ANALYSIS Updated: Aug 14, 2018 18:43 IST
Mohsin Alam Bhat
Last month, the Supreme Court came down heavily on the State for its failure to address mob lynching and recommended the formulation of adequate laws to tackle the problem. The government has set up a committee, which is expected to submit a report to the Cabinet soon. It is vital that we identify the most effective framework for addressing these crimes. After all, mob lynching is already criminalised under the existing laws. The Indian Penal Code holds people liable for cooperating in the commission of a criminal act with a shared intention. These provisions cover all acts of mob violence, whatever their motivation or pretext be.
The current crisis of mob violence is not the absence of substantive provisions but their lack of implementation. Available evidence suggests that in almost all documented cases, the police have been found wanting. They consistently fail to lodge FIRs or charge sheets on time. In many cases, allegations of collusion have been made against them. Poor investigation and reluctance of public prosecutors to pursue cases have resulted in bails for alleged culprits. The victims, often socio-economically weak, are unable to pursue criminal cases. They are subjected to counter-cases and threats, and often pressured to compromise.
These factors have impaired the criminal justice response in individual cases. In order to create even an opportunity for effective implementation, the new law against mob violence must strengthen official accountability and facilitate victim empowerment.
These two imperatives should help us in identifying the proper conceptual framework for the proposed offence, including the definition of “lynching”. One available definition of the term is punishment meted out by institutions or groups of people outside the established legal procedures. Understood on these lines, the problem with mob lynching is that it compromises rule of law and the State’s monopoly over violence because it is a form of vigilantism. But approaching the issue exclusively through this State-centric lens is severely limited and marginalises the voices of the victims of violence.
From a victim-centric perspective, mob violence causes harm to the victims by injuring and humiliating them. Moreover, the current problem of mob violence is a crisis of hate violence against minorities, particularly Muslims and Dalits. Hate crimes against minorities create a pervasive environment of vulnerability where members of these communities feel that they can be subjected to violence anytime and anywhere. This is precisely why the Supreme Court noted that the targeting of specific communities leads to the destruction of the social fabric of the country, and compromises tolerance and freedom. Treating the problem of mob violence only as a problem of vigilantism misses this social dimension of the violence.
More perniciously, approaching the problem as that of vigilantism presumes that the victim may have, in fact, committed a crime. This places the victims in the dock by privileging the account of the perpetrators of violence. This is particularly objectionable because enough evidence now points to the fact that many, if not most, cases of hate violence involve criminal elements such as extortion and political opportunism. The vulnerability of victims is already pervasive because they are at a disadvantage when it comes to being able to contest counter-cases and withstand political pressure. Rather than alleviating this vulnerability, treating mob violence only as a problem of rule of law embeds it further.
A full appreciation of the context and consequences of violence should encourage us to think of mob lynching as a class of hate crimes. Aligning with the trans-nationally accepted definitions of hate crimes, mob lynching incidents here have been either wholly or partly motivated by the religious or caste identity of the victims. Mob violence in India is also a manifestation of the social and institutional exclusion of vulnerable minorities. All credible legislative efforts of addressing lynching around the world have been part of the civil rights response to counter racist violence. This includes the recent effort in the United States Congress that places the offence of “lynching” squarely within the national laws against hate crimes.
In its judgment, the Supreme Court focuses on the victims by providing guidelines on victim compensation and witness protection. The legislative response should follow suit, not by obscuring the social vulnerability of the victims but addressing it unequivocally.
Mohsin Alam Bhat is assistant professor of law and executive-director, Centre for Public Interest Law, Jindal Global Law School