~By Inderjit Badhwar

Many of us watch with helpless horror the headlines that regularly tear into our senses and sensibilities: “Jamshedpur limps back to normalcy after lynching of 7 men over WhatsApp rumour.” “African lynched in Delhi after spat over auto ride….” Have our roads and streets and farmlands become sanctuaries of immunity for practitioners of hate and blood?

Writes Ashok Swain, Professor of Peace and Conflict Research at Uppsala University, Sweden: “Since the lynching of Mohammed Akhlaq in Dadri on the night of September 28, 2015, many incidents of savagery of such vigilante groups on Muslims and Dalits have taken place—in Daltonganj in Jharkhand, Una in Gujarat, Mandsaur in Madhya Pradesh, Sonepat in Haryana, Reasi in Jammu and Kashmir, Chittorgarh and Alwar in Rajasthan and recently even in the nation’s capital itself, Delhi.” He observes that the regularity of such crime in India is not due to lawlessness but because the authorities refuse to provide protection when needed.

This view is echoed by Namita Bhandare in a passionate piece in the Hindustan Times: “Nothing exemplifies the moral slide from Dadri to Alwar as much as the indifference by us citizens to the medieval-style lynching of dairy farmer Pehlu Khan. In parliament, minister Mukhtar Abbas Naqvi flat-out denied that such an incident had taken place. In BJP-ruled Rajasthan, the state home minister, blithely stated: ‘He must have transported the cows illegally, hence he was penalised.’ I guess we’re lucky that chief minister Vasundhara Raje has not deigned to speak. There’s silence too from the courts…. This lynching, this erosion of right to life, this whittling down of civil liberties where marauding mobs in Meerut can barge into the house of a citizen without fear or consequence….” She wonders why this does not shake our judicial system into action.

Is India losing its inherently tolerant eclectic worldview, the cornerstone of Indian values? And why is this happening? Professor Aftab Alam of Aligarh Muslim University believes that “from meat politics to love jihads, such incidents have strained India’s constitutional values and secular fabric, leaving many to wonder whether Prime Minister Modi’s development agenda—for which he has declared ‘Sabka Saath, Sabka Vikas’ (development for all together)—is just a farce. Has this atmosphere of fear and insecurity among India’s minorities been calibrated to consolidate majoritarianism in the upcoming 2019 legislative elections?”

He observes that after a humiliating electoral defeat in Uttar Pradesh in March, secular parties and liberal intellectuals are demoralised and rudderless. They fear raising their voices against these murderous violations of the constitutional right to life. These infringements are accelerating because of a culture of impunity stemming from the authorities’ refusal not only to catch and punish the vigilantes but rather to pounce on the victims and charge them with crimes.

The state’s apparent complicity has now come under fire from the international organisation, Human Rights Watch: “The Indian authorities should promptly investigate and prosecute self-appointed ‘cow protectors’ who have committed brutal attacks against (minorities) and Dalits over rumors that they sold, bought, or killed cows for beef. Instead of taking prompt legal action against the vigilantes, many linked to extremist groups affiliated with the ruling party, the police, too often, have filed complaints against the assault victims, their relatives, and associates under laws banning cow slaughter.”

Is there a hope that impartiality and justice can prevail in such cases? Only if the state is respected as not being complicit.

Vocabulary.com describes lynching as putting to death of a person through mob action without recourse to the law—“an unlawful murder by an angry mob of people. Throughout history, dominant groups have used lynchings as a way of controlling minorities. When people take the law into their own hands and decide to punish a suspected criminal—or merely a person who’s seen as challenging the status quo—the result can unfortunately be a lynching. Lynchings have most often involved hanging, especially during the period of racially motivated lynchings in the American South”.

According to the National Association for the Advancement of Colored People (NAACP), a leading US civil rights group, 4,749 innocent Americans, 80 percent of them black, were lynched by white mobs or hate groups between 1882 and the mid 1960s.

Here’s what most people don’t know. Till date, there’s no anti-lynching federal law in America. Over 200 anti-lynching bills have been introduced in the Congress by the House of Representatives but never passed bec-ause they were blocked in the upper house by senators from the South where most lynchings occurred. The argument was that this was a state law and order subject and a federal law would nullify the principle of states’ rights.

Lynchings in America came to a halt only after the enactment of the Civil Rights Act of the 1960s when the federal government began to prosecute lynchers against whom there was no action by a state or those who had been acquitted in state courts. Also, as Professor Harvard Sitkoff (University of New Hampshire) told National Public Radio : “Southern states (later) began to do much, much more to stop lynching from occurring and by themselves prosecuting lynchers when a lynching did occur. To a very large extent, then, a federal anti-lynching law became superfluous.”

In July 2015, the US Senate offered a rare collective apology. It passed a resolution expressing remorse over having failed to approve a law against lynching. This is an extraordinary piece of evidence that lynchings actually become commonplace when the state is complicit. The bills passed in the lower house recognised this.

The best known law on this was crafted by Congressman Leonidas C Dyer of Saint Louis Missouri, and supported by Republican President Warren G Harding. Known as the Dyer Anti-Lynching bill, it passed the House in 1922, but failed in the Senate. Widely recognised as a model piece of legislation, it would have put a stop to this barbaric practice.

Its purpose was “to protect citizens of the United States against lynching in default of protection by the States”. According to an archival report of the US House of Representatives, Dyer’s bill provided the blueprint for all subsequent NAACP-backed anti-lynching measures.  It sought to charge lynch mobs with capital murder charges and to try lynching cases in a federal court. It levied on each county where a lynching occurred, a fine of between $5,000 and $10,000 that would be paid to the victim’s immediate family or, if none existed, to the US government to facilitate prosecution of the case. The Dyer Bill also mandated jail time and imposed a fine of up to $5,000 on state and local law enforcement officials who refused to make a reasonable effort to prevent a lynching or surrendered a prisoner in their custody to a lynch mob. Finally, the bill sought to establish guidelines for fair courtroom proceedings by excluding lynch mob participants and supporters from juries.

Says the archival report: “Dyer’s rationale was elegantly simple: Lynching—and states’ refusal to prosecute the perpetrators—violated victims’ 14th Amendment rights. This forbids states from denying any person ‘life, liberty or property, without due process of law’ or to ‘deny to any person within its jurisdiction the equal protection of the laws’.” By directly mentioning the role of the states, the 14th Amendment greatly expanded the protection of civil rights to all Americans and is cited in more litigation than any other amendment.

Anticipating that members would object to the bill because it involved federal control over social policy, he cited the slate of child labour laws the chamber had enacted and Congress’s December 1917 passage of the 18th Amendment, which forbade the production, transportation or sale of alcohol within the United States: “If Congress has felt its duty to do these things, why should it not also assume jurisdiction and enact laws to protect the lives of citizens of the United States against lynch law and mob violence? Are the rights of property, or what a citizen shall drink, or the ages and conditions under which children shall work, any more important to the Nation than life itself?”

The Indian constitution has a similar feature—Article 21, often referred to as the “heart of fundamental rights”. It states: “No person shall be deprived of his life or personal liberty except under procedure established by law.” Notes Legalserviceindia.com: “The object of the fundamental right under this Article is to prevent encroachment upon personal liberty and deprivation of life by the state only. If an act of a private individual amounts to encroachment upon his personal liberty of deprivation of life, the violation would be covered under Article 226 of the Constitution or under general law. But if an act of a private individual supported by the state infringes upon the personal or life of another person, the act would certainly come under the ambit of Article 21.”

It appears that Indian laws are sufficient to bring lynchers to justice. But if states and politicians and local authorities are complicit through design or default, it makes sense to take a page out of Congressman Dyer’s book and bring in a specific law. But given today’s vitiated atmosphere, is anybody willing to bell the cat?

                  —Inderjit Badhwar is Editor-in-Chief, India Legal. He can be reached editor@indialegallive.com