August 05, 2017

India: It’s time to enact an anti-lynching law | G. Sampath

The Hindu - 4 August 2017

But a civil society draft doing the rounds is too shy to clearly call out the threat to minorities

In a civilised society, even one lynching is too many. But India has seen a spate of them of late. The data website IndiaSpend has compiled instances of cow-linked violence from 2010 to 2017. It found that during this period, 28 people were killed in 63 such incidents.
An overwhelming 97% of these attacks took place after Prime Minister Narendra Modi’s government came to power in May 2014. About 86% of those killed were Muslims. In 21% of the cases, the police filed cases against the victims/survivors. Cow-related lynchings rose sharply in 2017, with 20 attacks in the first six months. This marks a 75% increase over 2016, which had been the worst year for mob lynchings since 2010.
The groundswell of public disgust at the lynchings crystallised under the banner of the National Campaign Against Mob Lynching (NCAML), which has initiated a campaign for a law against mob lynching. Also known as ‘Masuka’, short for Manav Suraksha Kanoon (law to protect humans), a draft of the proposed legislation is currently up on the Internet, awaiting suggestions from the public.
The primary argument of the activists and lawyers advocating an anti-lynching law is that it fills a void in our criminal jurisprudence. It is true that at present there is no law that criminalises mob killings. The Indian Penal Code has provisions for unlawful assembly, rioting, and murder but nothing that takes cognisance of a group of people coming together to kill (a lynch mob).
It is possible, under Section 223 (a) of the Criminal Procedure Code (CrPC), to prosecute together two or more people accused of the same offence committed in the course of the “same transaction”. But the provision falls far short of an adequate legal framework for prosecuting lynch mobs.
The NCAML’s draft Protection from Lynching Act, 2017 defines, for the first time in Indian legal history, the terms ‘lynching’, ‘mob’ and ‘victim’ of mob lynching. It makes lynching a non-bailable offence, criminalises dereliction of duty by a policeman, criminalises incitement on social media, and stipulates that adequate compensation be paid, within a definite time frame, to victims and survivors. It also guarantees a speedy trial and witness protection.

The apprehensions

On the face of it, it is difficult to fault the intent or the provisions of the draft legislation. Nonetheless, two aspects merit close scrutiny: the potential for abuse, and the underlying premise that a generic anti-lynching law could address India’s lynching problem.
On the question of misuse, the provisions empowering local law enforcement officials to take pre-emptive action could easily be invoked to criminalise peaceful public assembly, especially if the gathering is of workers or members of marginalised communities agitating for their rights. For instance, the police could use this law to detain a group of labourers planning a dharna, on the grounds that they constitute a mob that poses a threat to company officials.
To take another example, the ‘Review Committee’ that would monitor the prosecution of cases under this law is supposed to be headed by a senior police officer. Its findings would be submitted to a senior police officer. In a scenario where the police often serve as the handmaiden of the ruling dispensation, could we realistically expect one member of the police force to hold another accountable? Would it not have been prudent to mandate that the Review Committee make its report public or have members from civil society?

A category error

No one can dispute that a major reason for the recent rise in lynchings is impunity. It can be reasonably assumed that the lynch mobs that murdered Mohammad Akhlaq in Dadri, Pehlu Khan in Alwar, and Hafiz Junaid in Haryana were confident of getting away with it. So far, the state has done little to shake that confidence.
The NCAML activists must know that this confidence has little to do with legislative lacuna. Rather, it has everything to do with the law enforcement machinery taking the side of the lynch mob. This phenomenon has been observed time and again in cases of targeted violence against minorities — which is precisely what cow-related lynchings are.
Put simply, the problem is not mob lynching per se but the mob lynching of minorities, for that is where impunity kicks in. We can be certain that if a mob of factory workers were to lynch someone from the management, retribution would be swift. The historical proof of this argument, if one were needed, was supplied by the lynching of Maruti Suzuki’s HR manager in July 2012. The police arrested 148 workers and charged all them with murder.
Evidently, the state can act, if it wishes to, using the existing provisions of the law. It is a matter of whether it is in its interests to do so. In the case of cow-linked lynchings, a lot depends on whether the incumbent in power considers it compatible with its political interests to crack down on such attacks.

It’s about communalism

It is therefore mystifying why the advocates of Masuka appear reluctant to name the problem for what it is: targeted communal lynchings. Perhaps they feel that doing so carries the risk of their campaign being dismissed as a ‘minority issue’. But it actually is a minority issue, and that is why the majority needs to take it up.
It is understandable that in a climate of majoritarianism, any political mobilisation for the protection of minorities would be anxious about the bogey of minority appeasement. It could even mean that an anti-lynching Bill stands less chance of making it through Parliament. But then, a truly ‘civil’ society should feel no hesitation in demanding that the state protect its minorities because protection of minorities is one of the biggest responsibilities of any democracy. The UN has a Special Rapporteur for minority issues precisely because it recognises that “minorities in all regions of the world continue to face serious threats”.
India already has an antidote – two, in fact – to combat the impunity enjoyed by anti-minority lynch mobs. The first is the Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011, or the Anti-Communal Violence Bill. The other is police reforms, which are pending despite the Supreme Court ordering their implementation.
The Anti-Communal Violence Bill was buried because it was felt that it threatened the autonomy of States by mooting a parallel structure that undermined federalism. This is a misrepresentation, and the Bill needs to be revived for three reasons: it fixes command responsibility for communal incidents; it recognises that targeted communal violence disproportionately victimises minorities; and it creates a mechanism to insulate investigations of communal violence from political interference. The last reason is also why police reforms are vital, and a purely legislative approach to tackling anti-minority violence could prove ineffective.
The draft anti-lynching law needs to be revised to incorporate these key elements of the Anti-Communal Violence Bill. Second, the demand for an anti-lynching law needs to be buttressed by a parallel campaign for police reforms. All said and done, even the best of laws can achieve little in the face of a law enforcement machinery primed to do the bidding of its political masters.