In June this year, a Muslim man named Israr was beaten to death in Saharanpur district of Uttar Pradesh. The police denied that it was a case of 'lynching' and said that another FIR was filed against Israr for attempt to murder.
In another incident, two sadhus were lynched along with their driver in Maharashtra’s Palghar district in April this year.
This is not the first time that incidents of mob lynching have been reported from our country, and unfortunately, it won’t be the last. Mob lynchings continue unabated in India and seem to have become a new normal.
Lynching is an affront to the Rule of law and to the exalted values of the Constitution itself. Lynching by unruly mobs and barbaric violence arising out of instigation cannot be allowed to become the order of the day.
The term Lynch has its origin after the name of a Virginia Planter named Charles Lynch who headed an irregular court, during the American Revolution, formed to punish loyalists.
In majority of the cases, the reason for mob lynchings has been ‘cow slaughter’. The conviction rate in cases of lynching is as low as 16 per cent.
Common Object Under Section 149
There have been various incidents where the accused who were charged under Section 302 read with Section 149 of the Indian Penal Code (IPC) were acquitted. Firstly, if appellate stage court acquits some of the accused charged under Section 302 r/w Section 149 in cases where the total number of accused is less than five, charges under Section 149 will be removed due to non-fulfillment of the criteria of unlawful assembly as has been provided under Section 141 of the IPC, and, therefore, others cannot be convicted under Section 302 until the charges are reframed.
Before convicting any person under Section 149, the prosecution must prove that the accused were a part of the unlawful assembly at the time of the incident. Before the court is convinced that a person was one of the members of the unlawful assembly, it must be overtly shown either from his active participation, or otherwise, that he shared the common object of the assembly. The thing with common object is that it can be developed at the beginning of the assembly or during the course of the incident spot eo instanti and that is the most crucial thought which is very hard to be established in most of the cases.
For the prosecution to prove that there was a common object and the act had been done in furtherance of that common object is difficult in most of the circumstances and that is the reason why a large chunk of cases which include the charge of Section 149 have been disposed of with the acquittal of most or all of the accused.
Another problem is that Section 149 has a possibility to include an innocent man within the process of criminal trial based on the assumption that he was an accomplice and part of the assembly which became unlawful and committed the offence. At first it needs to be seen that whether the person who has been accused and was a part of the assembly was present when the assembly became unlawful. If not, then does that person also share the common object of the assembly when it became unlawful. These questions are hard to answer in cases where there is a shortage of evidence and primarily the case is dependent upon video recordings.
Criminal law runs on the Blackstone's ratio that 'Let hundred guilty be acquitted but not one innocent should be convicted'. It is plausible that some persons are passive witnesses and may have joined the assembly as curious spectators. It is also possible that the assembly may have some miscreants who may go beyond the common object and commit crimes graver than the mob’s objective. It is hard to predict such instances and to rule out the exceptions from the above-mentioned situations.
Common Intention Under Section 34
Section 34 of the Indian Penal Code deals with an offence which is committed by several persons in furtherance of common intention. Under this section, the individuals are charged when they are accused of having a pre-designed intention to commit an act, in this case -- lynching.
Section 34 is not a substantive offence but is a rule of evidence. To attract joint liability under section 34, the act must include criminal act which is done by more than one person and the same is done in furtherance of common intention of all, pre-arranged plan and prior meeting of mind and physical presence of the offenders at the time of commission of crime.
On a posteriori basis, we find that the offence for which the mob will be charged in usual scenario is under Section 302 read with Section 34 -- to kill someone with intention and knowledge is a murder -- and so the criminal will face punishment under section 302, but because there are number of criminals we apply sec 34 or sec 149 read with sec 302 to hold them liable for the crime they committed.
But unfortunately, there are some difficulties which arise during the practical applications of this provision.
In elaborating the meaning of ‘common intention’, the court in the case of Mahboob Shah v. Emperorobserved that ‘common intention’ implies the pre-arranged plan or prior meeting of minds or prior consultation between all the persons constituting the group. Is it really possible to prove the prior meeting of every person involved in mob lynching? The answer is No.
In the case of Palghar lynching, it is impossible to prove the prior meeting of around 110 people even the moment before the crime was committed.
There has been a common understanding of the court that the offender must be physically present and should actually participate in the commission of the offence in some way or other at the time when the crime is being committed. Do we really think that this part of Section 34 can be fulfilled when it comes to mob lynching? Sadly, no. The reason being that perpetrators in mob lynching are not the only ones who are causing physical injuries to the victim or victims. There are many who sit at the comfort of their homes forwarding messages on social media platforms and mobilising crowds at the crime scene. They also have the same intention as those who are actually present at the crime scene. Though it's difficult to trace them, even if we do, can we hold them liable under the joint liability of Section 34? No, because the interpretations of this Section itself provide a defense to those perpetrators.
Besides, bystander apathy, mute spectators at the scene of the crime, inertia of the law enforcing machinery to prevent such crimes, and grandstanding of the incident by the perpetrators of the crimes aggravates the entire problem. One must constantly remind oneself that an attitude of morbid intolerance is intolerable and painful.
Crime knows no religion and neither the perpetrator nor the victim can be viewed through the lens of race, caste, class or religion.
Footmarks to be followed
Private Member Bills of Mr. Shashi Tharoor and of Advocate KTS Tulsi were introduced in Lok Sabha and Rajya Sabha, respectively, to make a special law on lynching. Where the former's was denied to be tabled by the then Speaker Sumitra Mahajan, on the ground that Law and Order is a matter of State Governments, latter's one was tabled in the Upper House where he compared lynching with terrorism and contended that as there is a separate law to deal with terrorism, there needs a separate law to deal with lynching as well.
A writ apetition was filed by activist Tehseen Poonawala in the Supreme Court seeking court’s intervention in increasing cases of mob violence. During the hearing, the top court directed states to take preventive measures in cases of mob incidents. Till date there are only a few states like Rajasthan, Manipur among others, who have executed the directions of the Supreme Court. The apex court has listed numerous directions which need to be implemented under the heads of Preventive, Punitive and Remedial measures.
The initial draft of Manav Suraksha Kanoon, which formed as a model draft for the states coming up with special laws to deal with the offence of 'lynching', drafted under the aegis of advocate Sanjay Hegde defined 'lynching' as a non-bailable and cognizable offence.
Humanity dies every time an unruly mob kills an innocent person. The punishment which needs to be given for a murder should be in accordance with section 302 of the IPC. Unfortunately, the people with blood on their hands do not get punished for the crime they have committed because of apparent lacunas in Sections 34 and 149 when read with Section 302 of the IPC. What usually happens is that due to the non-fulfillment of the essentials prescribed in these sections, either the offender gets acquitted or made liable to a less severe punishment.
Even if we assume that we pass all these hurdles and somehow prove the offence as murder, the exception (1) provided under sec 300 again acquits them of murder charges.
It means that if a mob killed some person, it will not be called a murder. Sometimes it seems similar to defection that if a single person kills someone, he'll be liable for murder, but if the same crime is committed by a mob, the people be convicted under Section 304. In such a situation, either you will get exonerated or if there are enough evidences, then you'll be charged for culpable homicide not amounting to murder, but the person will not be charged for murder, which is the exact nature of crime.
That's why we need special laws that act as a deterrent for the mob.
(The authors are law students at Aligarh Muslim University. Views expressed are personal.)