Anti-lynching law

Dodging duty

Print edition : August 18, 2017

Lynching victim Pehlu Khan's sons Irshad (second from right) and Arif (left), and other family members, at a public meeting on Agrarian Crisis, Cow Politics and Lynching in New Delhi on July 7. Photo: PTI

Shashi Tharoor (Congress), Tehseen Poonawalla (core member of MASUKA, or Maanav Suraksha Kanoon), Digvijay Singh (Congress) and Salman Khursheed (Congress) at a seminar on the issue of mob lynching and enactment of MASUKA law, in New Delhi on July 19. Photo: SHANKER CHAKRAVARTY

Instead of bringing in a strong law against lynching and other forms of violence by cow vigilantes, the Centre plays down the seriousness of the threat from them.

THE continuing incidents of lynching in the name of the cow and rampant bovine vigilantism in the past few years have stirred a debate on the need for a separate law to deal with mob lynching and acts of administrative omission and commission. The murder of 16-year-old Junaid, a resident of Khandawali village in Faridabad district of Haryana, at Ballabgarh on June 22 on a Delhi-Mathura train by a communally charged mob was the tipping point. Junaid was subjected to communal slurs when he was attacked. The incident repulsed national sensibilities to a large extent and evoked opprobrium abroad, with some international newspapers commenting on the rising vigilantism in India. But bovine “vigilantism” continued even after the Ballabgarh incident.

In the Rajya Sabha, a notice for a short-duration discussion given by 130 members on the “situation arising out of reported increase in incidents of lynching and atrocities on minorities and Dalits across the country” resulted in an intense debate for two days with less than satisfactory answers from the government. Opposition benches made a common demand for a Central law banning vigilantism while individual members detailed the context and factors that were causing polarisation, including various statements made by Prime Minister Narendra Modi regarding cow protection in the past few years. The members also pointed out the economic losses to the meat export and leather industry apart from livelihood losses due to vigilantism.

‘Cow revered’

The intervention by Mukhtar Abbas Naqvi, Minister of State for Parliamentary Affairs, and the replies by Minister of State for Home Hansraj Gangram Ahir and Finance Minister Arun Jaitley seemed to play down the gravity of the insecurity faced by sections of the minority community. Naqvi said the incidents were of a criminal nature and should not be linked to “communalism”. He also stressed that in each incident, the persons concerned had been arrested. Ahir said that the National Crime Records Bureau did not maintain a separate category of crimes listed under “mob lynching”.

Jaitley explained the reasons for the enactment of the laws preventing cow slaughter and how Article 48 came about in the Directive Principles of State Policy, essentially saying that the matter was a State subject. He said no one should eulogise cow slaughter where it was prohibited, referring obtusely to a Chief Minister in a Congress-ruled State for having declared a fondness for beef. He also decried the public slaughter of a calf in Kerala. Echoing the Prime Minister’s words, he said “as far as the cow was concerned, there is a huge segment in the country that reveres it”.

It was stated that personal enmities, too, could be behind the lynching incidents and that anti-social elements were using cow protection as an excuse for violence. In fact, it seemed that the government was not at all interested in making a distinction between such violence and general violence, including political violence.

During the course of the heated debate in the Upper House, the treasury benches tried to shift attention to the political violence in Kerala, which was quite unrelated to the lynching incidents, the bulk of which, according to IndiaSpend, an online data journalism initiative, had occurred in States governed by the Bharatiya Janata Party (BJP). The portal’s content analysis found that around 86 per cent of those who died in cow-related violence since 2010 were Muslim and that 97 per cent of the attacks occurred after 2014, that is, after the BJP-led National Democratic Alliance government was formed at the Centre; 32 of the 63 bovine-related cases came from States governed by the BJP; and 2017 was the worst year for cow-related violence.

At the all-party meeting on July 16, before the commencement of the Parliament session, Modi exhorted all State governments to take strict action against those violating the law in the name of cow protection but cautioned that cow vigilantism should not be given a political and communal colour as the nation did not benefit from such a posture. The caution was clearly aimed at the opposition parties and at his detractors.

According to agency reports, he said that there was a “widespread belief that the cow was like a mother but this should not let people take the law into their own hands”. The caveat that “cow vigilantism” should not be given a political colour despite its obvious ideological underpinnings seemed to indicate that the spate of vigilantism was to be considered just another law and order problem.

Draft of law

Contrary to what the government might feel about the lynching incidents, there is an increasing recognition that such murders are not just random events, irrespective of the motives involved. Lynch-mob justice has become the order of the day, especially lynching by bovine vigilantes. In a conversation with an online media portal, Jalaluddin, Junaid’s father, welcomed the idea of a law against lynching.

There are enough data to show that in 2017 alone nearly 20 incidents of vigilantism centred around the cow took place and that the majority of them involved systematic targeting of members of the minority community. The idea of a separate law to deal with lynching came up in the specific context of Junaid’s murder, though the drafters of the law, a group of individuals and legal experts, have aimed at addressing a gamut of lynching incidents. A draft of the law titled “The Protection from Lynching Act, 2017”, or Manav Suraksha Kanoon, was submitted to the Prime Minister’s Office on July 12. At a joint press conference on July 9, representatives of leading opposition parties—the Congress, the Communist Party of India (Marxist), the Rashtriya Janata Dal, the Samajwadi Party, the Dravida Munnetra Kazhagam, the Aam Aadmi Party, the Nationalist Congress Party, the Bahujan Samaj Party and the Janata Dal (United)—declared their support for the Bill and said that if the government failed to enact it, it would be taken up as a private member’s Bill.

The senior advocate Sanjay Hegde, who along with the entrepreneur Tehseen Poonawalla was one of the drafters of the proposed law, told Frontline that the drafting team was not fixated on the terms of the law. It was for the government to do that, he said. “If the Centre enacts it, it would be welcome. As many States have enacted cow slaughter prevention laws, an anti-lynching law can surely be enacted,” he said. The draft legislation addressed the build-up to the violence, the processes, and all the dramatis personae involved. To the argument that the present provisions in the Indian Penal Code (IPC) were enough to deal with assault or murders committed by lynch mobs, it was explained that in ordinary murders, the victim and the perpetrator invariably would have known each other.

“The law needs to be much more severe where the mob is both judge and executioner. Culpability is not only on the mob but on those inciting it through various means, through the social media, through public statements, etc. The culpability has also been affixed on the police and district officials who ‘look away’ when such incidents occur,” Hegde said.

The proposed legislation describes lynching as “any act or series of acts of violence, whether spontaneous or planned, committed to inflict extrajudicial 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 and cultural norms/prejudices”.

The IPC does not define lynching. The proposed law makes all offences cognisable and non-bailable and provides for investigations only by officers of the rank of Inspector of Police and above. It seeks to protect the “constitutional rights of vulnerable persons, to punish acts of lynching, to provide Special Courts for the expeditious trial of such offences, for rehabilitation of victims of lynching and their families”. It defines a mob as two or more individuals assembled with the intention of lynching.

The draft legislation also covers the “processes” involved, such as “offensive material” used to incite a mob or lynch a person, which includes material promoting lynching on the grounds of “religion, race, culture or any other grounds”. It suggests that police officers and station-in-charges are required to take steps to prevent lynching, including its incitement and commission and, therefore, identify instances where offensive material has been disseminated or other means employed to incite or promote lynching of a person or a group of persons. Going further, they are also required to make efforts to identify patterns of violence in the area under their jurisdiction that indicate occurrence of targeted violence, including the creation or the existence of a hostile environment against a person or group of persons.

Similarly, if the District Magistrate has apprehension that an act of lynching may occur, he or she would be required to prohibit any act that might lead to incitement and commission of the act of lynching itself. The punishment for the offence of lynching ranges from imprisonment for seven years, 10 years to life, depending on whether the act results in hurt, grievous hurt or death respectively. The offences are accompanied by fines with the amount graded according to the severity of the offence. Interestingly, the proposed Act provides for the same punishment for any conspirator or abettor to the act of lynching. In order to overrule patronage and interference, it provides for punitive clauses for obstructing the legal process and threatening witnesses. There are clauses that make punishable the dissemination of offensive material and dereliction of duty by the police and also the District Magistrate.

The Act provides for the recording of statements of victims and witnesses within six months or 180 days from the date of the incident; ensuring witness and victim confidentiality if so demanded; and free legal aid if demanded by the victim. It also enjoins on the State governments to provide for witness and victim protection and compensation.

Petition against violence

In September 2016, much before the campaign for an anti-lynching law began, three petitions were filed in the Supreme Court seeking directions to State governments to rein in cow protection groups, or gau raksha dals, and to the Central government to ban such groups. The petitioners, who included a survivor of a lynching incident, sought the removal of violent content uploaded by these groups on social media and compensation from State governments for victims of vigilante violence in their States. One petition pleaded that State governments give identity cards to vigilantes, especially where they have been guaranteed status and protection by cow protection laws.

In one of the petitions filed by Martin Macwan, a known Dalit activist, it was pointed out that the Gujarat Animal Preservation Act, 1956, for instance, provides that all persons under the Act shall be “deemed to be public servants within the meaning of Section 21 of the IPC”, and that “no suit, prosecution or other legal proceedings shall be instituted against any person for anything which is done in good faith or intended to be done under this Act or the rules thereunder”. These provisions, the petition stated, were “ mutatis mutandis with the Maharashtra Animal Preservation Act, 1956, and the Karnataka Prevention of Cow Slaughter and Cattle Preservation Act, 1964”. The Gujarat Animal Preservation (Amendment) Rules, 2011, also provides that authorised persons shall include “office bearers of Panjrapol, infirmaries, gaushalas and societies for prevention of cruelty to animals and animal welfare organisations”. There were some 200 gau raksha dals in Gujarat alone that “frequently resort to violence”, the petition stated.

Other petitions have asked for decriminalising the possession of beef and the handling of cattle. In April, the Supreme Court issued notices to the Union government and governments of six States where the incidents of “bovine” lynching were reported. Only Karnataka and Jharkhand submitted written replies to the court. Gujarat, Rajasthan, Uttar Pradesh and Maharashtra and the Centre did not submit their replies in spite of repeated court orders. On July 21, in the course of a hearing on the matter, the Centre told the court that it had no role in ending violence by “gau rakshaks”, which was a State subject.

Continuing unabated

Cow vigilantism is continuing unabated despite a national outcry. On July 24, a truck carrying meat packets was torched on the national highway in Ganjam district in Odisha following a rumour that it was carrying beef. Replying to the short-duration discussion in the Rajya Sabha on attacks on Dalits and minorities, Jaitley said that “violence can never be a partisan issue”. Yet, in bovine-related lynching, violence has taken a partisan form, a fact which the government, for obvious reasons, is loath to recognise.

Whether a Central law or a State law can prevent mob action of all kinds is one thing; admitting that mob violence, more so of a specific kind directed at minorities and Dalits, exists is quite another.

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