‘Law may not be able to make a man love me but it can keep the man from lynching me.’
These are the words of Martin Luther King Jr from an era when the racial segregation was at its peak and the African Americans were targeted by lynch mobs. The lynching of the marginalized African Americans mirrored the fissures in American society. However, these words resonate strongly in the present-day India where lynching the Muslims, Dalits and other communities in the margins is the new “normal”. Innocent citizens are targeted by mobs driven by an ideology that subscribes to hatred for the “other” thus wanting to dehumanize and demonize the “other”. Fear of the “other” is instilled within the community through clever propaganda using social media and the traditional media. Passions, fear and hatred of the mobs are incited through emotive issues like cow protection; friendship between a man and a woman belonging to different religions and stigmatized as “love jihad”. These, ironically, are also the litmus test for nationalism. According to the data compiled by the Ministry of Home Affairs, 45 people were killed in 40 cases of mob lynching across nine states between 2014 and 3 March 2018.
The extent of this violence can be gauged from the numbers obtained by Centre for Study of Society and Secularism (CSSS). CSSS has been monitoring three newspapers – the Mumbai editions of The Hindu, Times of India and The Indian Express. Based on the reports in these newspapers, the CSSS has found that from January 2014 to 31 July 2018, 109 mob attacks have taken place in India. These 109 incidents include cow-related vigilantism, “love jihad” vigilantism, vigilantism around the rumours of child-lifting, violence related to identity markers like skull caps, and people being forced to chant Hindu supremacist slogans. Out of the 109 incidents, 22 incidents took place in Maharashtra, followed by Uttar Pradesh (19) and Jharkhand (10). All the three states are ruled by the Bharatiya Janata Party (BJP).
These 109 incidents left 78 dead and 174 injured. Out of the 78 people killed, 32 are Muslims, 21 Hindus, 6 are Dalits (SCs), 2 STs and 17, whose community hasn’t been specified. Similarly, out of the 174 injured people, 64 were Muslims, 42 Dalits, 21 Hindus, 6 Adivasis and 41 whose community hasn’t been specified. These figures show that most of the people targeted by the lynch mobs were Muslims and Dalits.
CSSS has recorded a steady increase in the incidents of mob lynching since 2014. Prime Minister Narendra Modi’s mild disapproval of mob-lynchings has not had any effect on those indulging in it. The disapproval was not followed up with adequate action mandated by law against the participants, particularly, in the BJP-ruled states.
This is an alarming trend and shows the increasing impunity that the vigilante groups enjoy. Not surprisingly, 82 out of the 109 incidents have taken place in BJP-ruled states, 9 under the Samajwadi Party rule, 5 under Congress rule and 4 under Trinamool Congress rule.
Thirty-nine of the 109 incidents are related to rumours of child-lifting, 39 to cow-related vigilantism and 14 to alleged inter-religious male-female friendship/relationship.
Approximately 42 per cent of mob attacks have been attributed to cow vigilantism and rumours of child-lifting. Other reasons include rumours or suspicions of theft, refusal to chant Hindu supremacist slogans.
The Supreme Court judgment
In response to this trend, the Supreme Court recently passed a judgment in the case “Tehseen S. Poonawalla vs Union of India” on 17 July 2018. The judgment condemns the lynchings and lays down certain mechanisms to prevent and punish such acts. The judgment emphasizes preventive, remedial and punitive measures. The judgment is timely and important for two reasons. First, it unequivocally condemns this trend of spiralling violence and explains how it is unconstitutional, undermines democratic institutions and poses a threat to pluralism. Second, the judgment lays down a mechanism to deal with mob lynchings. It, however, does not address some issues, which we will discuss later.
At the very outset, the judgment reaffirms the supremacy of law in a civilized society. It critiques the role of the self-proclaimed protectors of laws who take the law in their hands and dispense “justice” to victims they assume have committed a crime. The judgment points to the seminal principle in law that a person is entitled to be treated as innocent till found guilty after a fair trial. No person, group of people or community can deny a fair trial to an accused person.
The senior counsel for the petitioner in the case, Indira Jaisingh, expressed concern that the lynch mobs are targeting citizens belonging to minority communities and the lower strata of the society, adding that the state/central government must take steps to ensure such incidents are prevented. The judgment reiterates that it is the duty of the State to prevent communal violence. It says the State should enquire into the causes of communal unrest and strengthen the fabric of society. The judgment says that vigilantism cannot be tolerated in any form, adding that lynchings undermine legal institutions laid down by the Constitution. Lynchings are hate crimes that result from the intolerance, ideological domination and prejudice. The judgment makes it clear that any form of vigilantism, including cow vigilantism, should not take place in the country because it goes against the very grain of law.
The judgment makes a crucial point about the desirability of diversity and pluralism and states that vigilantism is a threat to pluralism. In a political discourse which is so divisive and intends at polarizing the populace by hate-mongering, this judgment reaffirms the saliency of diversity and tolerance and calls them the building blocks of a democratic society. It goes on to note that in a constitutional democracy the right to life and liberty is paramount. It reminds the State that it has a positive obligation to protect the fundamental rights of all individuals irrespective of race, caste, class and religion. The State, it adds, has the primary responsibility to foster a secular, pluralistic and multi-culturalistic social order to allow the free play of ideas and beliefs and co-existence of mutually contradictory perspectives. Making a distinction between lynching and other ordinary crimes, the judgment points out that the dominant intent and actual result of lynchings is twofold: one to usurp the authority of administering justice according to the law of the land and second to deprive the citizens of the rights mentioned in the Constitution.
Critique of the judgement
This brings us to the critique of the judgment based on the how mob-lynchings takes place. The judgment speaks about the lofty ideals of pluralism and lays down the onus of protecting the citizens’ fundamental rights on the State irrespective of the caste, class and religion of the citizens. However, the judgment stops short of noting that the mob lynchings are organized crimes patronized by leaders of the ruling regime. It does not recognize that the political ideology of the ruling party provides justification for mob-lynching. This is obvious from the statements of the elected constitutional functionaries and the consequent negligent police action or rather inaction. While some political functionaries play down the seriousness of the offence, others justify it. Sometime ago, Union Minister Jayant Sinha garlanded eight people convicted of lynching Alimuddin Ansari in Jharkhand. On 29 June 2017, these men killed Ansari after accusing him of cow slaughter. Another union minister, Arjun Ram Meghwal, stated that lynchings will continue with the rise in the popularity of Prime Minister Narendra Modi and hinted at a conspiracy to defame the BJP. He was reacting to the lynching of a Muslim man in Alwar. Justifying cow vigilantism, BJP leader Gyan Dev Ahuja said, “Cow slaughter is a bigger crime than terrorism. Terrorists kill two to three people, but when a cow is killed, sentiments of crores of Hindus get hurt .”
These statements make it amply clear that the government is not serious about stopping the lynchings. Lynching enjoys political patronage and impunity and thus thrives. This aspect is not addressed by the judgment. Lynchings are not isolated cases but manifestations of a political ideology and a discourse that is aggressively planted in the social consciousness. Lynchings are justified by creating hatred and distrust around symbols like the cow against marginalized communities. This hatred is normalized when the state machinery and people’s representatives give it legitimacy by taking no action. The judgment should have clarified that all those who provide any justification for mob lynching, in effect, abet the crime and should be tried for abetment of the offence. Those who produce alarming videos and fake news to arouse anxieties of ordinary people, which then leads to mob lynching; those who circulate these videos and messages in social media; and those who eventually are involved in the lynching, share the same intent. Thus, each of these groups of people is guilty of the offence and must be tried.
It is imperative to bring the political leadership under the purview of any law to effectively monitor the role of police in these lynchings. The police have been appalling in their response. In many cases the police are seen colluding with the mob. Thus they either take no action to protect the victims or blatantly help the mob to perpetuate violence. While it is no secret that police have their own bias, the problem is compounded by the ideology of the political leadership. Police follow the diktats of their political bosses. Though the judgment directs the government to appoint a nodal officer in each district with the mandate to prevent mob lynchings, the police can be impartial only if they are not under the influence of the political leadership and are aware that there will be consequences to any partiality or bias resulting in failure to carry out their duties.
The objective of the judgment to prevent lynchings, penalize the culprits and arresting this ghastly trend will not be achieved with the above-mentioned lapses and lacunae in the judgment. They are too fundamental to be ignored. Mob lynchings are demonizing Muslims and Dalits, and tearing apart the social fabric of the country in monstrous proportions. Not only will they weaken the social harmony of the country but also undermine democratic and constitutional institutions which safeguard the lives and liberties of the citizens and prevent us from spiralling down into a barbaric society. Mob lynching is not merely a problem of law and order but a heinous political tool to exclude and marginalize vulnerable communities. This politics of hatred must be countered and the hope is that this judgment of the Supreme Court will prove instrumental in achieving this end.
 Surprisingly, CSSS has lumped the savarnas and OBCs together as Hindus, while counting the Dalits separately. That is why these figures do not present a comprehensive picture of the tensions and inner contradictions in Indian society. If we study the assaults by the so-called Gau Rakshaks, at many places, those killed included Hindu farmers and cattle-rearers who come from the Other Backward Classes (OBC), whereas the perpetrators are associated with organizations representing the interests of dwij Hindus. While the article rightly raises questions on the motives of the government and the shortcomings in the Supreme Court’s decision, by treating Hindus as a monolithic community, it fails to expose the culpability of the dwij community. – Managing Editor
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