INTRODUCTION
Our justice system upholds the principle of ‘innocent until proven guilty’. That applies to a suspected pickpocket as much as to a murder accused. Whether or not it can be misused politically, this presumption must be a moral imperative for action in any civilized society, since guilt can’t be assumed without fair trial. Where in the country such a presumption is followed at the same time the concept of taking the law into one’s own hands to punish a criminal almost certainly predates recorded history.
MOB LYNCHING
The term lynch law practice refers to a self-constituted court that imposes sentence on an individual without due process of law. Lynching could even be a kind of violence during which a mob, under the pretext of administering justice without trial, executes a presumed offender, often after inflicting torture and corporal mutilation. Lynching related attacks mostly include attacks by vigilantes, murder and plan to murder, harassment, assault, gang-rape etc. The victims are brutally beaten, chained, stripped and hanged causing grievous injuries or death.
While the scenario of our country is such as it deals with such presumed offender in an irrational manner the supremacy of judiciary comes into question. India features a common law system whose infrastructure bears the influence of British colonial rule. Presumption of innocence although not explicitly mentioned, but is undoubtedly flowing within the Indian Criminal Jurisprudence. The International realm also acknowledges this valuable rule, one can find it engrained in Universal Declaration of Human Rights 1948. It states:
Everyone charged with a penal offence has the proper to be presumed innocent until proved guilty consistent with law during a public trial at which he has had all guarantees necessary for his defence[1].
When there is a formula of finding a culprit and punishing under the law of the land by following a trial, the taking of law into one’s own hand by the mob gives a scare. India being a country following the norms of “99 guilties should escape but one innocent must not be convicted”, lacks proper implementation of maintaining the security of an individual who is only a “presumed” offender, even though he be proved to be a culprit, he deserves a “Fair Trial”. India doesn’t have a selected law to affect lynching. Although the Indian Penal Code (IPC) does not mention the word “lynching”, however, Section 223(a) of the Code of Criminal Procedure (CrPc), 1973 states that persons or a mob involved within the same offence within the same act are often tried together. Somehow this provision has not helped in delivering justice in cases of lynching.
The legal provisions present in our country currently have no laws to affect lynching or mob attacks, however, the punishment for mob lynching is provided under the ambit of the following laws currently under the Indian Penal Code[2]–
Sec 34
This section highlights the punishment for Acts done by several persons in furtherance of common intention. When a criminal act is completed by several persons in reference to a standard intention, each of such persons is responsible for that act within the same manner as if it were done by him alone.
Sec 120 B
This section mentions the punishment for parties participating in a criminal conspiracy. In case the Conspiracy is completed for an offence which is punishable with death or captivity or with imprisonment for two years or more, the offender is to be punished within the same manner as in case of abetment of the offense.
In case of conspiracy for an offense that’s not punishable with death, captivity or imprisonment for two years or above, the offender is susceptible to be punished with imprisonment for up to six months, or with fine or both.
Sec 143
Section 141 defines ‘unlawful assembly’ as an assembly of 5 or more people so on use/show criminal force or to resist the execution of law or criminal trespass etc. which is punishable under Section 143 of the code with imprisonment for up to 6 months, or with fine, or both.
Sec 147
Section 146 of the code defines ‘rioting’ as an offense where an unlawful assembly or a member uses force or violence within the prosecution of a standard object of the assembly. Section 147 of the code identifies every member of such an assembly guilty of the offense of rioting and is awarded imprisonment for up to 2 years, or with fine, or both. In case of rioting involving deadly weapons the punishment prescribed is for imprisonment for up to three years, or with fine, or both.
Sec 149
This section identifies every member of an unlawful assembly to be guilty of an offence committed within the prosecution of a standard object if the members of that assembly knew to be likely to be committed in prosecution of that object.
Sec 302
This section of IPC deals with punishments associated with murder i.e. the one that commits murder is punished either with a punishment of death or imprisonment for all times. In many cases, the convict may even be liable to penalized.
Sec 304
This section deals with punishment for culpable homicide not amounting to murder which can be for life imprisonment for a term which can reach ten years, and shall even be susceptible to fine just in case the act is completed with an intention to kill or cause injury that is likely to cause death.
Sec 307
This section deals with the punishment just in case of plan to murder. A person who does an act with an intention or knowledge that his action may cause death would be guilty of murder and is to be punished with imprisonment of either for a term of up to ten years and also be liable to fine.
This section defines the punishment for causing hurt voluntarily. Whoever, except if provoked as per section 334, voluntarily causes hurt, is bound to be punished with imprisonment which may extend to one year, or with fine (up to one thousand rupees), or with both.
Sec 325
This section deals with punishment for causing grievous hurt voluntarily. Under the supply of this section, if an individual, except just in case of provocation (as provided for by section 335), voluntarily causes grievous hurt, is probably going to be punished with imprisonment of either for a term of up to seven years and also payment of fine.
In the case of Arumugam Servai v. State of Tamil Nadu[3] the Supreme Court had directed States to take disciplinary action against the concerned officials wherever they did not prevent the incident, despite having prior knowledge of it.
MANAV SURAKSHA KANOON
The MaSuKa Bill was drafted by the National Campaign against Mob Lynching known as the Manav Suraksha Kanoon (MASUKA) to begin a legal conversation against lynch mobs according to which a law was drafted in order to accommodate a new law regarding mob violence by amending Article 21 of the Constitution of India. It also mandated that the concerned SHO (Station House Officer) of the world would be suspended until a time-bound judicial probe absolves him of charges, yet the govt has not taken any note of the MaSuKa bill.
STATE LAWS PUNISHING MOB LYNCHING
Manipur
The Manipur government came up first with its Bill against lynching in 2018, incorporating some logical and relevant clauses. The Bill specified that there would be nodal officers in each district to regulate such crimes. Police officers who fail to stop the crime of lynching in their jurisdiction are susceptible to be imprisoned for a term which will extend from one to 3 years with a fine limit of Rs.50, 000. Additionally, no concurrence of the State government is required to prosecute them for dereliction of duty. It devolves upon the State to protect victims of mob violence and witnesses from any inducement or coercion apart from initiating schemes for rehabilitation and fixing relief camps where a community is displaced. The law provides for adequate monetary compensation to the victims or their immediate kin.
Rajasthan
The Rajasthan government passed a bill against lynching in August 2019, not a flash timely, as long as consistent with Parliamentary Affairs Minister Shanti Dhariwal, “After 2014, 86% cases of mob lynching reported within the country happened in Rajasthan.” However, not only has the govt accepted only a couple of guidelines issued by the apex court, but is additionally silent on any action to be initiated against cops who could also be accused of dereliction of duty.
West Bengal
West Bengal came up with a more stringent Bill against lynching. Punishment for lynching to death is punishable with the death penalty or life imprisonment and a fine of up to Rs.5 lakh.
Although the Legislative Assemblies of West Bengal and Rajasthan passed anti-mob violence bills as well, their enactment was reserved by their respective Governors for the President’s consideration. This is why, as under Article 200 of the Constitution, these bills are now on the table of the President of India, waiting for his assent. Cases of mob lynching have not just increased, they are evolving and now, the character of the crime is diversified. From going after Muslims who eat cow-meat, mobs are attacking those who are alleged ‘child abductors.’ Until a zero-tolerance attitude is adopted in dealing with mob lynching, this crime will continue to show a rising trend.
CONCLUSION & SUGGESTIONS
‘The law, the mightiest sovereign during a civilized society’, India has witnessed numerous lynching and mob attacks report from various parts of the country recently, most of which is as a consequence of reaction to the beef-ban orders of the government within the country. There is little question that the lynching activities supported identity discriminate against an entire community which violates Article 14 and Article 15 of the Constitution of India.
Given things of mob attacks within the country presently there’s a requirement for separate legislation and strict implementation procedures to curb the attacks and punish the wrongdoers. There must be a legislation which shall apply not particularly to few states but to the country as a whole. Only drafting a law will not solve the problem, the root cause of such hated crimes need to be watched upon and put an end to it. What is the use of punishing a culprit of mob lynching when the victim of such violence is already dead or is under severe injuries? “Precaution is best than cure.” The laws must be so stringent that the gang of individuals doesn’t even consider such violence, again making a law isn’t enough until it is implemented to the fullest, the public must be so assured that the presumed offender if a culprit be punished to what he deserves, as the famous saying goes, “Justice must not only be done, but ought to be done.”
Presumption of innocence has today been watered down on the pretext of speedy justice but one should remember justice hurried is definitely justice buried. The Supreme Court of India is not just a court of law, but also a court of equity and hence the constitutional courts are to do justice and not just to follow the legislation like the English courts, as it is stated by the apex court, Justice is a virtue which transcends all barriers and the rules or procedures and the technicalities of law cannot stand in the way of administration of justice. Law has to bend before Justice.
[1] Article 11(1) of UDHR 1948
[2] Gaur; K.D.; Indian Penal Code; Universal Law Publishing; 6th edition; Reprint 2018.
[3] [(2011) 6 SCC 405]
This article has been written by Simran Garg, she is a law student pursuing BBA. LLB from the Indian Institute Of Legal Studies, Siliguri, West Bengal. Presently she is in the last year of the course and is ready to face any future challenges that come on my way during her professional life.
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