Anti-lynching law will treat silent spectators as accomplices: Pehlu Khan’s lawyer Asad Hayat

Shahid Tantray for The Caravan
13 August, 2019

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.

S: Could you elaborate on how a separate legal definition, for mob lynching, would help?
MAH: You [legislators] define mob lynching as an offence, and make a separate punishment for it. That should be then read with Section 302 of the IPC, because a murder is a murder whether committed by an individual or a mob. But the special act will expand the dimension of murder. Suppose a sentence of five years is legislated for being a part of the mob, and you will have life sentence for a murder charge. What will happen then is that if a person is a part of a lynch mob, he or she cannot get away by saying, “I was only a spectator, I was not doing anything at all.” So, whether a punishment of five years or ten years sentence is decided [for being a part of mob], the trial will be held for both charges—for being a part of a lynch mob and for murder or assault. I’m saying that a silent spectator in a mob lynching case should also be treated as an accomplice to an offence of murder.

S: Do you think a special law would speed-up the completion of trials in cases of mob lynching?
MAH: The Supreme Court judgment in the Tehseen Poonawala vs Union of India case, it said that the trial should be concluded within six months. In that, they also discussed the Akhlaq lynching case [Mohammad Akhlaq was hauled out of his home in Uttar Pradesh’s Dadri village and beaten to death by a mob, which included members of radical Hindu groups, in September 2015]. But look at the Uttar Pradesh government’s attitude so far. We went to the local court in Dadri several times and filed petition to speed-up the process, argued to implement the SC direction. But till this day, they have not framed charges against the accused. So, the accused side has been able to stay out. And the state remains unfazed. The government prosecutor remains unfazed, pushing the dates for another three–four months on every hearing.

You see what a bogus investigation was done in Pehlu Khan’s case. [All six persons accused in the case are out on bail.] One of the accused made an extrajudicial confession on NDTV, “Yes, I beat up Pehlu and his son for one-and-a-half hours.” But did anyone [from the police] do anything at all? These things have to do with one’s integrity. You can make the law and put it in the books, but if integrity is missing then nothing is of any use. How do we correct police’s integrity is what should be talked too.

S: What legal measures could be taken to address this issue of the integrity of the investigating agencies or the police in mob-lynching cases?
MAH: In the Tehseen Poonawala case, the Supreme Court said that if a police officer or officer of the district administration failed to comply with their direction to investigate and facilitate an expeditious trial of a mob-lynching case, it should be considered as “an act of deliberate negligence” and appropriate action should be taken against him or her—not limited to departmental action. So, until we have this kind of attitude, there is not going to be any improvement. After all, why are you conducting such a botched investigation due to which accused are being let off?

S: What other legal impediments have you faced while trying to secure convictions?
MAH: There is one that the recovery [of weapons] by the police after the arrest of accused, in such cases, is not done honestly. Whoever is arrested would say, “I threw or hid the weapon,” and still the police make no effort to recover it. They messed up with the recovery in Junaid’s case. [On 22 June 2018, Junaid Khan, a 16-year-old resident of Haryana’s Faridabad district, was stabbed to death in a train compartment—the police had not seized any weapons in the days following the incident.] Recovery is a very important part of a trial.

And whenever they happen to seize the weapon, they will not produce it before the court in the trial. For instance, in the Pehlu Khan case, the stick that was used in beating up Khan—[the police] made it disappear. They said the stick was there, deposited in the malkhana [a room in police stations that stores seized articles, including arms and ammunition]—it’s written in the malkhana’s register. So, the court said, “Okay, bring it.” Then [the police] said they were searching; it was not found.

Secondly, [the police] do not record victims’ or witnesses’ statements appropriately. In Junaid’s case, the perpetrators did not let the victims deboard at Ballabhgarh [railway] station, and also pulled in one of the brothers who came to rescue [Junaid]. Now, the investigating officer did not mention this entire scuffle in the court. He only mentioned the things that happened inside the train. The sequence of events, related to the struggle of the victims trying to deboard to escape the stabbing and being pulled in by the mob, was missing from the investigating officer’s report. They did not record this part of the incident from the witnesses’ accounts in their statements either. Now, if the investigating officer had recorded the witnesses’ statement in entirety, the common motive of the mob to kill Junaid could have been proved. [Section 34 of the Indian Penal Code provides that a criminal act carried out by several persons in furtherance of a common intention would make each person liable for the offence as if they had done it alone.] So the court released them on bail. The bail was given on the ground that their motive was not common. It was observed that they had their own individual motives on the spot, but not a common one of murder.

S: Do you believe mob lynching has evolved as a premeditated crime in the last five years?
MAH: Yes, mob lynching is a premeditated crime because this mob doesn’t appear from out of nowhere just like that. There are a group of small people who actually mastermind such conspiracy. They have a political agenda and then they mobilise people behind it. They make calls, provoke people on the spot [where the lynching takes place,] which is why I believe it’s a premeditated crime.

S: Are you referring to the involvement of members of Hindu right-wing groups, such as the Bajrang Dal and the Vishwa Hindu Parishad, in the lynching incidents?
MAH: Yes. In Rakbar Khan’s case, they have not yet filed a chargesheet against that Nawal Kishore. [Kishore heads the Vishwa Hindu Parishad’s gau raksha—cow protection—cell in Ramgarh. He claimed he witnessed Rakbar’s lynching and had informed the police about the incident.] Why didn’t they? Is he a relative of the police? You have a man who is yelling on TV that the police beat up Rakbar Khan in front of his eyes, but you are not filing a chargesheet against him? Toh yeh sab badmashiyan jo ho rahin hain na, inn sab ko ujagar karna hai. [All this mischief that is being committed needs to be exposed.]

S: Do you think cattle-protection laws have made cattle owners vulnerable to mob lynching?
MAH: Absolutely. Now, [cow vigilantes] have gotten a reason to lynch people. For instance, in Pehlu’s case, [Pehlu and his son] had purchased the cattle from Jaipur and had valid documents for it. But the mob forcibly declared that they were taking the cattle to Harayana, while the victims kept telling they were on their way to Rajasthan. All this can be corrected only if a fair investigation is conducted. Or else, to appease them [the mob], they [the police] will continue declaring everyone cattle smugglers.

Second thing is about cruelty. They [the mob and the police] allege that you committed cruelty. In a pickup van, if someone has kept two cows and they are both in standing position, then where is the question of cruelty in this? These things are apparent and visible and need to be stopped.

S: There are videos of various mob-lynching incidents publicly available on the internet. Why do the perpetrators still get released on bail?
MAH: The first thing that comes under Section 65B in the Indian Evidence Act, 1872, [which deals with the admissibility of information contained in an electronic record,] is that you prove that the video has not been tampered. We are facing this problem in Adityanath’s case. [Hayat was one of the advocates arguing a case in which the Uttar Pradesh chief minister, Adityanath, was accused of hate speech in an incident from 2007. A video of the alleged hate speech is available, but the state government refused to give sanction to prosecute Adityanath claiming that the video had been “tampered.”] We had a video of it, very good evidence, but they [the investigating agency] messed up with the forensic report.

Further, loopholes are deliberately left open in the investigations. For instance, [investigating agencies] would instruct the government lawyer not to attach an affidavit [as mandated under Section 65B, to vouch for the authenticity of electronic evidence]. You don’t submit before the court that the evidence was un-doctored. Then, the court will point out to the prosecutor: “You have not said that the evidence was free of tampering. Why would we accept it as evidence?” So these are technicalities. An activist will not understand these. There is a need for a panel of expert lawyers who are committed to get justice to the victims of mob lynching.

S: Despite the videos, the police also often register first information reports against unknown persons instead of the people identifiable in the videos. How can this be corrected legally?
MAH: I would like to give an elaborate answer to this. When an FIR is registered against unknown persons, it is mandatory for an investigating officer to conduct a TIP of the accused within 30 days of his or her arrest [A test identification parade is a legal procedure in which witnesses and victims are asked to identify an offender from a line-up of individuals]. It’s not necessary when the FIR is registered against named accused. But the police do not do a TIP in cases of lynchingor in similar cases of premeditated crime. As a consequence, what happens is that when an accused is produced in court after two–three years [of the lynching incident], the memories [of] witnesses or victims have weakened, and he or she says, “I’m not able to identify.” At that point of time, the accused gets the benefit of doubt. And if there are no other corroborative evidences, such as video, photograph or anything else available at that stage, the case is lost there. On the other hand, if the TIP is not done and the witnesses or victims identify accused in the court, then the law poses a question—how is your memory so strong? Therefore, a TIP is a must.

In Pehlu’s case, they did not conduct a TIP. The witness said I could not see the faces of the mob properly because I was being beaten up. On top of that, the judge allowed ten to 12 other people to stand alongside the accused and then asked the witness to identify the accused. So, we resorted to the photograph and video of the incident to make our point that the accused was the same who was seen in the video. But then, one of the accused had made an extrajudicial confession on NDTV and that should have been produced before the court by the police, but they did not. The Supreme Court has said that if an accused makes an extrajudicial confession, then it becomes admissible evidence. That is enough to secure the conviction. But you [the police] are not conducting a TIP, you are having more people stand in the witness box with the accused, and then you are not filing the extrajudicial confession.

S: What is the current status of the Pehlu Khan case?
MAH: We have completed our final arguments. The judgment is due to be pronounced on 14 August. Who knows what will happen? We will wait for the judgment and see.

This interview has been edited and condensed.