‘Durlabham trayamevaitat devanugraha-hetukam;
Manushyatvam maumukshutvam mahapurushasamsrayah.’
This Shloka glorifies the human life, and describes that getting human life is not easy and only through the grace of almighty God one takes birth as a human being. All the modern religions of the world describe the human life as precious. The Universal Declaration of Human Rights, which is the international guardian for protecting the human rights of people also acknowledge the importance of human life and aims to protect it. The Constitution of India also provides to its citizens and non-citizens the right to life and personal liberty.
India is the land of Buddha, Mahavira and Gandhi, which has preached to the world about non-violence. The Indian culture has always acknowledged and respected the value of human life. “Ahimsa Paramo Dharma” which means “non-violence is the path of religion”, is a great saying of Mahabharata, which was further popularised by the father of Nation, Mahatma Gandhi. But, like other civilisation our country has also seen violence over time, be it Kalinga war, Battle of Plassey or Battle of Panipat. Violence in form of massacre and mob-lynching have also been witnessed in India. We have witnessed massacres since time in memorial, but the crime of lynching is a new immergence, whose roots can be found in the last two decades.
Mob Lynching can be understood as extra judicial punishment by the way of intimidating the enemy or opponent group through public execution and often includes sectarian violence. Further it can be understood as putting someone to death without the legal permission or approval to kill someone. It is the practise of punishing an alleged transgressors, by a mob which has a particular motive to kill that person.
Massacre on other hand can be understood as a specific incident which involves the indiscriminate killing of a large number of people. Massacre are often the result of clashes between the different clans and communities. In massacre large number of people are killed simultaneously or over a short span of time, by a man or a group of man, who have some prefixed motives to kill the victims.
The point which is common to both of the offences is that, usually in both of the offences a certain group of people who have the common intention and object to kill, do the act of killing. Lynching and Massacre are subset under the set of murder, where no doubt Lynching and Massacre are more heinous and brutal. The point of difference between both of the offences is that, in massacre there must be killing of more than one person but in lynching there may be killing of just one or more persons. In lynching, the aim behind killing is of extra-judicial executionor to inflict fear in the mind of people to not do a certain act, but in massacre the aim to kill may be due to any hate or feeling of revenge between the societies.
These offences are threat to modern society, because through it the mob takes to itself the role of state, and if it is allowed we may again lead towards the Hobbes’ state of nature in which man is nasty, brutish and short and the society is in state of non-peace.
Massacre and mob-lynching have a long past in modern India starting from Akodi and Belchi (Bihar) massacre in mid-70’s to recent mob-lynching of Hafiz Junaid ,Akhlaq, Rajesh and others by self-styled vigilante and other notorious groups in Kerala, U.P and other parts of India. Although massacre has seen a decrease in the last decade but mob-lynching with its increasing number has turned into a serious issue in India.
During the year 2017, there were numerous instances of lynching among which 5 were executed in the month of June alone. Many social organisations rightly believe that lynching is a serious crime which should be dealt separately from murder or in other words mob lynching must be made a specific crime. These groups also started movement like “Not in my name” to express their views against the mob lynching. So, these groups have drafted a draft legislation named as The Protection from Lynching Act (MASUKA) which aims to control the offence defined as lynching in the Act.
This research aims to examine the conceptual and historical aspects of massacre and mob-lynching in detail. Further the research shall analyse that whether the need of hour is to have a separate offence or a special set of Act to deal with these kinds of man-slaughter or not? In other words it will be analysed that whether the offence of murder is sufficient to deal with the offence of mob-lynching and massacre or not? And further the research will analyse that if there is any need of a separate Act, then whether the given draft successfully satisfies the “ought aspect” of the law or not? It will also be examined that whether the draft only addresses the issue of lynching or it also deals with the issue of massacre? The research aims to critically analyse the given draft and to give suggestions if needed in relation to the Act and the steps needed to be taken so as to curb these type of heinous and brutal man-slaughters.
- INCIDENTS OF MASSACRE AND MOB-LYNCHING IN INDIA
Incidents Of Massacre:
Massacre is an indiscriminate and brutal slaughter of many people. It means that the killings are without careful judgement and at a random. It may be against the people of a particular religion per se or a particular community. Our country has witnessed various massacres the most infamous being the Jallianwala Bagh massacre, but it was in pre-independence era and the perpetrators were Britishers. After Independence the players got changed, but massacres kept on happening. There are many massacre from which we will focus primarily on the massacres in which there is no involvement of the state. The history of massacres is very long but the ones which chilled the spine were Belchi massacre of 1977 after which the then off throne Prime Minister, Indira Gandhi visited the place to meet the victims. The official casualty figure is 14. The Lakshmanpur-Bathe massacre in which 58 innocent people including 27 women and 16 children were killed by upper-caste Ranvir Sena on 1st December 1997, just because its members believed that the villagers were Maoists sympathisers who killed 37 men of upper cast in Gaya in 1992.
Bhagalpur witnessed a massive massacres in 1989, this violence was seen in around 250 villages around the Bhagalpur city when the alleged rumour of killing of 2 Hindu students broke out, and over 1000 people were killed among which 900 were Muslims and 100 Hindus. This led to displacement of 50000 people. The Wandhama massacre on 25th January 1998, where 23 Kashmiri Pandits were massacred by the militants Lashkar-e-taiba is blamed to be the perpetrator of this massacre. According to the testimony of the lone survivor, the gunmen came in the dress of Indian Army, had tea with them, waited for the announcement on radio that all the Pandits have been covered and then shot down the members of the family. After this incident a temple was destroyed.
This reading down of history is just to remember how gruesome massacres have been conducted in the country.
Incidents Of Mob-Lynching:
Mob lynching can has been defined as an act of punishing someone without legal process or authority for a perceived offense opposed such as bigotry. Lynching involves violence, which has extended to murder in some cases, against a person accused of crime against community. Although lynching has recently been the headlines of the Indian media but mob lynching is not completely a new concept in India.
- KHAIRLANJI LYNCHING, 2006
In India, the first reported incident of lynching is Khairlanji lynching of 2006. In this lynching all members but one of a Dalit family were brutally mutilated, stripped, paraded in the village by the dominant Kunbi caste and the lone survivor had to fight for a decade get justice.
- DIMAPUR LYNCHING, 2015
A mob of about 7000-8000 people barged into the Dimapur Central Jail on 5th March 2015, dragged the victim out and beat him to death after stripping him. Victim was alleged to have committed sexual violence against a women, and the news that the accused was a Bangladeshi Immigrant spread. With the aim of taking the revenge the mob lynched the victim.
- JHARKHAND (CHATRA) LYNCHING, 2016
Jharkhand lynching refers to the lynching of two Muslim cattle traders in the Chatra District of Jharkhand by alleged cow-vigilantes. They were killed on the news that they were smuggling cattle but the real story was that they were having 8 oxens and were on the way to Chatra market to sell them. They were lynched and hanged by a tree.
- ALWAR, RAJASTHAN LYNCHING, 2017
A Dairy farmer named Pehlu Khan, 55 was beaten by a cow-protection vigilante mob over the alleged news of bovine-smuggling. Khan later succumbed to his injuries. Later all the Six identified accused were given clean-chit by the Police.
- JHARKHAND LYNCHING, 2017
Seven people were lynched on the suspicion of being child-lifters. The violence arose after circulation on warning messages on WhatsApp that a gang of child lifter is active in the region. All the seven people were returning after some work related to Swachh Bharat Campaign. Four of them were Muslim whereas three were Hindus.
- PRATAPGARH, RAJASTHAN LYNCHING, 2017
On 17th June 2017, some municipal officers were trying to scare off women who were defecating in public by taking their photographs when an activist named Zafar khan intervened. He tried to convince them not to take photographs of defecating women, but in retaliation the officers punched and kicked him, and beat with sticks. Zafar succumbed to the injuries.
Other incidents of lynching includes Bhiwandi lynching of 2006 where two police constables were lynched by a mob. The 2003 lynching of 3 youths over an alleged rumour, the lynching of an SSB Jawan over an allegation of illicit relationship.
According to media articles lynching has raised by an unprecedented level after the year 2014.
Some More Incidents Of Mob Lynching Which Shook India
Mob lynching done under whosoever’s government is always detrimental to the legality of the state authorities. Collective harm done through citizens stating it as “Citizen Justice’ is a challenge to the state authority. Therefore this series of events should be critically analysed and needful measures must be taken to curb this menace. Some of the events are highlighted below
- MOHAMMED AKHLAQ’S LYNCHING
The highly covered headline of lynching of Mohammed Akhlaq in September 28 in Dadri where a 50 year old was lynched over alleged consumption and storage of beef. The announcement was made from a nearby temple that he was consuming beef. On 30th September, Uttar Pradesh government ordered magisterial enquiry into the matter.
- JUNAID KHAN’S LYNCHING
The victim Junaid khan was pinched on a train. Junaid with his two brothers was returning from Delhi in a train after shopping for Eid. They had a conflict with some people over the seat but soon the actions turned into calling them “mullahs” and “anti-national”, somebody was pulling their beard someone was playing with their cap. Then suddenly a packet in Junaid’s pocket was termed as beef and now being termed as beef-eater Junaid and his brothers were in serious trouble, meanwhile some men pulled out knives and stabbed them. Junaid succumbed to the injuries.
- D.S.P. AYUB PANDITH’S LYNCHING
This incident of lynching was done by a mob outside Jama Masjid in Nowhatta, Srinagar.On June 22, a mob raising pro-al-qaeda and pro- Pakistani slogans lynched DSP Ayub outside Srinagar’s Jama Masjid on the holiest night for Muslims during Ramzan, Shab-e-Qadr. The 57 year old DSP was deployed to keep an eye on the devotees who came for offering night-long prayers, which were led by Kashmiri Separatist Mirwaiz Umar Farooq, who was also the custodian of the Mosque. Around midnight a crowd started sloganeering for Pakistan and Al-Qaeda operative Zakir Musa. DSP Ayub who was in civil clothing, started making video of the people sloganeering. The mob on seeing this came to him with fists. DSP Ayub got his service revolver and shot 3 bullets below the waistline but was overpowered by the mob. The mob stripped him and hit him with sharp weapons and stones until death.
- RAVINDER LYNCHING 2017
A 32 year e-rickshaw driver was lynched by 15-20 college students after he objected to two drunk students urinating on the roadside. Both the youth went and came back with their friends who lynched the driver by beating him with iron-knuckles and stones wrapped in towels.
- AFRAZUL LYNCHING, 2017
On 6th December, a video from Rajasamand, Rajasthan surfaced on the internet in which Mohammed Afrazul was brutally thrashed and then set ablaze after pouring petrol on his body. He was killed because of love Jihad. The accused Shambhulal Regar was completely unrepentant of the offence and stated that he wants to kill Hafiz Saeed in the same manner. The video was taken by his 14-year old nephew.
- RAJESH LYNCHING, 2017
There were clashes increasing in the state of Kerala and especially in Thiruvananthapuram between BJP-RSS member and CPM member. A violence clash happened between them which culminated the death of a 34 year old Rashtriya Swayamsevak, Rajesh.
Mob- Lynching and massacre are not a completely new concept but the state of impunity is. The cow- related violence have increased to an eye-opening 97% after Prime Minister Narendra Modi’s rise to the position. If we look closer, these incidents are no longer in the name of just bovine protection but now any other reason seems to justify, be it the lynching of Afrazul over alleged Love Jihad or the lynching of an elderly over being “witch” after being alleged to cut the hair of women. The acts of lynching are going out of control and if not contained quickly it might be too late. Although there have been a country-wide protest under the banner of #NotInMyName to express dissatisfaction from at least 16 cities over the current state of law and order specially the mob-violence and Cow-vigilantism but no such step has been taken by the state. Prime Minister in his address to the nation from Sabarmati Ashram centenary celebration stated that cow-vigilantism as “Unacceptable” and condemned the anti-social people behind it. It has led to debates in the Lok Sabha as well as Rajya Sabha and a Draft law “MASUKA” is up for suggestions by the pressure groups.
- DO WE NEED ANY SPECIFIC ACT TO CONTROL MOB LYNCHING AND MASSACRE?
Indian penal code has provisions such as unlawful assembly, common intention, rioting, hurt, grievous hurt, culpable homicide and murder, which is often argued to be sufficient enough to control the offences of mob lynching and massacre. These provisions seems sufficient on the paper, but the practical result is not the same. The Victorian penal statute of India does not specifically addresses the offences of massacre and mob lynching, and treats it similar to other group crimes. There is no specific section in IPC which per se deals with the group of people coming together to kill people. Although they can be charged under Section 34-common Intention, along with murder but the conviction rate is very low in such cases. Under the Section 223(a) of Code of Criminal Procedure two or more persons can be charged for the same offence forming part of the “same transaction” but these provisions do not seem to be sufficient to stop these crimes. To put special control over the crime of mob lynching and massacre the need of hour is to have a separate category of offence under a special law, in form of mob lynching and massacre.
The Code of Criminal Procedure gives the executive magistrate the power to control any unlawful assembly, in order to avoid any unfortunate happening which may destroy the public order and tranquillity. The provision is directory in nature, and no specific punishment has been given under the provision, if the executive magistrate fails to act accordingly. The Code does not bound the executive magistrate by a mandatory and specific duty to control the situations which are prudent enough to lead towards mob lynching and massacre. Also, the Code does not puts any clear obligation over the Police to become extra vigilant in order to control the heinous crimes of this nature. In the recent past the action of Police and local administration to control the heinous crime of mob lynching has been always in question. It is often alleged that the Police hesitates to take action against the person involved in mob lynching, it is also alleged that the Police comes to the spot late and that the intelligence of Police entirely fails to pass report before the incident. The investigation is carried out by the police is often under the political pressure. The crime of mob lynching and massacre is a very serious crime, and if it is not controlled it can lead towards civil war in India. So, we need to fix the mandatory and specific duty over the Police and local administration under a special law. The specific provision under a special law for punishment should also be there against the Police and local administration if they fail to comply with their specific duty.
Bringing specific and special law laws to control the special kind of offences is not a new concept. The Protection of Children from Sexual Offences Act (POCSO Act) 2012, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 etc. are very good example of a special Act dealing with special category of crimes. Similarly, witnessing the rate with which the heinous crime of mob lynching is increasing it is prudent enough to suggest that we should have a special law to deal with the offence of mob lynching and massacre. Massacre has a very violent past, and it has been witnessed in the parts of the country till recent past. In our view, mob lynching if not controlled will lead towards civil wars and it will again revive the crime of massacre, so we also need to make special Act against the crime of massacre. As, the mob lynching and Massacre are the crimes of similar nature, the special law which we are urging for should cover the aspects of controlling both the crimes.
The cases of massacre have shown very high rate of acquittal in the recent past, also the trial has taken so long that many of the accused have died their natural death before the judgement being delivered. The investigation of the Police was always the focal point of acquitting the accused by the courts. So, it is also needed to have the provisions of speedy trial in the special law. In addition to this a special branch of Police should be there to investigate these kind of crimes, by adopting scientific and modern methods of investigation.
The situation prevailing in India is alarming. The crime of mob lynching needs steady control, otherwise the consequences can be very serious. The present provisions in different laws seem compatible on paper to control these heinous crime, but practically these laws have failed on many aspects. So, we need to have a special law which deals with the different aspects related to the offence of mob lynching and massacre specifically.
- CRITICAL ANALYSIS OF THE “MASUKA” DRAFT
On 7th July 2017, the proposed draft of anti-lynching law, “MASUKA” was unveiled at the constitution club, New Delhi, to address the issue of menace of mob-lynching. The drafting committee was headed by Senior Advocate of the Supreme Court Sanjay Hegde and Pranjal Kishore and Anas Tanwir were the members of drafting committee.
The draft defines “lynching” as:
Section 2(a). “Any act or series of acts of violence, whether spontaneous or planned, committed to inflict extra judicial punishment, or as an act of protest and caused by the desire of a mob to enforce upon a person or group of persons any perceived legal, societal & cultural norms/ prejudices.”
The definition of lynching given in the draft is not in the literal sense of the word “lynching”. The term “violence” has been used to define lynching. Lynching in its common sense connote to the extra judicial “death” of the person by a self-styled mob. Dictionaries define lynching as “killing” someone for an alleged offence without a legal trial. Violence is a term which can include even a circumstance where there has been no hurt caused to a person. On ordinary reading the definition of “lynching” seems to be vague, but it is very important rule of interpretation that the whole statute muster be read as a whole. When we read the definition of lynching together with the S. 7 of the draft it becomes very clear that there is separate punishment for hurt due to lynching, grievous hurt due to lynching and death due to lynching. So, the draft has created a definition of lynching not in the ordinary sense, but it includes even those violence which have not resulted into death. As, the Act provides punishment only for hurt due to lynching, grievous hurt due to lynching and death due to lynching, and not just for lynching, the definition is not vague and the given definition will override the ordinary meaning of the word lynching.
The Act has nowhere dealt with the offence of massacre. The offence of massacre and lynching are equally heinous in nature and are almost similar kind of offences. Massacre has decreased over last decade but it still a serious threat to humanity. So, if a law is made for addressing lynching it must also take into account the crime of massacre. Mob-lynching is a crime which generates hatred among communities, and if the hatred is spread among the communities it may create a situation of drift between communities. These situations often lead toward civil war, and massacre is a normal occurrence in the case of civil war. So, both the offences are connected with each other, and it will be advisable to have the provisions for addressing both the offences under the given draft.
The simple reading of the draft makes it clear that the draft has been drafted by just keeping in mind the recent occupancy of lynching but it expedient for any law to include in it also the ancillary and incidental aspects of the law with which the Act is dealing.
The draft provides for the duties of the Police Officer under S. 3 and S.5. The draft very well explains the duty of the Police officer and further under S.12 the draft provides for the punishment to given to the Police officer if he fails in his duty. These provisions makes the duty of the Police Officer mandatory.
The given draft provides that, no sanction of government under S. 196 and 197 is needed by the Court to take the cognizance of the offences against any Police Officer under the given Act, but to take cognizance against DM the sanction is required.
- 4 talks about the duty of the District Magistrate. The Section describes the duty of the DM by using the word “may” which makes it directory. But in later part of the Act, punishment has also been provided for the DM failing to do his duty. So, to avoid this confusion it is better to use the word “shall” in the place of “may”.
The draft nicely provides punishment for the conspiracy, abetment for lynching and also for obstructing the legal process. The draft takes into account the Dissemination of Offensive Material. The term offensive material has been very nicely explained in the S. 2(d) of the draft and further punishment for Dissemination of Offensive Material has been also provided under S. This provision is very important in order to prevent the lynching. The provision takes into account both physical and electronic mode of communication in order to provide effective preventive measures.
The draft provides for compensation to the victims which is a very good step towards victim rehabilitation. This is a very welcome step as Acts of this nature must be victim centric, in order to provide the best judgement. The draft in addition to it also provides for legal aid to the victim and the victim protection has also been given importance.
The draft also addresses the issue of witness protection, as in these kind of offences there is a threat to the life of witnesses. The draft provides that a Designated Judge must take steps, so that a witness has not to go to a Court for more than once. Also, the draft provides that if witness wants to keep his identity secret, the Court must permit for the same. The draft further provides for witness protection also.
The draft provides that the only the officer of the rank of Inspector or above must investigate the offences under this Act, but it is often seen that the investigation carried out by the Police Force is too primitive, and it result in the acquittal of the accused. So, it is advisable to provide for the investigation of the offences under this Act by a Special Branch of Police which is specially trained to investigate these kind of matters using scientific method.
The draft also provides for the setup of “Designated Court” or in other words special court which will be presided by a Session Judge appointed by the government in consultation with the Chief Justice of the High Court under whose jurisdiction the Designated Court falls. The Special Court will have jurisdiction over all the offenses in relation to the given draft Act and in addition to it also on the offences, for which the accused has been charged under the same trial, because the offence the both the offences have occurred in the same transaction of crime. The trial will be done under the procedure followed under warrant case in CrPC. The procedure followed by the court should be same as that followed by Sessions Court under CrPC, other than in matters in which the procedures are repugnant with the given draft. The draft also provides for the daily trial, and that ordinarily the statement of the victims and accused must be recorded within 180 days of the commencement of the trial.
- CAN MASUKA ADDRESS THE ISSUE OF MOB-LYNCHING AND MASSACRE?
The constitution of India guarantees every person the right to life and equal protection of Laws. The proposed act aims to protect the constitutional rights of vulnerable people, to punish acts of lynching, to establish special courts and to rehabilitate the victims of such offences.
The draft of Protection from Lynching Act, 2017 provides specific definition for the terms ‘Lynching’ ‘Mob’ ‘Victim’ and ‘Offensive Material’. Lynching has not been defined anywhere in the Indian Penal Code but the act of lynching involves a series of transaction which already fall in the ambit of crime and thus reading Section 302, 326 and 141/149 makes lynching clearly an offence. The act of Lynching does not finds its mention, per se, in the penal code but the transactions that form part of the act are defined as offences , hence making the whole process punishable.
One of the most important thing is to understand that what caused this draft to come up or the act of lynching coming into the picture i.e. the absence of Rule of Law. It is the absence of enforcement of rule of law and that failure of state mechanisms of law and order. If right action be taken at the right time this situation would not have arisen at the first place. The problem is the enforcement of the law because the primary law enforcement mechanism of the state i.e. police is in question but since this situation has arisen, the present laws and procedure are unable to prevent it and numerous lives are being lost due to lynching we have to curb it with some effective law.
Mob-lynching if not be contained will become an epidemic with everyone taking law into their own hands as it is evident if we look into the lynching of a rickshaw driver because he object to urinating in public by two students. The killing of Zafar khan after he objected to photographs being taken of women defecating in open or the killing of DSP Ayub Pandit in the state of Jammu and Kashmir are some of the serious issues to be looked upon as these incidents have nothing to do with cow or beef consumption.
The draft has been critically analysed in the above section and we are now concerned with how this act can deter the future events of lynching and what will be its effect in the society.
The “MASUKA” provides for stricter law against Mob-Lynching by giving punishment up to life imprisonment and also defines the duties of magistrates and police in such a manner as to prevent lynching. There are specific provisions that define dissemination of offensive and inciting material from social media or any other form as an offence. It has also made punishable conspiracy to lynch another person. It has been seen that in many cases the local police is accused of being complicit in the lynching. MASUKA incorporates provisions to prevent this from happening by providing the case for judicial probe for fair investigation.
In Junaid’s case, none of the eye witness came forward to testify in his defence. The act provides for special protection to witness and political interference is also made punishable. The act provides for a minimum compensation of 25, 00,000 for deaths caused by mob lynching. This amount will at least help the victim to rehabilitate to some extent.
Finally, the draft law proposes for a continuous investigation. If the charge sheet is not filed within 6 months or there is an acquittal, the whole case has to be reviewed by the senior-most police official.
These comprehensive provisions will certainly have greater deterrence than the existing weak laws that have failed to curb these menace. Just like changes were required in the rape laws after the Nirbhaya Rape case, and we needed Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act to prevent atrocities against Dalits, this law is necessary.
The MASUKA draft is certainly a good piece of legislation which aims to control the offence of mob-lynching but the draft must also address the issue of massacre. Both of the offences are closely related and any special statute, if made must address both the offences. So, it is advisable that the draft must be amended and when it is converted into an Act by the Parliament, the offence of massacre must also be given place in the Act.
Life is precious and the modern state is duty bound to protect the life of its people. The Constitution of India puts a liability on the state to protect the lives of all the people under Article 21 of the Constitution. But, the recent increasing incidents of mob lynching and the incidents of massacre are a challenge to the government. These crimes need to be curbed to protect the democracy of the nation.
Through this research we have come to a conclusion that the intensity with which the incidents of man slaughter are increasing we require special laws to address the offence of mob lynching and massacre. And the ordinary law of the nation are not practically sufficient to control the offences of these nature.
It is further concluded that, “MASUKA” is a draft which has been presented by the pressure groups to fight the offence of lynching, but the draft doesn’t address the offence of massacre. It is very necessary to make place for the offence of massacre in this draft. The draft is good and addresses almost all of the issues in relation to controlling the offence of mob lynching, But, we have felt need of some amendments, in the previous segment of the essay i.e. in critical analysis of the draft, we suggest those changes to be brought in the draft before it is converted into an Act.
This article is written by Akankshit Jha and Aditya Agrawal. Akankshit and Aditya are students at KIIT Law School, Bhubaneswar. This article secured 4th position in the RostrumLegal Essay Competition, 2017.
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