The Union Home Ministry is strategically dilly dallyingits way out of allowing anti-lynching bills to be enacted inboth Rajasthan and West Bengal.
Despite the Supreme Court’s directions on how states and the Centre should tackle the menace of mob lynching incidents that have spiraled over the past five plus years, little has been done by way of statutory enactment to prevent and prosecute these crimes. While three states—Manipur, Rajasthan and West Bengal—have passed anti-lynching bills, the enactment of the latter twohas been held up by the Union Home Ministry claiming that their contents need to be further examined. The Centre has been dragging its feet in following the Supreme Court’s guidelines since August 2018.
Here, we have a look at whatanti-lynching mechanisms states have incorporated in pursuance of the apex Court’s guidelines, and how the Centre has been effectively nullifying their progress.
States taking action
Since the issuance of these guidelines, the Government of Karnataka issued a circular establishing the nodal officers and assistants to the nodal officers. Maharashtra also issued guidelines against mob lynching and related violence.
In January 2019, Manipur was the first to pass legislation against these incidents that the Supreme Court referred to as “horrendous acts of mobocracy.” While closely following the SC’s directions, it additionally specifies the element of hate crime within its definition of lynching. It necessitates that the state’s police officials shoulder serious accountability by criminalising the failure to prevent lynching without reasonable cause, under the offence of “dereliction of duty.”
Although the Legislative Assemblies of West Bengal, and Rajasthan passed anti-mob violence bills as well, their enactment was reserved by their respective Governors for the President’s consideration. This is why, as under Article 200 of the Constitution, these bills are now on the table of the President of India, waiting for his assent.
The Rajasthan Protection from Lynching Bill, 2019 was passed in August 2019 by the State’s Vidhan Sabha by a voice vote amid vociferous protest by the Opposition BJP, which wanted the Bill to be referred to a select committee.
The West Bengal (Prevention of Lynching) Bill, 2019 was passed by the state in September. While introducing the Bill in the House, Mamata claimed its provisions would be “sterner than the Indian Penal Code.”It lays down rules for police officers to monitor and prevent situations that could lead to lynching.
The Centre adds hurdles
On July 22, 2018, in response to the SC’s directions, the Centre set up a high-level committee headed by Union Home Secretary Rajiv Gauba to examine the lynching issue and make recommendations to a Group of Ministers (GoM) who would then consider this panel’s suggestions and, in turn, submit its recommendation to the Prime Minister.
Despite the Gauba Committee submitting their report on August 29, 2018, the GoM has not taken any steps to further anti-lynching measures to date. The GoM under the helm of Rajnath Singh had only met twice and had not come to any conclusion in the year before being reconstituted in July 2019, after the Home Ministry portfolio was handed to Amit Shah in the second term of the Modi government.
On August 26, 2019, The Hindu reported a senior government official indicating that a new law was unlikely as the existing laws were enough to combat crimes like lynching, and all it required was “enforcement”. When asked whether the Centre was considering any amendment to the Indian Penal Code to prevent lynchings, the official said, “There are enough laws to deal with lynchings; it is a matter of enforcement. The police need to be trained to ensure conviction in these cases.”
On September 11, 2019, The Hindu reported that the Union Home Ministry will have to clear the anti-lynching Bills passed by the Rajasthan and West Bengal Assemblies before they become law.Under norms of the Union Home Ministry, the State laws are examined from three angles — repugnancy with Central laws, deviation from national or central policy and legal and constitutional validity.Based on the comments by the Ministry, the President rejects or gives assent to a Bill.
The Hindu quoted an official saying that since such consultations required interactions with various Ministries or departments, no time frame could be fixed when the Bills would be cleared. At the date of publishing, no action has been taken by the Ministry with respect to these Acts.
The executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
The necessity of Union action
What will bringing in a special law against mob violence change? A law, as senior advocate Indira Jaising quoted Martin Luther King Jr while arguing for it in the Supreme Court (SC), may not be able to make a man love someone, but it can keep the man from lynching him.
Although neither the National Crime Records Bureau nor any other government agency has provided information as to deaths caused by mob lynchings, there have at least been 266 reported incidents of mob violence from the beginning of the Modi regime upto June 25, 2019. Such vigilantism has the effect of undermining the institutions of the State and altering the constitutional order.
The apex court’s guidelines, as well as the State acts that have followed, seek to reduce the incidence of mob violence in a specialised, nuanced manner. The suggested prescriptions include the creation of a task force in every district, establishment of district-level Fast Track Courts earmarked for cases of lynching, and formation of special lynching/mob violence victim compensation scheme under Section 357A of CrPC within one month from the date of this judgment. The severity and urgency of the issue of mob lynching necessitates that such a special system be created which aims at tackling the menace holistically.
In Tehseen Poonawalla, the SC recommendedthat the Parliament create a separate offence for lynching, stating that a special law in this field would instill a sense of fear for law amongst the people who involve themselves in such kinds of activities.
The SC noted that the State has a sacrosanct duty to protect its citizens from unruly elements such as the perpetrators of orchestrated lynching and vigilantism, and that the State’s commitment to address and curb such incidents must be reflected in its actions and schemes.
As Justice Misra observed, good governance and nation building requires the “sustenance of law and order which is intricately linked to the preservation of the marrows of our social structure.”
TheSC 2018 Guidelines
On July 17, 2018, the Supreme Court (SC) in the PIL petitionTehseen Poonawalla v. Union of Indiaissued guidelines to state governments on tacklingthe increased incidents of mob lynching in the country.In this case, the apex Court had directed state governments to follow a three-pronged approachto lynching incidents by executing preventive, remedial and punitive measures.Several others including Dalit leader, Martin Macwan were petitioners in the case.
As preventive measures, the Court recommended that, in each district,State Governments designate a senior policeofficeras Nodal Officer and DSP rank officers as assistants to the Nodal Officer. Together, these officers would constitute a special task force that procures 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 would hold at least monthly meetings with relevant authorities to take steps so as to prevent instances of dissemination of offensive material that incite such offencesthrough social media, etc.
As remedial measures, 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 lodge an FIR. The Station House Officer of the police station would intimate the Nodal Officer in the district who, in turn, would personally monitor the investigation and ensure that there is no further harassment of the family members of the victim(s).
Specifically, the Court had, in 2018, directed that
- The state governments shall designate a senior police officer in each district for taking measures to prevent incidents of mob violence and lynching.
- The state governments shall immediately identify districts, sub-divisions and villages where instances of lynching and mob violence have been reported in the recent past.
- 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.
- It shall be the duty of every police officer to cause a mob to disperse, which, in his opinion, has a tendency to cause violence in the disguise of vigilantism or otherwise
- Central and the state governments should broadcast on radio and television and other media platforms including the official websites that lynching and mob violence shall invite serious consequence.
- Curb and stop dissemination of irresponsible and explosive messages, videos and other materials on various social media platforms. Register FIR under relevant provisions of law against persons who disseminate such messages.
- Ensure that there is no further harassment of the family members of the victims.
- State governments shall prepare a lynching/mob violence victim compensation scheme.
- Cases of lynching and mob violence shall be specifically tried by designated court/fast track courts earmarked for that purpose in each district. The trial shall preferably be concluded within six months.
- To set a stern example in cases of mob violence and lynching, the trial court must ordinarily award maximum sentence upon conviction of the accused person.
- If it is found that a police officer or an officer of the district administration has failed to fulfil his duty, it will be considered as an act of deliberate negligence.
As analysed by cjp.org.in, the judgment further reiterates an accused’s right to a lawful trial saying, “No act of a citizen is to be adjudged by any kind of community under the guise of protectors of law. It is the seminal requirement of law that an accused is booked under law and is dealt with in accordance with the procedure without any obstruction so that substantive justice is done.” The judgmentfurther says explicitly,
“No individual in his own capacity or as a part of a group, which within no time assumes the character of a mob, can take law into his/their hands and deal with a person treating him as guilty. That is not only contrary to the paradigm of established legal principles in our legal system but also inconceivable in a civilized society that respects the fundamental tenets of the rule of law.”
Under the Court’s recommended punitive measures, if a police officer or an officer of thedistrict administration has failed to comply with the aforesaid, it would be considered an act of deliberate negligence and/or misconduct and appropriate action would be taken against them.
These recommendations of the Apex Court are centered around creating a system of accountability among the on-groundlaw enforcement.As advocate for the petitioner Sanjay Hegde asserted before The Outlook, “The objective of the anti-lynching law is to ensure accountability in the police force for allowing deterioration of law and order to the extent that a mob can lynch a human being. No lynch mob can succeed without a complicit, or a partially complicit constabulary.”
On July 30, 2019, a year later, the SC had issued notices asking the central government, the National Human Rights Commission (NHRC) and state governments to respond to queries on implementation of their 2018 order,
Directions to the Government
The Supreme Court further issued directions that would extend accountability to the Central and the State governments. The Court stated that both governments should take steps to curb the spread of irresponsible and explosive messages, videos and other material which can incite mob violence, and also broadcast the message that lynching and mob violence of any kind shall invite serious consequence under the law.
A lot of responsibility was to be shouldered by the Centre under the guidelines.The Central Government was required to issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.Additionally, the Union Home Ministrywas directed to work in co-ordination with the state governments towardssensitization of the law enforcement agencies and involvement of all the stakeholders in identifying preventive measures against mob violence.
The Nagrik Adhikar Manch has started a Change.org petition to implore the President of India to clear these Bills and also to direct the Government of India to implement the directions/guidelines issued by the Supreme Court of India. The petition can be signed here.
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