By Sanjeev Sirohi*
It has to be said right at the outset that mob lynching cannot be justified on any pretext and under any circumstances come what may! There has to be zero tolerance for it but right now we see that the perpetrators of the crime are either escaping with just no punishment or are being punished on a very lenient basis thus making a complete mockery of our country on the world stage! It merits no reiteration that this must be set right now.
What message are we sending to the world if we don’t ensure that mob lynchers are promptly punished with most appropriately death penalty or at the least with life imprisonment for at least 25 years in jail without any parole or remission of any kind whatsoever? How can mob lynching be justified by anyone under any circumstances? Are we living in Talibani India? Certainly not!
Every year we get to hear many incidents of mob lynching but when do we hear that mob lynchers have been mob hanged or mob jailed for life! Centre must now wake up and act on this immediately. I rate mob lynching no less than terrorism rather even worse than terrorism because without being trained ever by the intelligence agency or army of any foreign country such brutal crimes are committed most heinously!
There is no reason that why it must not be crushed with an iron hand and those involved in it be made to pay for it by paying fine of many lakhs and also death penalty or life term! We all know how even a police officer Mohammad Ayyub Pandit was not spared in Kashmir and his body was broken after mob beat him badly, broke all his bones and set him ablaze! Same is the case in many other similar cases! We saw how brutally Tabrez Ansari was mob lynched in June yet the Jharkhand police has sought to charge the 11 men with culpable homicide that does not amount to murder! Should all those involved in such heinous acts not be hanged promptly? Yet we see that not even murder charges are slapped against such mob lynchers!
Needless to say, we all know fully well that even Supreme Court in Tehseen S Poonawalla Vs Union of India & Ors in Writ Petition (Civil) No. 754 of 2016 delivered on July 17, 2018 has most unequivocally directed the Centre and States to take preventive, punitive and remedial measures to stop lynching incidents in the future and issued detailed guidelines pertaining to the same. The Apex Court Bench has minced just no words to hold unequivocally that the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. Article 21 of the Constitution guarantees the right to life and personal liberty to all the citizens of our nation and no mob can be allowed under any circumstances to hold it to ransom!
Having said this, it must now be brought out here that the Apex Court then issued some guidelines to be followed. Those guidelines are as follows:
(i) The State Governments shall designate a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measure to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.
(ii) The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years. The process of identification should be done within a period of three weeks from the date of this judgment, as such time period is sufficient to get the task done in today’s fast world of data collection.
(iii) The Secretary, Home Department of the concerned States shall issue directives/advisories to the Nodal Officers of the concerned districts for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice.
(iv) The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents.
(v) The Director General of Police/the Secretary, Home Department of the concerned States shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.
(vi) It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which , in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.
(vii) The Home Department of the Government of India must take initiative and work in coordination with the State Governments for sensitising the law enforcement agencies and by involving all the stakeholders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law.
(viii) The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director-General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands.
(ix) The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police of the States that lynching and mob violence of any kind shall invite serious consequence under the law.
(x) It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind.
(xi) The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind.
(xii) The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.
(i) Despite the preventive measures taken by the State Police, it comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.
(ii) It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).
(iii) Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.
(iv) The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of CrPC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching.
(v) The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. We may hasten to add that this direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers, in particular, to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial.
(vi) To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC.
(vii) The courts trying the cases of mob violence and lynching may, on an application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness.
(viii) The victim(s) or the next kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing.
(ix) The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.
(i) Wherever it is found that a police officer or an officer of the district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance.
(ii) In terms of the ruling of this Court in Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC 405, the States are directed to take disciplinary action against the concerned officials if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.
Simply put, the Bench directed that:
“Apart from the directions we have given hereinbefore and what we have expressed, we think it appropriate to recommend to the legislature, that is, the Parliament, to create a separate offence for lynching and provide adequate punishment for the same. We have said so as a special law in this field would instill a sense of fear amongst the people who involve themselves in such kinds of activities.”
Now it is up to Parliament to act and make lynching a separate offence as soon as possible as the Apex Court has directed.
Needless to say, it was made amply clear by the Bench that the measures that are directed to be taken have to be carried out within four weeks by the Central and the State Governments.
The Bench also made it clear that:
“Reports of compliance be filed within the said period before the Registry of this Court. We may emphatically note that it is axiomatic that it is the duty of the State to ensure that the machinery of law and order functions efficiently and effectively in maintaining peace so as to preserve our quintessentially secular ethos and pluralistic social fabric in a democratic set-up governed by rule of law.
“In times of chaos and anarchy, the State has to act positively and responsibly to safeguard and secure the constitutional promises to its citizens. The horrendous acts of mobocracy cannot be permitted to inundate the law of the land. Earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become ‘the new normal’.
“The State cannot turn a deaf ear to the growing rumblings of its People, since its concern, to quote Woodrow Wilson, ‘must ring with the voices of the people’. The exigencies of the situation require us to sound a clarion call for earnest action to strengthen our inclusive and all-embracing social order which would in turn, reaffirm the constitutional faith. We expect nothing more and nothing less.”
It has been more than a year and two months that the top court had urged the Parliament in this extremely landmark and laudable judgment to enact a separate law to punish offenders participating in lynching of persons yet no action taken till now! India has faced major international embarrassment because of this and will continue to face so thus giving a bad name to our nation if such incidents are not controlled on a war footing immediately! It brooks no more delay now! Centre must abide entirely by what the Apex Court has held so categorically, clearly and convincingly! Let’s hope so!
*Senior advocate based in Meerut, Uttar Pradesh