Above: Qasim Qureshi was lynched in Hapur, UP

A year after a landmark judgment to prevent mob lynching, the centre and states have found no moral obligation to implement the apex court’s guidelines

By Venkatasubramanian

“There cannot be an investigation, trial and punishment of any nature on the streets.  The process of adjudication takes place within the hallowed precincts of the courts of justice and not on the streets. No one has the right to become the guardian of law claiming that he has to protect the law by any means.”

—The Supreme Court in Tehseen S. Poonawalla vs Union of India and others, July 17, 2018

One year after its landmark judgment to prevent mob lynching, the Supreme Court had to ask itself whether its observations in that ruling were just meant to be sanctimonious. On July 26, 2019, the bench comprising the Chief Justice of India, Ranjan Gogoi, and Justice Deepak Gupta sought responses from the centre and 10 states on a petition alleging that they had not implemented the slew of directions issued by the Court in that judgment. The petition filed by the Anti-Corruption Council of India Trust named the centre, Uttar Pradesh, Jammu and Kashmir, Jharkhand, Andhra Pradesh, Gujarat, Rajasthan, Bihar, Assam, Madhya Pradesh and Delhi as respondents.

Expressing its abhorrence over the rising incidents of lynching across the country, the 2018 Supreme Court bench comprising the then Chief Justice of India, Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud issued several guidelines as preventive measures. Some key guidelines are:

(i) Designation by the state governments of a senior police officer, not below the rank of superintendent of police, as nodal officer (NO) in each district to function as the head of a special task force 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.

(ii) Identification of districts/sub-divisions and/or villages, where instances of lynching and mob violence have been reported in the recent past.

(iii) The NO, through regular meetings, has to identify the existence of 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 NO has the responsibility to make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.

(iv) Every police officer has the duty to cause a mob to disperse, if it has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism.

(v) Central and state governments should broadcast on radio and television and other media platforms, including official websites of the home department and police of states that lynching and mob violence of any kind shall invite serious consequence under the law.

(vi) It is the duty of the central and state governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.

As remedial measures, the Court directed the jurisdictional police station to immediately lodge an FIR, without any undue delay, under the relevant provisions of the IPC and/or other provisions of law, whenever an incident of lynching or mob violence has been reported. The NO, in such cases, has to ensure that there is no further harassment of the family members of the victims. The NO is also dutybound to ensure that the investigation is carried out effectively, and a charge sheet is filed within the statutory period from the date of registration of the FIR or arrest of the accused.

More importantly, state governments were directed to prepare a lynching/ mob violence victim compensation scheme within one month from July 17, 2018. The scheme must have provision for interim relief to the victim(s) or to the next of kin of the deceased within a month of the incident, the Court had held.

The Supreme Court made it clear that cases of lynching and mob violence should be tried by designated courts/fast track courts earmarked for that purpose in each district on a day-to-day basis, and the trial concluded within six months from the date of taking cognisance. The Court made this direction applicable to even pending cases.

In a rather unusual sense, the Supreme Court even held that trial courts must ordinarily award maximum sentence as provided for various offences under the IPC upon conviction of the accused for mob violence and lynching.

Among the punitive measures, the Supreme Court had held that a police officer who neglects his duties, under this judgment has to face departmental action within six months, apart from “appropriate action” for misconduct.

The Court also recommended to Parliament to create a separate offence for lynching and provide adequate punishment for the same. A special law would instill a sense of fear for law amongst the people who involve themselves in such kinds of activities, the Court had observed.

Despite the Court’s preference for a special law, the centre, which initiates legislation in Parliament, found no moral obligation to implement the Court’s recommendation. The centre just constituted an Empowered Group of Ministers (GoM) for the purpose of considering the nature of legislation to be brought in.

This GoM is now headed by Home Minister Amit Shah and what it proposes to do to bring in a new law or strengthen the existing provisions remains unclear. This indifference, therefore, has had an impact on the remaining authorities, who also have binding responsibilities to fulfill under the judgment.

Among the states, only Manipur and Rajasthan have reportedly followed the Supreme Court guidelines. The Uttar Pradesh State Law Commission has, in a suo motu report, admitted that over 50 incidents of mob lynching have taken place in the state in the last seven years. The UP Law Commission also proposed a draft Bill to combat mob lynching. The Bill prescribes a minimum of seven years’ imprisonment to a maximum of life imprisonment for the offence.

As a deterrent measure, the Bill has prescribed imprisonment for a year for any policeman or district magistrate who fails to prevent incidents of lynching within their jurisdiction, and up to three years’ imprisonment for dissemination of offensive material on social media.

The Congress government in Rajasthan has introduced the Rajasthan Protection from Lynching Bill to provide designated courts to ensure expeditious trial of cases related to lynching. The Bill provides a wide definition of lynching that includes “dietary practices” and “sexual orientation” as possible grounds for assault.

The lack of a precise definition of lynching in the Supreme Court’s judgment, according to activists, led many police officials to treat “lynching” incidents as ordinary crimes, thus not meriting the application of guidelines laid down by the Court.

The Rajasthan Bill defines lynching as “any act or series of acts of violence or aiding, abetting, or attempting an act of violence whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity”.

The Bill provides for compensation to the victims or their legal heirs, apart from their entitlement for accommodation and rehabilitation, in case of their displacement from their residence. Although the Bill is timely, questions are bound to be asked whether it would help to change the mindset of the officials, who tend to consider cases of lynching as something else to avoid following the Supreme Court’s guidelines.

The state government came under criticism after a charge sheet was filed against two sons of Pehlu Khan, who was lynched two years ago for alleged cow smuggling.

The lack of compliance with the Supreme Court’s guidelines must be seen in the context of the failure of the centre and state governments to follow the direction to broadcast on radio and television and other media platforms that lynching and mob violence of any kind would invite serious consequences under law.

On September 24 last year, the same bench which delivered the judgment on July 17 last year, directed compliance with the direction within a week. Despite assurance by the Attorney General, KK Venugopal, and Solicitor General Tushar Mehta, this directive has not been complied with. Perhaps the centre and states assume that broadcasting against lynching would mean admission of the rise in such incidents, which the governments seek to deny. Compliance with just this direction could have helped to create a mindset among officials against lynching and create a public opinion against mob violence of all kinds.

The Supreme Court’s judgment against mob lynching has an inherent flaw in that it declined the plea of the petitioners to declare the provisions of cow protection laws of various states, which empower vigilante groups to use force to prevent cow smuggling, as unconstitutional.  The Court was naive to believe that its moral exhortations alone would be sufficient to answer the petitioners’ prayers.