall ensure that prosecuting agency plays its role strictly for proper furtherance of the proceedings of the case.
vi. Accused must be awarded with maximum imprisonment for offences committed under Indian Penal Code, so as to set an example and deter people from committing such offences.
vii. The courts before whom trial of mob lynching cases takes place shall take measures to protect and conceal the identity and address of the witness in such cases. These measures can be taken either on the application of the witness or by the court of its own motion.
viii. Notice of court proceedings in mob violence cases shall be given to the victim/s or kin of the deceased, so that he is given opportunity of being heard at the trial in relation to bail application, discharge, release or application for parole filed by the accused before the court. They also has the right to file written submissions on conviction, acquittal or sentence awarded.
ix. Victim/s or next kin of the deceased victim in such cases shall have a right to free legal aid if he chooses and engage any advocate of his choice from the advocates who are enrolled in the Legal Aid Panel under the Legal Services Authorities Act, 1987.
i. If it is found that any police official or the district administration officer failed to follow any of the above directions issued by the apex court for prevention and investigating or in facilitating the speedy disposal of the case related to mob violence and lynching then it would be considered-
An act of deliberate negligence, and/or
Such negligence or misconduct demands action against such officer and it will not be limited to any departmental action under the service rules. This departmental action shall be concluded within 6 months by authority of I instance.
ii. In respect to the verdict of apex court in Arumugam Servai v. State of Tamil Nadu,[ii] directions were issued to the States to take disciplinary action against the concerned officers if its found that-
Officers did not prevent the mob violence and lynching although they had knowledge about it occurrence, or
If the incident already occurred and that officer did not act immediately to apprehend and institute criminal proceedings against the guilty persons.
Mob Lynching Incidents
i. Dadri Mob lynching incident 2015
This is the most atrocious incident of cow vigilantism against a Muslim man. FIR was registered against Mohd. Akhlaq and his brother for slaughtering a calf. Mohammad Akhlaq was lynched and his son was inflicted with serious injuries on the suspicion of consuming and storing beef.[iii] His family was given Rs. 45 Lakh Compensation and four flats in Greater Noida.
ii. Jharkhand mob lynching, 2019
Tabrez Ansari who went to another town for a visit was lynched here on the suspicion of theft of a bicycle. The video of the incident went viral on social media showing accused chanting ‘Jai Hanuman’ ‘Jai Shree Ram’ due to which the incident was looked upon as anti-muslim mob lynching incident. Tabrez was kept in police custody for some days and after that he was taken to the hospital where he died.[iv] Here, the question arises, why the police not took him to the hospital for his treatment.[v] This incident was highlighted by National media as mob lynching incident against Muslim community in Jharkhand and was linked to earlier mob violence cases of Gau rakshaks in the state.[vi]
iii. Palghar Mob Lynching incident, 2020
On the basis of complaint, National Human Rights Commission issued a notice to DGP of Maharashtra regarding mob lynching incident that occurred in Palghar District where 3 persons were attacked by mob on suspicion that these 3 people were thieves. This incident was witnessed by police.[vii]
The Human Rights Watch noted,
“Instead of taking prompt legal action against the vigilantes, many linked to extremist Hindu groups affiliated with the ruling BJP, the police, too often, have filed complaints against the assault victims, their relatives and associates under laws banning cow slaughter.”[viii]
According to a report by IndiaSpend, 86% of the people lynched for cow slaughter are Muslims.[ix]
Mob violence is caused even on grounds of suspicion of rape and kidnapping a child like in Dimapur lynching 2015 and Akku Yadav Lynching incident of 2006.
The apex court of India held “mob lynching/ violence as disrespectful to the rule of law and Constitutional values. We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day. Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order.”[x]
Cow slaughtering is another main cause for mob violence/ lynching and it is also linked with religion. Entry 15 of the State List in Schedule 7 of the Indian Constitution provides exclusive power to make law for preservation, protection and improvement of stock and to prevent animal diseases.[xi]
Article 48 of the Constitution of India- “The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch and draught cattle.”[xii]
In Mohd. Hanif Qureshi case,[xiii] the constitutional validity of three legislations- The Bihar Preservation and improvement of Animals Act, 1955, The UP Prevention of Cow slaughter Act, 1955, The Central Provinces and Berar Animal Preservation Act, 1949, for imposing total ban on slaughtering of cows, bulls, bullocks and calf as it is violative of Article 14, 19(1)(g) and 25 of the Indian Constitution. The apex court held these legislations as reasonable and valid and observed that scarifying cow on Bakra-Id was not mandatory, so it does not violate any Fundamental Rights.
Desecration of religious Books
The very first case of desecration was reported in 2015 when 110 Angs of the holy Guru Granth Sahib was torn in Bargari, in Faridkot District of Punjab. The accused was attacked and killed by two of his jail inmates. In 2017, again seven birs were burnt partially in Mukhtsar district and in 2018 pages of ‘Gutka Sahib’ were torn in Tarn Taran. The Ranjit Singh Report shows Badal family’s was involved in conspiracy and protected the accused.[xiv]
The IPC (Punjab Amendment) Act, 2018 inserted Section 295AA which provides- “whoever causes injury, damage or sacrilege to Shri Guru Granth Sahib, Srimad Bhagwad Gita, the Holy Quran and the Holy Bible with the intention to hurt the religious feelings of the people shall be punished with imprisonment for life.
Several incidents of false blasphemy has been reported in which innocent person have been lyched such as Mashal Khan who was lynched by his classmate.
ATROCITIES BY STATE
a) Extra Judicial killings
The killing of people by government authorities without any authority to act in that manner amounts to extra-judicial killings. The Supreme Court observed, “Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know the gallows await them.”[xv]
Ancient thinkers were of the opinion that the worst state of affairs in a society is state of lawlessness. When the rule of law collapses it gets replaced by Matsyanyaya, which means the law of the jungle. [where big fish devours the smaller one.] It means not even the evil doers are safe because they will also be swallowed by other evil doers.[xvi]
Hyderabad encounter of 4 rape accused has created havoc amongst the public. Article 21 of the Indian Constitution provides for Right to life as, “No person shall be deprived of his life or personal liberty except according to procedures established by law.”
Therefore it clearly states that life can only be taken in accordance with reasonable, fair and just procedure of law and not otherwise. In Prakash Kadam & Etc. v. Ramprasad Vishwananath Gupta & Anr,[xvii] the apex court stated that death penalty shall be awarded to the police officers who are guilty of killing individuals in the sake of encounters.
The Manual on Human Rights for Police Officers which is issued by National Human Rights Commission (NHRC) provides,
“The law says that no one including the police has an unqualified right to take the life of another person. Causing death of a person by a police officer may amount to murder or culpable homicide not amounting to murder, unless it is established that the causing of death is for justifiable reasons. If a police officer kills someone in an encounter then that officer must prove that the death was caused either in the legitimate exercise of the right of private defence or in the use of force, proportional to the resistance offered, while arresting a person accused of an offence punishable with death or life imprisonment. This can only be ascertained by a proper investigation and not otherwise.”[xviii]
When killing a person does not amount to any offence
There are only two situations when killing an individual would not amount to an offence as provided under:
i. If death is caused in the exercise of the right to private defence, and
ii. Under Section 46 of the CrPC, 1973 which authorizes the police to use force, extending upto the causing of death, as may be necessary to arrest the person accused of an offence punishable with death or imprisonment for life.[xix]
PUCL v. State of Maharashtra,[xx] the Supreme Court laid down 16 guidelines which must be followed while investigating the police encounters. In Extra Judicial Execution victim Families Association v. Union of India,[xxi] a petition under Article 32 of the Constitution was filed challenging fake encounters by the State police in Manipur.[xxii] The court directed NHRC to conduct inquiry into allegations of fake encounters by AFSPA in Manipur. NHRC issued various guidelines which must be followed by the States in case of fake encounters.
Custodial violence means the threatening of persons who are in the custody of police. Its also called custodial torture. Police torture is common parlance in India to extract confession from prisoners.[xxiii] This inhuman practice has just remained debatable since 100s of years. The convention against Torture and other Cruel, human or degrading treatment or punishment” has defined the term ‘torture’ as – “any act by which severs pain or suffering, whether physical or a third person for such purposes as obtaining from him or a third person information or a confession, punishing him for is suspected of having committed or intimidating or coercing him or third person, or for any reason based on discrimination of any kind.[xxiv]
Just to protect the prisoners, the law commission in its 113th report recommended amendments be made in the Indian Evidence Act, 1872 so that if any person gets any injuries while in the custody of police, the court may presume that it was caused by police officer proves the contrary.[xxv]
If any person dies in police custody then the Magistrate may hold an inquiry into cause of death (Section 176 of the CrPC, 1973).[xxvi]
AFSPA – Armed forces (special powers) Act, 1958 is another criterion of violation of right of individuals North-Eastern states. It provides power to the personnel to arrest persons without warrant even on basis of reasonable suspicion. This is procedure established by law but does not fall under the ambit of due process of law as this law is not just and fair. Human Right activists have argued that this Act is against the constitutional spirit.
Courts held that despite the constitutional safeguards providing protection to life & liberty, the menace of torture & deaths in police custody violate such human rights so, SC issued various safeguarding guidelines to prevent such degrading treatment.[xxvii]
b) Misuse of Sedition law
The constitutional validity of Section 124A of IPC has been challenged calling it as ‘the impugned provision’. The petitioner prayed for issuance of writ of Mandamus or any other writ, order or directions to declare Section 124A of the IPC as void and in contravention of Article 19(1)(a) read with Article 14 and 21 of the Constitution of India.[xxviii]
This provision was inserted in IPC in 1870 by amendment and the purpose of this amendment was to subdue the Anti-British agenda of India Press.[xxix] This is a colonial law enacted to suppress the freedom movement. Its 75 years since India got independence but the impugned provision still prevails. A report by the National Crime Records Bureau- “Crime in India, statistics, Vol.1 NCRB 2019” shows that the number of cases related to offence of Sedition filed between 2016 and 2019 has increased by 160% but the rate of conviction in 2019 is only 3.3% whereas in 2016 it was 33.3%.
The Supreme Court has expressed alarm at the rampant misuse of Section 124A of IPC and CJI said, “the gravity of situation is so grim that if some State or particular party doesnot want to hear a voice, they will use this law to implicate such groups of people.[xxx]
The CJI further added, “If we go see history of charging of this section, the enormous power of the section can be compared to a carpenter being given a saw to make an item, uses it to cut the entire forest instead of a tree. That’s the effect of this provision.”[xxxi]
c) Detention of persons even when bail is granted- Delhi riots case[xxxii]
Three student activists-Devangna Kalita, Natasha Narwal and Asif Iqbal Tanha faced allegations for ‘larger conspiracy’ for organizing protests against the Citizenship Amendment Act and were booked by the Delhi Crime Branch for communal riots and conspiracy under IPC and UAPA [Unlawful Activities (Prevention) Act]. Bail was granted to all the three by High Court after observing that no prima facie case was made out against them under UAPA. But trial court did not order their release despite bail being granted to them as a result of which parties approached the Delhi High Court, which observed that Section 43D(5) of the UAPA was not attracted and thus they were entitled to bail as per general CrPC provisions relating to bail.[xxxiii]
Former J. Madan B. Lokur has expressed, “In some ways the scales of processual justice are heavily loaded in favour of the state and the victims are ordinary people like you and me- not the privileged few. This is the reason why people remain in jail in inhuman conditions for several years as undertrial prisoners. We seriously need to think about these gaps in our constitutional and human rights. We also need to think about the dignity of the citizen. We have miles to go before we sleep. And miles to go before we sleep.”[xxxiv]
Humanitarian approach towards the accused is not followed by courts and have turned Nelson’s eye to the allegations which are based on suspicion rather than facts. In Safoora Zargar’s case, the pregnant lady was denied bail by Session’s court on the ground that there is prima facie evidence of conspiracy to atleast blockade the road by her inflammatory speech resulting into violence and rioting in Delhi. The 23 week pregnant woman in this case, then approached the High Court, which granted her bail on humanitarian grounds.
Father Stan Swamy case
Father Stan Swami who was charged under Section 115, 120B, 121, 121A, 124A, 153A, 505 of IPC read with Section 34 of IPC and Section 13, 16, 17, 18, 18A,18B, 20, 38 of UAPA was denied bail by the NIA court. After which he moved a bail application before Bombay High Court but unfortunately lost his life due to deteriorated health conditions during the pendency of that bail application.
[i] Tehseen S. Poonawala v. Union of India, (2018) 9 SCC 501. [ii] (2011) 6 SCC 344. [iii] https://m.economictimes.com/news/politic-and-nation/dadri-lynching-police-havent-recorded-our-statement-says-akhlaqs-brother [iv] https://thewire.in/communalism/tabrez-ansari-jharkhand-lynching-district-report [v] https://www.rediff.com/news/column/why-was-tabrez-ansari-allowed-to-die/20190708.htm [vi] Mithilesh Kumar Choubey, Mob Lynching: A Case Study Jharkhand, J.R.R, 16, 18 (2019). [vii] Bhaswat Prakash, Mob Lynching: A Criminal Injustice towards Humanity? SSRN, 1, 4. [viii] https://www.hrw.org/news/2017/04/27/india-cow-protection-spurs-vigilante-violence. [ix] https://thewire.in/communalism/cow-vigilantism-violence-2017-muslims-hate-crime [x] Nandani Sundar & Orthers v. State of Chhattisgarh, AIR 2011 SC 2839. [xi] INDIA CONST. sch. 7 entry 15. [xii] INDIA CONST. art. 48. [xiii] Mohd. Hanif Queshi and Ors. v. State of Bihar, AIR 1958 SC. [xiv] https://www.opindia.co,/09/06/as-the-accused-in-bargari-sacrilege-case-gets-killed-in-jail-here-is-all-you-need-to-know-about-the-2015-guru-granth-sahib-desecration. [xv] Prakash kadam& Etc. v. Ramprasad Viswanath Gupta & Anr, 2011 SC Para 26. [xvi] Id., Para 28. [xvii] Id. [xviii] https://nhrc.nic.in. [xix] The Criminal Procedure Code. 1973, No. 2, Act of Parliament, 1973. [xx] Crl. A. 1255 of 1999 SC [xxi] W.P. (Crl.) 129 of 2012 SC. [xxii] https://hrln.org/litigation/extra-judicial-killings-in-manipur-supreme-court-of-india-wp-crl-129-of-2012 [xxiii] Dr. J.N Pandey, THE CONSTITUTIONAL LAW OF INDIA 303- 305 (50ed. 2013). [xxiv] Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, 1984, Article 1. [xxv] Rabia Mamta and ors. V. NCT of Delhi and ors. AIR 2015 Del. HC. [xxvi] R.V. KELKAR, CRIMINAL PROCEDURE 201 (6th ed. 2014). [xxvii] D.K. Basu Vs state of West Bengal AIR 1997 SC. [xxviii] S.G. Vombatkere v. Union of India, W.P of 2021, SC, 2. [xxix] PSA PILLAI, CRIMINAL LAW 478 (10 ed. 2009). [xxx] Id. [xxxi] Id. [xxxii] Natasha Narwal v. State of Delhi NCT Crl. A. 82/2021 Del. [xxxiii] https://thewire.in/rights/pinjra-tods-devangana-kalita-natasha-narwal-denied-bail-again-in-delhi-riots-case [xxxiv] https://thewire.in/rights/student-activists-natasha-narwal-devangana-kalita-uapa-delhi-police-high-court