I worry that, if allowed to go unchecked, lynching could become a national epidemic. More and more people feel emboldened to join or incite mobs. There is an enabling climate for hate speech and violence that is fostered by a majoritarian social climate.
One possible solution is a new law against lynching. How much could such a law do to protect the groups that get targeted?
Though lynching is not officially a crime in India, the Indian Penal Code punishes all the offences that lynch mobs normally perpetrate. Section 223(a) of the Code of Criminal Procedure also enables a group of people involved in the same offence to be tried together.
India already has some laws dealing with forms of hate violence. The Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act recognizes the particular nature of the attacks that targets Dalits and tribal people, and it creates fitting new crimes and higher punishments. But there have been very low rates of conviction under this law: data by the National Coalition for Strengthening SC/ST act indicates that, from 1995 to 2007, the conviction rate was only 4.6%. There is little reason to believe that the experience of a special lynching law would be different.
India’s anti-terror laws also deal with many acts that are hate crimes. The innovation of laws such as Prevention of Terrorism Act, 2002 was to take away some of the normal rights of accused persons, such as by allowing pre-trial detention for 180 days and by admitting confessions to police officers as evidence.
This is not a course I would recommend. We have seen that such laws enable monumental injustice to innocent accused Dalits, religious minorities, and tribal people, with recent reports of numerous men tortured and jailed for as long as 23 years before they are found innocent. Admitting confessions made to police officers is a particularly harmful policy: even colonial governments recognised that it encourages torture. I fear that that such enhanced power in a criminal justice system driven by majoritarian bias would tend to work against the most vulnerable people.
In the past, I have advocated for a different legal approach to dealing with hate. From 2010 to 2012, when I was a member of India’s National Advisory Council, I helped propose the Communal and Targeted Violence Bill. This law, never passed by the UPA government, would have created new crimes for public officials who fail to prevent or control targeted mass communal violence, or obstruct the process of justice subsequently.
There is a systematic pattern by which the criminal justice system is subverted during cases of both mass communal violence and individual hate crimes. This was confirmed by On Their Watch, a report published in 2014 by the Centre for Equity Studies (CES), of which I am the director. The report carefully studied four of the largest post-Independence communal massacres: Nellie 1983, Delhi 1984, Bhagalpur 1989 and Gujarat 2002. We found that in 42% of FIRs in Nellie, 35% in Bhagalpur, and 76% in Gujarat, officials didn’t record the names of the accused even when the victims knew them. We also found that some police filed charges against victims to bully them into compromising and deliberately weakened investigations, while certain prosecutors acted in a partisan manner.
Authorities have specifically ensured that most perpetrators of communal and caste violence are never punished. In each of the four instances of mass communal violence the CES studied, very few of those guilty were penalised. Most cases were closed without even a trial. Nellie is the most extreme example: not a single accused has faced trial, let alone been convicted.
All of these tendencies combined with the judiciary’s upper-caste bias lead to impunity for some who commit communal hate crimes.
As a result, the centrepiece of the NAC draft of the Communal and Targeted Violence Bill was the creation of a new crime of ‘dereliction of duty by public officials’ punishable with up to five years’ imprisonment. The law also included ‘command responsibility’, a provision that the officials on the ground and the ones who commanded them are both liable for criminal dereliction. As such, our proposal would have made criminally culpable senior political or administrative authorities who direct officials not to act when hate attacks occur, or to act with bias. The bill was bitterly attacked by the BJP, which claimed that it was pro-minority, and the UPA never mustered the political will to steer it through Parliament.
The mounting scourge of targeted hate crimes by lynch mobs does require the creation of a similar crime of dereliction of duty by public officials. This, and not simply enhancing punishments or creating a new crime of lynching, would actually ensure that public officials act firmly and fairly against hate crimes, and not with majoritarian prejudice.
But no law, new or old, will in itself guarantee an end to this mass affliction of lynching, which, if unchecked, could tear apart the fraternity of the country. The challenge ultimately is one not of law but of our collective humanity. What is it that goads us to join or incite lynch mobs, or to turn our faces away when people are targeted by hate attacks, or to regard these attacks as inevitable, even righteous?
Lynchings are becoming normalised. They barely linger in the public memory. An idealistic young friend, Abdul Kalam Azad, anguished at public indifference to the rising number of lynchings, asks in a recent article he wrote for the Citizen, “Has fear lynched my conscience?”
As the violence spreads, many more Indians must start asking themselves: “Has hate lynched my conscience?”
Harsh Mander is author, Looking Away: Inequality, Prejudice and Indifference in New India
Email id: [email protected]