“Vigilantism is not permissible, needs to be checked“, a Supreme Court bench orally observed while asking the States to share data regarding mob lynching cases.
On July 11, a divisive bench comprising of Justice Sanjeev Khanna and Bela Trivedi was hearing the 2018 Tehseen Poonawalla case, in which the Supreme Court had dealt with the issue of rampant mob lynching happening in the country, and had issued several directions to the Union and States regarding measures to prevent the same from happening. The said matter had been posted again in front of the Supreme Court bench to monitor the follow-up action taken by the governments.
Accepting the Attorney General of India’s suggestion, R Venkataramani, the bench instructed the Ministry of Home Affairs to convene a meeting of state department heads and gather and consolidate data for compliance with the preventive and corrective measures implemented in accordance with the Court’s 2018 landmark ruling.
The court further ordered the states to provide the home ministry with a status report. Also sought were the year wise statistics on the number of complaints and FIRs filed by state governments.
Tehseen Poonawalla case and the continuing spectre of Mob Violence
In the July 2018 judgment in the case of Tehseen S. Poonawalla v Union of India, the Supreme Court had condemned the ‘sweeping phenomenon’ of mob lynching’s and mob violence in India. The a 3-judge bench comprising of Justice Deepak Mishra, A.M. Khanwalikar and DY Chandrachud had, in the context of growing vigilantism, mob lynching, communal violence and hate crimes, held it to be the State’s responsibility to ensure that no individual or group takes law into their own hands.
“The States have the onerous duty to see that no individual or any core group take law into their own hands. Every citizen has the right to intimate the police about the infraction of law. The process of adjudication takes place within hallowed precincts of justice and not on streets. No one has the right to become the guardian of law claiming that he has to protect the law by any means.” (Para 15)
The court had observed lynching to be against the values enshrined in the Indian Constitution.
“Lynching is an affront to the rule of law and to the exalted values of the Constitution itself. 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” (Para 18)
In order to address the rising number of lynching occurrences in India, the Supreme Court bench then recommended various “preventive,” “remedial,” and “punitive” measures to be adopted by the Central and state governments as well as law enforcement agencies. Many of these actions had time constraints, and the court showed a sense of urgency in demanding that the governments follow its instructions. The court ruled that “horrendous acts of mobocracy cannot be allowed to overwhelm the rule of law” and that “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 court had also stated that narrow domestic issues cannot sever a nation’s identity and its essence.
“Mob vigilantism and mob violence have to be prevented by the governments by taking strict action and by the vigil society who ought to report such incidents to the state machinery and the police instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed through spate of incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country.” (Para 19)
The court had issued several directions to the Central and state governments to curb such violence and was monitoring their compliance with its order, which are as follows-
Preventive Measures:
- The State Governments shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district to prevent incidents of mob violence and lynching
- The State Governments shall forthwith identify areas where instances of lynching and mob violence have been reported.
- It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC
- The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incident
- The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible
Remedial measures:
- The jurisdictional police station shall immediately cause to lodge an FIR
- Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively
- The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of CrPC
- The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district
Deterrent punishment
- The trial court must ordinarily award the maximum sentence under the provisions of the IPC
- The courts may, on application by a witness or by the public prosecutor, take such measures as it deems fit, for protection and for concealing the identity and address of the witness
- The victim(s) or the next of kin of the deceased shall be given timely notice of court proceedings
- The victim(s) or the next of kin of the deceased shall receive free legal aid if he or she so chooses
Punitive measures
- Departmental action must be taken against police or district officials who fail to act against the perpetrators. Such failure will be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken. The action shall be taken to its logical conclusion preferably within six months.
The judgment can be read here:
Cold storage, lack of implementation, continued deaths
When the aforementioned judgment, specifying the measures and directions, was passed by the court, certain of them, including in relation to the filing of compliance reports by states, were time-bound, and had to be carried out within a week. The case was to be listed after two weeks for the next hearing, but as is the norm in many cases, quickly went into cold storage. While the judgment was positive, each and every attempts at moving the Supreme Court to take stock of the implementation of its guidelines haven’t met with much success.
Even after this judgment, many cases of mob lynching have been reported, such as Tabrez Ansari lynching case, Idrees Pasha lynching case, Pehlu Khan lynching case, Rakhbar Khan lynching case. In all of these case, justice was delayed by years, there were lapses in prevention of crime and in investigation, and even the accused were not put behind bars timely. And yet, even as the cases of mob violence and mob lynching had gone on unchecked, the Supreme Court full attention could not be drawn towards the failures of the states in dealing with such cases. In most of the mob lynching cases reported since the judgment, and all the four mentioned above, there was a lack of speedy trials through fast-track courts, failure to provide compensation to the victims or their families, failure to prevent mob violence from continuing in the state, lack of accountability of public officials on dereliction of duty, among others.
It is important to bear in mind that in July 2019, a three-judge Supreme Court bench comprised of the then Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Aniruddha Bose had rejected a request for an urgent hearing of a contempt petition against states that had disregarded the Tehseen S. Poonawalla guidelines. Notably, the said plea was filed in light of the rising number of mob lynching incidents that had taken place in the country in spite of the court’s rules that an immediate hearing has been requested. The bench allegedly noted that there was no urgency and that the case will be heard in the regular run of events, noting that 50% of the claims made by lawyers who requested urgent hearings were determined to be false.
Since then, follow up hearings have been held by the Supreme Court, few and far between, but nothing concrete have come out of it. Recently, in the month of April 2023, a Bench comprising of Justice KM Joseph, now retired, and Justice BV Nagarathna had issued notice in a PIL seeking implementation of directions issued in Tehseen Poonawalla case, particularly the one regarding compensation scheme to be framed by State Governments and Union Territories for victims of lynching/mob violence under Section 357A of the Code of Criminal Procedure, 1973 (CrPC). The bench had directed the State Governments, the Union Territories and the Union Government to file their counter affidavit with respect to the implementation of the directions issued in Poonawalla and the manner in which the implementation has been done.
The order can be read here:
Mob lynching- a case of indifference?
The Supreme Court Bench’s order today makes it clear that the judiciary is still delegating responsibility to the state government for putting the directives into effect, and is stagnant at this primal stage of waiting. Time and again, petitions are being filed before the Court demonstrating that the states and enforcement agencies have yet to apply any preventive, punitive, or rehabilitative measures, and yet, the court is only issuing instructions. It is regrettable that the judiciary has stopped probing into the reason of “why” these lynching’s continue to occur, leading to this brazen impunity being permitted to flourish in an institutional vacuum. As a result of the frequent occurrence of this violence, which primarily targets the country’s minorities, and the government’s refusal to take appropriate action, its victims and their communities are now defenceless. The judiciary should immediately inquire as to why there hasn’t been a deliberate attempt to gather and release official statistics on lynching in the previous five years. Furthermore, when the states submit their data, it is vital for the courts to analyse the trends and come up with a workable solution to address this threat.
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