The Asian Age - - 3600 - Tehseen Poon­awalla

It has of­ten been elo­quently pointed out that the re­cent spate of mob lynch­ing in­di­cates the state's in­dif­fer­ence and de­nial of re­al­ity, that it is the de­lib­er­ate per­se­cu­tion of vul­ner­a­ble cit­i­zens based on hate. Lynch­ing is a crude way of telling a sec­tion of the pop­u­la­tion that the law can­not pro­tect them.

Most of the lynch­ing in­ci­dents were ei­ther trig­gered by po­lit­i­cally mo­ti­vated in­di­vid­u­als con­fi­dent that the jus­tice de­liv­ery sys­tem would ac­tu­ally pro­tect them. If one is un­der the im­pres­sion that most of the lynch­ings are about the mi­nor­ity, then hold back. Data re­veals that women are of­ten lynched by terming them as ‘ dayans’ or witches and trans­gen­der peo­ple are lynched on the pre­text of moral polic­ing whereas mi­grant work­ers have to bear the brunt of mob vi­o­lence di­rected to­wards them. What­ever the rea­son be­hind these acts, lynch­ing per se is in­hu­man. It paints a grim pic­ture of non- reliance and a com­plete lack of fear to­wards the law and law- en­force­ment agen­cies.

There are le­gal con­se­quences for acts such as in­cul­cat­ing an­i­mos­ity among peo­ple be­long­ing to dif­fer­ent com­mu­ni­ties, mo­lest­ing and ha­rass­ing women, killing and beat­ing, etc. How­ever, there is no spe­cific law pe­nal­is­ing mob lynch­ing as an of­fence.

Legally speak­ing, Sec­tion 323 of the IPC deals with pun­ish­ment for vol­un­tar­ily caus­ing hurt while sec­tion 324 deals with wil­fully caus­ing hurt by dan­ger­ous weapons. Sec­tion 326 en­tails caus­ing griev­ous hurt, and sec­tion 307 and sec­tion 302 deal with at­tempt to mur­der and pun­ish­ment for mur­der, re­spec­tively. But in mul­ti­ple in­stances of mob lynch­ing, fix­ing the onus on in­di­vid­u­als proves far trick­ier.

There have even been in­stances where an un­ruly mob has tried to im­pli­cate the po­lice, ac­cus­ing it of cus­to­dial deaths when a griev­ously in­jured vic­tim was handed over to the po­lice and died upon reach­ing the hospi­tal. There have also been cases where the po­lice has not acted swiftly to save the vic­tims. Al­most al­ways, vi­o­lence goes un­pun­ished due to a col­lec­tive ac­tion of a com­mu­nity. And of­ten, it is the per­pe­tra­tors who are sup­ported by so­ci­ety for ac­cord­ing jus­tice. All of this has the po­ten­tial to be elim­i­nated through law. Through a re­cent an­nounce­ment, the gov­ern­ment is now try­ing to bring about a law on mob lynch­ing as sug­gested by the Honourable Supreme Court in my pe­ti­tion.

The in­ept law en­force­ment or the lack of trust in the law of the land mo­ti­vates vig­i­lantes. The cur­rent sce­nario is so bad that the Supreme Court had to come out stat­ing: “The hor­ren­dous acts of moboc­racy can­not be per­mit­ted. Earnest ac­tion and con­crete steps have to be taken to pro­tect the cit­i­zens from the re­cur­rent pat­tern of vi­o­lence, which can­not be al­lowed to be­come “the new nor­mal”.”

The apex court strongly feels the need to put leg­is­la­tion in place by Par­lia­ment even though the leg­is­la­ture has dragged its feet de­spite me mak­ing sev­eral pre­sen­ta­tions on my pro­posed draft leg­is­la­tion ‘ Ma­SuKa’ or Manav Su­rak­sha Kanoon.

The draft­ing com­mit­tee headed by San­jay Hegde, a se­nior ad­vo­cate in the Supreme Court, worked on bring­ing up Ma­SuKa, which tries to fill in the la­cu­nae in the law. The pro­posed bill shall en­deav­our to cover the death of vic­tims due to lynch­ing, abet­ment, and as­sis­tance with fi­nan­cial aid to the mob thereto and other such acts as offences pun­ish­able un­der law, pun­ish­able with as grave a term as rig­or­ous life im­pris­on­ment with a fine of ` 5 lakh.

With re­spect to the in­ves­ti­ga­tion of cases, the draft bill pro­poses that no po­lice of­fi­cer be­low the rank of in­spec­tor of po­lice shall in­ves­ti­gate any of­fence committed un­der this Act. Fur­ther­more, when the in­ves­ti­gat­ing of­fi­cer does not file a chargesheet within a pe­riod of three months from the date of reg­is­tra­tion of the First In­for­ma­tion Re­port, such cases shall be re­viewed by a com­mit­tee headed by an of­fi­cer of the level of in­spec­tor gen­eral of po­lice, which is to be con­sti­tuted by the state gov­ern­ment.

The pro­posed bill also tries to en­tail the rights of the vic­tim and wit­ness to the in­ci­dent. It also en­deav­ours to pro­vide com­pen­sa­tion of sorts to vic­tims and, in case of their death, to their fam­ily. The pro­posed bill states that the state gov­ern­ment, through the of­fice of the chief sec­re­tary, shall pro­vide com­pen­sa­tion to vic­tims within 30 days of the in­ci­dent. While in case of death caused due to lynch­ing, the com­pen­sa­tion should be less than ` 25 lakh. The amount of com­pen­sa­tion shall be such as is de­ter­mined by the des­ig­nated judge.

The cur­rent mood of the na­tion re­quires an im­me­di­ate en­act­ment of Ma­SuKa.

A re­port pub­lished by In­di­aSpend re­veals that 97 per cent of all at­tacks cen­tred on bovine is­sues be­tween 2010 and 2017 were re­ported in the last three years. When a glar­ing 61 of a to­tal of 63 such cases were reg­is­tered af­ter the cre­ation of cow pro­tec­tion squads and beef trade re­stric­tions, it sig­nals that a new trend of mob vi­o­lence in In­dia has gained ground un­der the cur­rent dis­pen­sa­tion ( the ma­jor­ity of the cases has been re­ported in BJP-gov­erned states).

The Na­tional Crime Records Bureau ( NCRB), which tab­u­lates and analy­ses crime data from across the coun­try ev­ery year, is plan­ning to now col­lect de­tailed data on lynch­ings. If the Union home min­istry ap­proves this, the NCRB will col­lect coun­try­wide data on lynch­ing in­ci­dents an­nu­ally, and record causes and an­a­lyse rea­sons for the same.

It is im­por­tant to note that lynch­ing does not find men­tion in the In­dian Pe­nal Code and no par­tic­u­lar law ex­ists so far to deal specif­i­cally with lynch­ing. The ab­sence of a cod­i­fied law to deal with mob vi­o­lence or lynch­ing makes it dif­fi­cult to de­liver jus­tice. While Sec­tion 223( a) of the Code of Crim­i­nal Pro­ce­dure, 1973 says that per­sons or a mob in­volved in the same of­fence in the same act can be tried to­gether, this has not proved to have given enough le­gal teeth to the jus­tice de­liv­ery sys­tem.

Of the 60 at­tacks over the past eight years, 58 ( 96.7 per cent) oc­curred, af­ter the Modi gov­ern­ment came to power, with 2016 re­port­ing the most at­tacks: 25, forc­ing me to move the SC in 2016.

As if the data was not bad enough, the big­gest irony is that in 18 at­tacks ( 30 per cent), the po­lice reg­is­tered cases against the vic­tims and sur­vivors and in 5 per cent of the at­tacks, there was no re­port of at­tack­ers be­ing ar­rested.

The cur­rent na­tional sce­nario calls for an im­me­di­ate need for a spe­cial law against the men­ace. A spe­cial law or Ma­SuKa will def­i­nitely act as a de­ter­rent. Mob lynch­ing re­flects how so­ci­ety has given up on any sort of hu­man­ity. Be­fore en­act­ing the law, the Union and state gov­ern­ments need to start show­ing sol­i­dar­ity to­wards the vic­tims, and this hu­man­ity need not emerge just for the sake of the up­com­ing elec­tions but should be strong enough to ren­der jus­tice to all fam­i­lies who have been vic­tims to such heinous crimes be­cause in many in­ci­dents the po­lit­i­cal class has been con­sid­er­ate to­wards lumpen vig­i­lantes.

In the end, we must ask our­selves an im­por­tant ques­tion: Has our In­dia re­ally be­come so in­tol­er­ant that we look no dif­fer­ent from a Pak­istan or a Nige­ria or an Afghanistan?

It may be true that the law can­not make a man love me, But it can keep him from lynch­ing me, And I think, that's pretty im­por­tant.”

Tehseen Poon­awalla is a lead­ing po­lit­i­cal an­a­lyst and the pe­ti­tioner in Supreme Court against mob vi­o­lence

A lynch­ing is a crude way of telling a sec­tion of the pop­u­la­tion that the law can­not pro­tect them.


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