Lynching can be seen as a premeditated killing by a group for an alleged offence without any legal trial. Lynching is a form of violence in which a mob under the pretext of administering justice executes a presumed offender by inflicting torture. The term lynching is derived from the name of Charles Lynch (1736-96) who during American Revolution headed an irregular court to punish the people.
In India lynching has been adopted as a means of expression of internal tension between the numerous ethnic communities in the country. The incidence of lynching has been on increase under the pretext of cow protection. Some notable examples of such attacks includes 2015 Dadri mob lynching, 2016 Jharkhand Mob lynching, 2017 and 2018 Alwar mob lynching and last month incidences of Junaid and Pehlu Khan lynching on train in Faridabad, Muslim youth thrashed and forced to shave beard in Gurugram, Hapur lynching of meat trader are some of the incidence of lynching which are against the concept of unity in diversity enshrined in our Indian Constitution.
On July 3, 2018 a bench of Chief Justice Dipak Misra and Justice A.M Khanwilkar and Justice D.Y Chandrachud reserved its judgment on strings of writ petitions filed from almost every corner of the country and by the congress leader Tehseen Poonawalla and the great grandson of Mahatma Gandhi Tushar Gandhi against the rising incidences of cow vigilantism. The Judgment was pronounced on 17th July 2018 in Tehsen S. Poonawalla v Union of India which has prescribed the preventive, punitive and remedial measures to prevent the incidence of lynching.
Some of the important preventive measures are :
- The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.
- The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.
- The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.
- The Home Department of the Government of India must take initiative and work in co-ordination with the State Governments for sensitizing the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.
- The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious consequence under the law.
Below are few important remedial measures :
- Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of Indian Penal Code (IPC) and/or other provisions of law.
- It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).
- The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of Criminal Procedure Code (CrPC). In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.
- The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial.
- To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC.
- The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.
The court devised the below stated punitive measure for erring officials :
- Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.
- The State Government are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
The observation of Supreme Court in the Judgment of Tehsen S. Poonawalla v Union of India (2018) can be seen as warning bell for the society in order to act swiftly and curb the incidences of lynching.
The Supreme Court rightly observed that “Lynching is an affront to the rule of law and to the exalted values of the Constitution itself. 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. These extrajudicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic. The tumultuous dark clouds of vigilantism have the effect of shrouding the glorious ways of democracy and justice leading to tragic breakdown of the law and transgressing all forms of civility and humanity. Unless these incidents are controlled, the day is not far when such monstrosity in the name of self-professed morality is likely to assume the shape of a huge cataclysm.”