In July last year, the Supreme Court recommended that the parliament should enact a special law to deal with cases of mob lynching. The court passed a detailed judgment in Tehseen Poonawalla vs Union of India, issuing directions on the preventive, remedial and punitive measures to be adopted by the central and the state governments. The judgment also recommended that the special law by parliament should “create a separate offence for lynching” and impose “adequate punishment for the same.” Yet, the home ministry has consistently stated in parliament that only state governments have jurisdiction over matters involving the police and public order—effectively washing its hands of the responsibility.
Since 2012, India has witnessed 133 cases of mob lynching, according to a database of lynching incidents prepared by the data-journalism portal India Spend. Of the total 340 victims, 50 people lost their lives. The data further revealed that 57 percent of the victims were Muslims, and nine percent were from the Dalit community. Yet, as per the home ministry, the National Crime Records Bureau does not record this data. Its parliamentary responses indicate that the ministry has treated mob lynching as a state-level law-and-order concern, and not a matter of “exigency” that threatens the country’s “secular ethos” and “pluralistic social fabric,” as observed by the Supreme Court.
Sagar, a staff writer at The Caravan, spoke to Mohammed Asad Hayat, a Prayagraj-based criminal lawyer who is representing victims in at least fifty cases of mob lynching and other hate crimes. Hayat reflected on his experience in litigating these cases, including that of Pehlu Khan and Rakbar Khan—both were killed by mobs in Rajasthan’s Alwar district in 2017 and 2018, respectively—the challenges he faced, and how a special law could address those issues. In September 2018, when Hayat was accompanying witnesses in Pehlu Khan’s case to court for their testimonies, some unknown gunmen fired upon them. By this point, Hayat said, he has gotten used to the intimidation. He shrugged off any fear of threats, noting, “Vakeel toh apna kaam karega na”—A lawyer has to do his work, right.
Sagar: Why do you think there is a need for a special law to deal with the rising cases of mob lynching? How would it help prosecutors in securing justice for the victims?
Mohammed Asad Hayat: We need a special law so that mob lynching is defined as a separate offence. For instance, they [legislators] distinguished between rape and gang rape and made a separate law to define gang rape. Section 376D was added [to the Indian Penal Code, in 2013] and a [minimum] punishment of 20 years of jail term was legislated for it. Now, whether a person makes a penetrative assault or not—even if he is an accomplice, meaning even if he is standing there and watching the act—he would be charged for rape.
In a similar manner, presently, an offence committed by a mob is defined under Sections 147, 148 and 149 of the Indian Penal Code [which deal with the offences of rioting, rioting with a deadly weapon, and collective culpability for unlawful assembly, respectively]. What they [police] had been generally doing so far is to register an FIR under Section 302 [for murder] along with Sections 147, 148, and 149 of the IPC.