Introduction Of Provisions For Mob Lynching In BNS, 2023 In Comparison To IPC,1860

3rd May, 2024 - 7:13 am Categories: News & Updates 0 Comments

Introduction

Bharatiya Nyaya Sanhita (BNS) was enacted in 2023. The new law of crimes has changed several provisions that was drafted in the Indian Penal Code (IPC) during the colonial rule in 1860. This new legislation has introduced the provision of an offence that was popularly known as Mob Lynching. Mob lynching can be easily understood as extrajudicial execution of people based on various factors such as race, caste, community, language etc. This offence is now punishable by    S-103(2), BNS, 2023. In the IPC, such an offence was not recognized, but individuals who were party to such an act were booked under the various provisions of previous crime law such as sections 147, 148, 149, 302, 307, 435, 427 of the IPC, 1860.[1]

The killing of such a nature has also been observed when justice is been observed to be delayed, so people took law in their own hands.[2]

The intention of this analysis is to understand the functioning of law to tackle the offence of mob lynching through the provisions of previous law and BNS, 2023 treading a path for easier booking of the accused. The nature of the act is illegal as a citizen cannot take law into his hands for punishing a person who has allegedly committed a crime or executing a person for any sociological or demographical identities associated with him. The BNS, 2023 in S-103(2) defines the act of mob lynching as murder committed by five or more persons acting in concert for the grounds that are discussed earlier. For such an act that is committed, every member of the group shall be equally punishable. The act of mob lynching also puts a fear in the members of the community to which the victim belongs due to being outnumbered. The dangerous repercussion would be the mob might also face that consequence on being outnumbered. As per Article 21 and other provisions of the Constitution of India, the act of mob lynching violates the victim’s right to life and personal liberty. The right to life has been deemed as fundamental- right by the Supreme Court of India in several cases that involves a variety of situations, and any act that violates this right is illegal and against the principles of the law. This would be amounting to depriving the victim of due process that is upheld by law in our nation.[3]

There is nothing we can do about the lynching now, as we are out-numbered and without arms.[4]

Data Collection of Mob Lynching

In India, mob lynching has become an impediment to law and order, creating tensions in the society for the previous couple of years. As per media reports, over 100 people have been killed in mob violence after 2015. The Union Minister of State for Home Affairs had answered a question in Lok Sabha that data on mob lynching is unreliable. [5]

In the absence of the provision of the mob lynching, tracing the offence of mob lynching committed by people was a cumbersome activity. When three or more persons are involved in activities such as murder, rioting then it would be considered as mob lynching that was written as side note. Therefore, separate data was not maintained categorized as mob lynching.[6] This was a statement by an IPS Officer, that actually displays the sad state of the country.

Reasons for Mob Lynching

• Limited awareness and lack of education:
  1. Limited awareness and inefficient penetration of education among the people would be susceptible to the spread of fake news. This would influence such people leading to mass unrest and destruction.
  2. Deep societal fissures exacerbates the problem, lack of trust and creating a hotbed for mob violence.[7]
• Misguided Youth and Unemployment:
  1. A huge fraction of youth left unemployment would make their minds susceptible to misguidance by vested interests and brainwashing through various ideologies.[8]
  2. Poor implementation of laws to protect vulnerable groups from mobs and ineffective law enforcement by government machineries further compounds the issue.
• Inefficient Investigation:
  1. Insignificant law enforcementand ineffective investigation procedures that does not reach logical conclusions allow hate crimes to escalate.
  2. The anonymity of social media platforms, fake identities of users in such platforms aggravate the spread of information, misinformation, and propaganda, targeted campaigns often leading to violence, societal unrest.
• Communal and Caste Biases:
  1. Mob lynching is often driven by biases based on caste, class, and religion.
  2. Exploitation of communal cleavages by the political class can fuel hatred and violence
• Loss of Trust and Fear:
  1. Mob lynching undermines diversity and fraternity, eroding trust among people, especially marginalized groups. This situations arises due to non-acceptance of various views of society. [9]
  2. It disrupts peace, harmony, and creates an atmosphere of fear

Situations Before Enactment of BNS, 2023 to Prosecute Mob Lynching

This section would consist of brief descriptions of several scenarios of mob lynching that have been referred from judgements delivered by various courts of the country.

As the provision of BNS, 2023 can be invoked for filing cases to punish the act of mob lynching, that was certainly a shortcoming in the IPC, 1860. The IPC had provisions for murder, murder attempt, rioting, rioting with the possession of lethal weapons, mischief, these acts were individually punished under provisions of IPC, 1860 under sections 302, 307, 147, 148, 427 respectively. These provisions are invoked as a result of an unlawful assembly defined in S-146, IPC, 1860. In certain cases Arms Act, 1959 was also invoked due to possession of weapons by the offender.[10]

For an incident of mob lynching, the people involved would be individually booked for crime committed in their personal capacity. Only by looking at various chargesheets, one can come to the conclusion of the joint act of accused persons. This makes the process of prosecuting a case of mob lynching a laborious, tedious, mentally taxing task.[11] There is a possibility of co-accused persons escaping the wrath of law by not having sufficient evidence despite having played a significant role in causing the offence. This is evident in the case of practices of exorcism. The practitioners of exorcism would involve the main practitioner and assistants. The assistants follow the instructions of their boss, that could lead to murder of a person. In such practices, every person would have different role but it cumulatively amounts to murder. [12] This would release the subordinates of practitioner from the jaws of law. The new provision would not spare anyone in involved in the act.

The marginalized groups have been at the receiving end of such attacks. This has not a spared a poor families, mentally retarded person. Lack of societal support, lack of access to justice has become a facilitator to commit the crime. SC/ST groups are victims of such attacks. This case gets amalgamated with the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 making it stringent to not escape the law for commission of offence.[13]

In the case of child abuse too mob lynching has been witnessed. The mother of a girl child had raised her voice to prevent her daughter from being abused. In good faith, people came forward to rescue the girl, the abuser too was beaten up as a consequence. This is a case where abuser has to be punished but at the heat of the moment, he could have been killed within the crowd.[14] Unintentionally, people acting in good faith would be booked by the police.

Section 391 of IPC, 1860 defines dacoity. The moment dacoits are confronted by anyone, violent situations would arise as a sequence of events. This would be hurting each other, eventually murders could also take place. Such a situation would be booked under dacoity only for robbery but under section 392, IPC, 1860. The dacoits would be individually booked under provisions of murder i.e, S-302, IPC, 1860, some would escape the severe consequence by not directly involving in the act of murder. [15]

There has been instances of not vacating the house that was taken on rent. Instead of choosing the lawful means by filing a suit in the court, the owner of the house along with other family members killed the tenant who refused to vacate that house along with his family members. [16]

Mob lynching is a gruesome act that involves murder, so it needs to be proved beyond reasonable doubt. An eye witness who had not witnessed the act of a mob lynching another person but witnessed only the act preceding the lynching was considered to be an important witness by the court as he was also once chased by the mob. Though the act was not witnessed but the mere possibility of the murder was considered strongly by the court in corroboration with other evidences that could establish the act of mob lynching. The court had also accordingly convicted under section-302 of the IPC.[17]

Residents of a village were involved in assaulting a person who was alleged to kill a child. The police had to intervene and rescued the alleged murderer from mob lynching upon requesting the villagers. As police had arrived in time, he was further interrogated and the investigation was furthered. Such incidents would generate mob mentality, pushing such people to perform activities that unlawful in nature.[18]

In the present times, there are certain sections of society who strongly believe in their identity such as caste, religion, class, community. There have been instances by such sections of society involving in murders of those people who did not belong to their own community and proposed to have a relationship with someone of their community. Such incidents are well-planned murders by the other members of the community who might not be the blood relatives. [19]

The state machinery has also been on the receiving end of mob lynching and became a victim. Such incidents occur while protesting against the state with regard to a legislation, policy decision etc. The agitation against the state takes a serious form that involves revolting to disturb the peace, harm the personnel employed by the state.

For displaying a protest against state shall not invite S-124A, IPC, 1860 but the violent situation leading to murder of state personnel by a mob shall be taken seriously. Invoking the provisions of murder instead of sedition establishes equality between state personnel and non-state personnel.

The protests against the Citizenship (Amendment) Act, 2019 took a violent turn in various parts of India. There were road blocks observed in various states. Police personnel were deployed to control the situation on the ground for maintain public order. The outrage by public was huge enough to outpower the police and led to the murder of a policeman. [20]

The state of Jammu & Kashmir had suffered under tensed situations due to poor enforcement of law across the state. Repeated terrorist attacks and they were also aided and furthered by some people living in the state. Here, a person had attempted lynching a Deputy Superintendent of Police, Jammu & Kashmir Police in public along with other goons in the past. He was under preventive detention by invoking the National Security Act, 1980. This was challenged by the detainee, the court had placed emphasis upon the former incident of lynching of the Deputy Superintendent of Police and other murders committed by him, dismissed the petition on account of being devoid of any merit.[21]

Cow vigilantism has also drastically increased post-2015. This has also led to several mobs lynching people who were suspected to be cattle lifters. This has been a significant incident in various states of the country. There also been noted incidents of cattle trafficking in the eastern borders of the country, where such mob lynchings have been witnessed by the people. [22]

There have been attempts to stifle the voice of those people who were trying to pressurise the state to book the cases of mob lynching.

In the State of Maharashtra, a mob in Palghar district had attacked two Hindu Monks in the presence of public. This incident was not booked by police promptly despite them being witness to the incident, that could have been backed by the higher authorities. The media had run a campaign for the purpose of booking the mob for committing the offence of assaulting the Monks. The attempt of running the campaign was also being attempted to be stifled by filing a suit by bringing it under the provisions of hate speech.[23]

Steps Taken to Counter Mob Lynching and Provide Relief

• Government of Assam announced compensation scheme for the victims of have suffered violence.[24]
• PIL filed to release a movie in theatres as the release was attempted to thwart by fringe groups. Supreme Court had issued directions to authorities to book people under the relevant law of the state for destruction of public property. The court had given directions to uphold Articles – 19(1)(a) and 21 in the larger interest of the society.[25]
• In 2018, Supreme Court had passed a slew of directions to provide “preventive, remedial and punitive measures” to deal with offences like mob violence and cow vigilantism. Preventive measure involved dispersing mobs under S-129, CrPC, filing FIRs under S-153A, IPC, 1860. Remedial measures to create fast track courts, provide free legal aid. Punitive measures such as taking actions those government officials who are not complying with the preventive and remedial measures. [26]
• Government of Bihar announced a mob violence victim compensation scheme.[27]

Conclusion

As the previous section has several scenarios of mob lynching in various parts of the country for different reasons. The common thread among all the cases was observed to be the consensus of the majority of the people in that spot who were opposed to the person who was perceived to have committed the crime. In some cases, provisions of other legislations was also invoked. In IPC, 1860 various provisions were chosen to book the accused person. The court has to deal with several chargesheets to pronounce a judgement in the case of mob lynching. Such chargesheets are clubbed and the judge understands the offence has been committed by a group of people. They could be brought under unlawful assembly for better clarity.

In Section-103(2) of the BNS, 2023 the entire group which has been involved in such lynching would be booked. Here, the offence has been accurately targeted by the law. The composition of the group involved has been defined.  The offence has been recognized, so the punishment is also defined and that gives a better understanding of a person who has involved in committing an offence as a part of a larger group. Also, this provision gives an introduction to understand the contemporary offence that was largely debated by civil society in the past.

Author: S Subramaniam, a student at Rajiv Gandhi School of Intellectual Property Law, IIT, Kharagpur, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

“The law cannot be tested on the anvil of majoritarian morality but on constitutional morality”[28]

[1] Savitri Devi vs State of Haryana, 2013 SCC OnLine P&H 12158

[2] Moses Wilson vs Kasturiba, 2007 SCC OnLine SC 1160

[3] IJCRT2303239.pdf

[4] Ida B. Wells (2013). “Crusade for Justice: The Autobiography of Ida B. Wells”, p.52, University of Chicago    Press

[5] NCRB stopped collecting data on lynching, hate crime as it was ‘unreliable’, govt tells LS (theprint.in)

[6] NCRB plans to record detailed data on lynchings, maintain statistics – Oneindia News

[7] Asirkhae Abrarkae Pathan vs State of Maharashtra, 2021 SCC OnLine Bom 12130

[8] Ketan K Tirodkar vs Central Bureau of Investigation, 2018 SCC OnLine Bom 21432

[9] Navtej Singh Johar vs Union of India, (2018) 1 SCC 791

[10] Savitri Devi vs State of Haryana, 2013 SCC OnLine P&H 12158

[11] Ketan K Tirodkar vs Central Bureau of Investigation, 2018 SCC OnLine Bom 21432

[12] Satya Narain @ Satpal vs State of Rajasthan ,2000 SCC OnLine Raj 768 : (2001) 1 RLW 64 : (2000) 4 WLC 24 : 2000 Cri LR (Raj) 574

[13] Attappady Madhu mob lynching: 14 out of 16 accused held guilty | Manorama English (onmanorama.com)

[14] Girish Chandra Sharma vs State of Bihar, 2015 SCC OnLine Pat 5151

[15] Arun Thakur vs State of Jharkhand, SCC OnLine Jhar 1164

[16] Mohd. Mohsin vs Dist.Judge, Meerut 2007 SCC OnLine All 692

[17] Balwant Singh vs State of Uttaranchal, 2012 SCC OnLine Utt 3340

[18] Tuklal Saw vs State of Jharkhand, 2023 SCC OnLine Jhar 3138

[19] Lata Singh vs State of Uttar Pradesh, (2006) 5 SCC 475

[20] Sadiq vs State of National Capital Territory of Delhi, 2022 SCC OnLine Del 4343

[21] Imran Nabi Wani vs State of Jammu & Kashmir, 2023 SCC OnLine J&K 496

[22] Gagan Debbarma vs State of Tripura, 2021 SCC OnLine Tri 513

[23] Arnab Ranjan Goswami vs Union of India,

[24] Victim Compensatin | Assam State Legal Services Authority | Government Of Assam, India

[25] Kodungallur Film Society vs Union of India, (2018) 10 SCC 713

[26] Tehseen Poonawalla vs Union of India, (2018) 9 SCC 501

[27] Vide Notification No. L.G.-06-05/2018/7722/J, dated 17-9-2018, published in the Gazette

of Bihar, Extra., No. 854, dated 18-9-2018.

[28] Navtej Singh Johar vs Union of India, (2018) 1 SCC 791