The repeated reported incidents of mob lynching in India represent a growing negation of fundamental right to life and liberty encapsulated in Article 21 of the Indian Constitution. This is crucial since the country is in the process of adopting its new criminal laws. On July 1, the new Indian Criminal Law, Bharatiya Nyaya Sanhita (BNS) came into force. For the first time capital punishment has been introduced for the offence of mob lynching, alongside imprisonment of seven years to life. While this change is welcome, this blog shows that the general lack of action and apathy by both the Central and State Governments remains a concern.

Notably, the National Crime Records Bureau (NCRB) has not recorded data on mob lynching since 2017, citing unreliability of data as allegedly mob lynching incidents are being recorded by the police in certain States as brawls or accidents. Alongside police’s apathy, in most incidents political patronage appears to play a role. In 2018, the government when questioned about rising incidents of mob lynching in the Parliament, put the blame on the prevalence of social media and internet in causing such violence. It blamed “unverified fake news” and asked “social media platforms to ensure that proper checks were installed in their platforms”.

A discernible pattern has emerged in these incidents, frequently involving victims from marginalized sections, including minorities and women. The mob’s attitudes are typically fatal, vengeful, and aimed at inflicting harm as a form of punishment for crimes such as ‘cow slaughter’, ‘beef consumption’ and ‘adultery’. Although lynching incidents have sometimes been carried out by one community against another, recent cases show that vulnerable groups, such as daily wage labourers, women and the disabled, are the most affected by this violence. A citizen’s caste, religion, and gender have become significant factors that make them vulnerable to such violence. The state’s response is often limited to providing compensation, with little emphasis is paced on ensuring security, scrutiny or other preventative action.

The Supreme court had addressed the rising issue of mob violence in the Tehseen Poonawalla judgment. Amidst a concerning trend of targeted attacks on minorities and marginalized groups, often justified by unproven allegations, the court condemned mob violence. It emphasized the State’s duty to prevent such incidents and to take strict action against perpetrators. State governments were instructed to appoint senior police officers as Nodal Officers in each district to form special task forces, and identify high-risk areas (para 40). Both state and central governments were directed to curb inflammatory content on social media. The Court mandated the immediate filing of FIRs and noted that thorough investigations were required, with victim compensation schemes to be promptly established. Lastly, disciplinary action was mandated for officials who failed to prevent or address such incidents.

More recently, the National Federation of Indian Women filed a public interest litigation noting the increase in incidents of lynching and mob violence targeting Muslims for cow slaughter, especially by groups self-identifying as ‘cow vigilantes’. The Apex Court observed that most State Governments and Union Territories had not yet filed affidavits about instances of mob lynching despite being asked to.

Post the Tehseen Poonawalla judgment, some state governments have enacted separate laws against mob-lynching. Parallel to the central criminal law, state laws might be useful to address gaps such as targeting grass-root problems such as lack of real time intelligence reports by making specific laws compelling the police to “procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news” or the police personnel to be “extra cautious if any instance of mob violence within their jurisdiction comes to their notice” or disperse mobs which might “wreak the havoc of lynching in the disguise of vigilantism or otherwise”. Manipur was the first state to pass a law against lynching. A bill on mob lynching has been passed by Rajasthan and West Bengal. Still, hurdles remain.

In light of rise in instances of lynching, West Bengal (Prevention of Lynching) Bill, 2019 was passed by the West Bengal Assembly. Yet the fate of the bills hangs in balance as the State government blames the Governor for purportedly withholding his assent to the Bill. Legislated before the enactment of the BNS, this bill stipulates a punishment of three years imprisonment to capital punishment, even for conspirators and abettors, accords protection to witnesses, and upholds the right of the victim to legal aid.

In the Tehseen S. Poonawalla case, the Supreme Court had noted the repeated incidents of mob lynching across various states in India to be deeply troubling and taking the form of a “typhon-like monster.” The lack of specific guidelines and mandates for the executive regarding the handling of such incidents indicate denial and apathy. As inequality rises, internecine conflicts seem likely to persist. As reported Firhad Hakim, West Bengal state minister recently said in the context of a case of lynching, “(m)ass hysteria can only be countered by mass counselling.”