Above: The flogging of four Dalit men for carrying cattle carcasses in Una, Gujarat, had triggered massive protests
The Supreme Court has laid out detailed measures to take on the menace of lynch mobs and asked Parliament to legislate a special law against lynchings. But will it stop the killing spree?
~By Puneet Nicholas Yadav
Rarely has the Supreme Court delivered as nuanced a verdict as it did on July 17 when it came down heavily against lynch mobs and passed no less than 24 measures to be adopted by state governments and police establishments to prevent mob violence and prosecute the guilty.
The Court also urged Parliament to legislate a special law—“create a separate offence for lynching and provide adequate punishment for the same”—that would “instill a sense of fear for law amongst the people who involve themselves in such kinds of activities”.
That the Supreme Court bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud must be applauded for this verdict can’t be emphasised enough. Yet, the brutal attack on social activist and former Haryana Cabinet Minister Swami Agnivesh hours after this landmark verdict by goons reportedly affiliated to BJP youth organisations also proved that the judgment would mean zilch if the political establishment and law enforcement agencies don’t show urgency in implementing it (see box).
The verdict came on a string of petitions filed by the likes of Tushar Gandhi, great-grandson of Mahatma Gandhi, and Congress worker Tehseen Poonawalla. They had sought a judicial framework and corresponding action by the centre and state governments for putting an end to the violence perpetrated by cow vigilantes and lynch mobs over the past three years (see box).
The verdict laid out a set of 12 preventive measures, nine remedial measures and three punitive measures, besides stressing the need for a legislative framework that makes lynching a separate penal offence. But as is the case with any verdict or even an Executive policy, such pronouncements are only as good as their implementation. And, herein lies the challenge.
It is perhaps this realisation that made senior advocate Indira Jaising—who appeared for Gandhi in the case—euphoric over her victory in the Court and at the same time cautiously optimistic. She called it a “historic judgment” and a “brilliant piece of work” and said she was “looking forward to the end of vigilantism of all kinds”, but was also mindful of the need for implementation of the verdict by the agencies/governments concerned. She pointed out that “the Supreme Court is still monitoring the case”.
The 12 preventive measures laid out by the chief justice are more or less a reiteration of the Court’s earlier directives for curbing vigilantism that were issued in September 2017 during the course of proceedings in the case.
Incidents of killings, mob-lynching and assaults by cow vigilantes have shamed India over the past three years. An Indiaspend.com analysis shows that Muslims were the targets of 51 percent of violent incidents concerning cattle from 2010-2017. Of the 28 people killed in 63 such incidents, 24 were Muslims. Almost 97 percent of these incidents happened in the last three years under the watch of the present NDA government. Over 50 per cent of these attacks took place in BJP-ruled Rajasthan, Gujarat, Jharkhand, MP and UP.
July 13, 2018: Mohammad Azam, a 32-year-old IT professional was lynched in Bidar, Karnataka, on suspicion of being a child-lifter. The police managed to save four other victims from the mob of over 2,000.
June 26, 2018: Five men from the nomadic Gosavi tribe were lynched in Dhule, Maharashtra, on suspicion of being child-lifters.
June 8, 2018: Two men on vacation were lynched in Karbi Anglong, Assam, on suspicion of being child-lifters.
May 23, 2018: In Bengaluru, a man from Rajasthan was tied to a vehicle, dragged on the road and beaten with sticks on suspicion of being a child-lifter. He succumbed to his injuries.
June 22, 2017: Hafiz Junaid, 15, his brother Hasim and two cousins were stabbed multiple times by a group of men on a Ballabhgarh-bound passenger train. The attackers suspected that they were carrying beef. Junaid died while being taken to a civil hospital.
June 2017: Usman Ansari was assaulted by a mob in Jharkhand when a dead cow was found outside his house. Another man—Alimuddin—was beaten to death on suspicion of carrying beef, also in Jharkhand.
April, 2017: A mob of gau-rakshaks beat up Pehlu Khan in Alwar district of Rajasthan while he was transporting cows for his dairy farm. He succumbed to his injuries.
August 2016: Two boys were stripped, tied to a tree and assaulted after being seen skinning a cow in Mangalagiri, Andhra Pradesh. In the same month, a Muslim couple was killed, two others injured and two girls raped in Haryana over suspicion of having consumed beef.
July 2016: A Dalit family was beaten up for skinning a cow in Gujarat’s Una district.
September 2015: Mohammad Akhlaq, 60, was lynched in Dadri, UP, over rumours that he was storing and eating beef at his home. This was one of the first incidents of mob-lynching by gau rakshaks.
The gist of these measures is: state governments shall designate a senior police officer not below the rank of superintendent of police as the nodal officer in each district for taking measures to prevent mob violence; identify vulnerable districts and sub-divisions; take steps to prohibit dissemination of offensive material through social media that can incite such violence, and so on.
These measures, when first suggested last year, had met with non-compliance by several states, forcing Gandhi and Jaising to move the Supreme Court demanding contempt proceedings against these governments. Those contempt pleas are still pending disposal. The need for Jaising to seek these strictures against non-complying states highlights how governments and law enforcement agencies are not always keen on implementing judicial pronouncements – particularly when such verdicts go against the agenda of the political dispensation in power.
The nine remedial measures laid out in the verdict arguably pose an even greater challenge. These measures include prompt filing of FIRs and investigation in cases of mob lynching, setting up fast-track courts in every district to dispose of pending and new cases of mob lynching, preferably “within six months from the date of taking cognisance” and drafting of a victim compensation scheme by state governments, among others.
The Court’s directive for fast-tracking mob lynching cases would no doubt ease the struggle for justice for victims of such violence. However, India’s track record in setting up such courts and then ensuring that they function raises more concerns than kudos for the system.
According to recommendations made by the 14th Finance Commission, a staggering Rs 4,144.11 crore was allocated to state governments to set up 1,800 fast-track courts between 2015 and 2020 to deal with different kinds of cases. With less than two years left for the deadline of March 2020, only 575 fast-track courts have so far been set up across the country. States with a high prevalence of crime such as Madhya Pradesh, Rajasthan, Gujarat, Haryana, Karnataka, Kerala and Punjab have not set up even a single such court despite receiving huge allocations for the purpose.
Establishing new fast-track courts to deal with mob lynching cases will also need more appointment of judges and court staff. At a time when the judiciary —especially at the trial court stage—is already burdened with huge pendency of cases and an equally skewed number of judges, it remains to be seen how the system will manage to spare judges for presiding over new courts.
Senior advocate Sanjay Hegde, who appeared for Poonawalla in the mob lynching case before the Supreme Court, conceded that existing provisions for fast-track courts have not yet been complied with. He told India Legal: “The measures for fast-tracking mob violence cases should be seen as the Court’s way of telling the political powers and concerned agencies that it will not tolerate a cover-up or lackadaisical approach in such cases. I feel that even if a few such courts are set up, the message that the top court has sought to give will percolate down to the violators.”
The most strident of the remedial measures suggested by the court is—“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”. This is meant to be a stern deterrent against mob violence. However, achieving this would rely largely on how the prosecution agencies build their case against the accused.
Union minister Jayant Sinha’s appalling move to garland eight men convicted in the Alimuddin Ansari lynching case and then justifying it by claiming that he was “honouring the law” generated much opprobrium recently. Sinha had claimed that the convicts were granted bail because the appellate court didn’t find enough evidence to conclude that these men were indeed responsible for Ansari’s death.
Agnivesh not spared either…
On July 17, hours after the Supreme Court pronounced its lynching verdict, social activist and former Haryana Cabinet Minister Swami Agnivesh was assaulted by hoodlums allegedly associated with BJP’s youth wing—the Bharatiya Janata Yuva Morcha (BJYM)—in Pakur, Jharkhand.
Videos of the assault clearly show a group of right-wing goons shouting slogans such as “Hindustan me rehna hai toh Vande Mataram kehna hoga”and pouncing on Swami Agnivesh shortly after he came out of a hotel. The attackers pinned the 78-year-old Arya Samaj scholar to the ground and began raining blows on him while shouting expletives and pro-India slogans.
The mob was reportedly upset over Swami Agnivesh’s refusal to chant Vande Mataram as per the whims of the Hindu right and his condemnation of the killings of Muslims and Dalits by cow vigilantes. Unlike victims of similar lynch mobs, Agnivesh survived the assault.
The image of a bruised and dishevelled septuagenarian—standing with the help of his supporters, his trademark saffron turban missing and clothes torn—was a gruesome reminder of how lynch mobs with tacit support from the political establishment are bent on turning India into what the Supreme Court had termed “mobocracy”.
The assault on Swami Agnivesh happened days after Union minister Jayant Sinha drew sharp criticism for garlanding eight men, including a local BJP leader and workers of the saffron party, convicted for lynching 55-year-old Alimuddin Ansari in Jharkhand’s Ramgarh. The men Sinha feted had been granted bail, a fact highlighted by the Hazaribagh MP as he obstinately rejected criticism coming his way for “honouring” these dishonourable men.
While Sinha condemned the attack on Swami Agnivesh, it was clear that the BJP was in no mood to follow suit. Jharkhand Minister CP Singh ludicrously claimed that Swami Agnivesh had planned the attack on himself “to gain publicity” while several local BJP leaders and the party’s IT cell brazenly justified the assault, arguing that the activist supported conversion of Hindus to Christianity, consumption of beef, received foreign funding and sympathised with Naxals.
When a mob attacks a person(s), how do you determine who struck the fatal blow? Can those cheering the attackers or those who spread rumours that resulted in the lynching be held equally guilty as the killers? Hegde believes that everyone responsible for the lynching—from the person who triggered the act to those who participated in the assault—should be held equally responsible. “Prosecuting agencies must invoke the most strident charges applicable against the accused; the police can’t water down the charge of murder against the assaulters to that of culpable homicide not amounting to murder. In case of the mob violence leading to death of a victim, it is obvious that provisions under Section 302 of the IPC must be invoked. While the maximum penalty under this section is death, the provision of such a sentence being given only in rarest of rare cases will naturally apply,” he said.
Welcoming the verdict, Gandhi said that the Supreme Court’s pronouncement “now recognises the mob as an entity that can be collectively sentenced for an act of violence”. He told India Legal: “This is an astute verdict as the Court has left nothing to chance. It has laid down extremely detailed strictures and these are now for the governments at the centre and in the states to follow. In more ways than one, the verdict is also an indictment of the political establishment of the day. Without naming the party in power, the Court has made it clear that such cases have witnessed a sharp increase in recent years, but cannot be allowed to become the new normal.”
The Court ended its verdict by urging Parliament to legislate lynching as a separate offence. This suggestion, however, has created some doubt even among those who have been vociferously demanding an end to mob lynching and for the State to own responsibility for such acts and curb them. Many believe that the problem is not the lack of legal provisions to deal with the menace of mob lynching, but implementation of existing laws that can efficiently curb such acts. There is also a feeling that the current spate of lynchings is being executed with the tacit support of the BJP-led government at the centre and in a majority of states and so a legislative framework drafted by the saffron party may actually end up defeating the purpose of the top court’s verdict.
Rebecca Mammen John, senior advocate, Delhi High Court, told India Legal: “Multiplicity of laws does not address the root problem which is lack of political will, effective policing and fair investigations which collectively end in bad prosecution. If these problems are not solved, any new law will fall prey to them, too.”
The attack on Swami Agnivesh, which was nothing short of lynching, shows that the Supreme Court’s verdict hasn’t been an immediate deterrent for blood-thirsty, politically patronised mobs. However, the verdict has now identified the mob as an entity and made it easier to prosecute it.
The ball is now firmly in the court of the Executive and law enforcement agencies who have to do their bit. This dark chapter isn’t over yet.