The Statutory ‘POENA’ Of Mob-Lynching In India
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Category: General Law
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THE STATUTORY ‘POENA’ OF MOB-LYNCHING IN INDIA
S. Suraj, B. A. , LL. B. , LL. M. , UGC NET, P. G. D. I. P. R. , Advocate at Courts of Rajasthan “It may be true that the law cannot make a man love me, but it can keep him from lynching me, and I think that's pretty important. ” ~ Martin Luther King, Jr. THE PROEM Killing a Human has always been regarded as an offence of heinous nature, all the consequences of ending a life cannot be foreseen in any case. Such killings can be done by one person or an association of persons having a common purview towards the victim. When a group of persons are involved in a killing then there is an element of common mindset that is an intention to lynch. It is very difficult to ascertain the numbers and the exact identities of people indulged in a violent mob.
It is said that a mob does not have any specific identity in terms of religion, race or caste, it is just a group of people committing an act contrary to the law but may have a common motive to lynch on ground of race, caste or community, prevailing superstitions, place of birth, personal belief or any other similar ground. No person, whether individually or as part of a group that may quickly turn into a violent mob, has the right to take the law into their own hands and mete out punishment (‘poena’ in Latin) to someone they deem guilty. The established legal principles in no way embolden an anarchial society which disobeys the authority of law. An act, though may be contrary to the beliefs of a community or even if such act is an offence, should not be judged by any community claiming to be protectors of the law. There is law, there are courts and there is a procedure.
It is a fundamental principle of criminal procedure that an accused should be charged under the law and dealt with according to the due process, without any hindrance, to ensure that justice is served properly. The brief facts of a well-known Emmett Till Case are as, on the morning of August 28, 1955, a 14-year-old boy named as Emmett Till, an African American from Chicago, while visiting his family in Mississippi, was brutally murdered for allegedly flirting with a white woman four days earlier. His assailants—the white woman’s husband and his brother—made Emmett carry a 75-pound cotton gin fan to the bank of the Tallahatchie River and ordered him to take off his clothes. The two men then beat him nearly to death, gouged out his eye, shot him in the head and then threw his body, tied to the cotton gin fan with barbed wire, into the river.
Racial killings were prevalent in the United States but Till's murder was so chaotic and disturbing that it contributed to congressional passage of the Civil Rights Act of 1957 which authorized the U. S. Department of Justice to intervene in local law enforcement issues when individual civil rights were being compromised. In 2022, the 117th United States Congress enacted and enforced Emmett Till Antilynching Act, a United States Federal law, to amend Section 249 of Title 18 of the United States Code (Federal Criminal Code) with an objective to specify and to define lynching as a federal hate crime increasing the maximum punishment up to 30 years of imprisonment for several hate crime offences.
Section 249(a)(5) of the Title 18 of the United States Code defines ‘Lynching’ as- “Whoever conspires to commit any offence under this section shall, if death or serious bodily injury results from the offence, be imprisoned for not more than 30 years, fined in accordance with this title, or both. ”
THE LEXICOLOGICAL
DISCUSSION
The offence of lynching is carved out of the feeling of hatred towards a person which in fact may become motive to commit the offence of lynching. For being more appropriate in terms it is better to use the word lynching when the offence is committed by two or more persons jointly, a single person causing any injury or causing death of a person cannot be said to be lynched (rather it would be a Murder) though the element of hatred towards the victim may existed. Where such offence is committed by a larger group of persons with a common mindset of hatred towards the victim it becomes a ‘mob’ and in consequence killing a person makes it a mob-lynching.
In my opinion it is a compound word made up of two terms that is ‘mob’ (a large and disorderly crowd of people) and ‘lynch’ (to put to death by a mob action) which is to be conjunct with a hyphen as both terms are to be used in concert, that is mob-lynching. Any person abetting a mob to lynch a person is considered to be a latent member of such mob, though not present at the crime scene is liable in the very same way as if he was present at the crime scene.
THE INDIAN FACET
Under Ss. 34 and 149 of the Indian Penal Code, 1860 [Now Ss. 3(5) and 190 of the Bharatiya Nyaya Sanhita, 2023(hereinafter referred as ‘BNS’)] the law sets out the liability of the cooffenders in a joint and constructive way but is differentiated by mental element of common intention and common object respectively. There were some other provisions in the Indian Penal Code, 1860 which were with the same objective and in the same spirit to provide punishment for the attempt and commission of offences related to mob violence such as promoting enmity between classes, rioting, mischief, etc. which are also provided under the new code.
Earlier in the IPC there were general provisions which dealt with the offences against human body committed by two or more persons and such persons were booked under provisions as an offences provided and not as a hate crime that is the existence of the grounds as mentioned in the BNS were material only in the terms of facts relevant to the case and not essential as to create an aggravated form of offence because there was no specific expressed offence where such act was to be accompanied by the motive of hatred towards a person due to his race, caste or community, sex, place of birth, language etc. The related provisions under the new general penal code of India, The Bharatiya Nyaya Sanhita, 2023, resembles to the Section 249(a)(5) of the Title 18 of the United States Code.
They provide for the specific criminal liability to deal with the mob-lynching though not expressly using the word ‘mob-lynching’ it has been made an aggravated form of Murder. Section-103 of BNS provides for the punishment of Murder wherein Subsection- 2 provides that: (2) When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.
Also, Subsection- 4 of Section- 117 of the BNS provides punishment for an act of five or more persons acting in concert causing Grievous Hurt on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, in the language of law it provides: (4) When a group of five or more persons acting in concert, causes grievous hurt to a person on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Here it is clear that only if five or more persons are indulged in the act of violence on the given grounds then such act will attract the above offences, but, what if more than two but less than five persons are involved? In the given situation if more than two but less than five persons caused any injury coming under the purview of Grievous Hurt done in furtherance of common intention then they will be charged under Section- 117(4) read with Section- 3(5) whereas if they committed culpable homicide amounting to Murder in furtherance of common intention then they will be charged under Section- 103(1) read with Section- 3(5) but here the grounds, as provided under Ss.
103(2) and 117(4), are not the requisites which means that such commission of the offence will not be considered as aggravated forms of Grievous Hurt or Murder under the BNS though it has been committed by them acting in concert on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground. THE INTERPRETATION Five or More Persons To attract the offence, it is essential that the number of offenders must be five or more. That is, it is first and the foremost requirement of the offence. Where a larger number of people are involved in a killing, they hold a dominant position over the victim, physically as well mentally. There may be a thought of the legislature that a ‘mob’ means a large group of people therefore it carved the law in such a way, though the law does not use the word ‘mob’ anywhere.
It is true and practical that it is difficult to ascertain the identities of the persons involved the mob which makes it more challenging for the prosecution in a situation where less than five people are arrested and prosecuted. To deal with this situation the precedent of RAM BILAS SINGH v. STATE OF BIHAR1 related to the offence of Unlawful Assembly can be a cure as it is in the same ethos. In this case
1 [1964] 1 SCR 775.
the Supreme Court of India has identified the situations that justify conviction of accused as members of unlawful assembly even if their number is reduced to less than five. Such reduction may happen as the other persons so named in the charge may not be available for the trial along with their companions for the reason that they have absconded, not arrested and produced.
It ruled that “it is competent to a court to come to the conclusion that there was an unlawful assembly of five or more persons, even if less than that number have been convicted by it if: (i) the charge states that apart from the persons named, several other unidentified persons were also members of the unlawful assembly whose common object was to commit an unlawful act and evidence led to prove this is accepted by the court; (ii) or that the first information report and the evidence shows such to be the case even though the charge does not state so; (iii) or that though the charge and the prosecution witnesses testified the names only of the acquitted whereas for the convicted accused persons there is other evidence which discloses the existence of named or other persons.
However, in the cases (ii) and (iii), the court, before conviction, has to see that “no prejudice has resulted to the convicted person by reason of the omission to mention in the charge that the other unnamed persons had also participated in the offence”. 2 In my view, even if a person belonging to the group dies after committing the offence where the numbers of offenders are essential to attract the offence and due to such death of one of the offenders the numbers are reduced against the requirement but the FIR, charge and evidence proves his culpability then it shall not be a be a ground to make the law inapplicable upon other offenders and they must be punished as if such offender took part in the trial.
“Acting in Concert”: The Accessorial Liability The words “Acting in Concert”, which means a co-operative agreement for a common object, are generally used in corporate law as ‘PAC’ that is Persons Acting in Concert and used specifically in the law related to companies in the subject of acquisition of shares and takeovers. The usage of “Acting in Concert” under Ss. 103(2) and 117(4) of the BNS has a similar connotation but with different intent and effect, here it means acting for a common objective or purpose. The law under the BNS is imposing liability of the act committed by any one or more of the five or more persons upon all the members of such group jointly. It has to be kept in mind that the presence of the members of such group at the crime scene is essential to charge them with the offence. It is immaterial to the substantive law that who commenced the act or
2 Ram Bilas Singh v. State of Bihar, [1964] 1 SCR 775.
who imparted the final blow, what the prosecution has to establish is the participation in the group which became a mob. The legislature would have used the words “... in furtherance of common intention... ” in the place of “acting in concert” if they would have meant to charge the offenders with S. 3(5) BNS leaving no scope for joint liability on the basis of common object i. e. under S. 190 BNS and in consequence the charge would have failed if the prosecution could not have established the common intention shared by the several accused where it was the case of common object. Here the words “Acting in Concert” are enabling in nature to prosecute and charge the offenders with S. 103(2) along with S. 3(5) or S. 190 BNS (i. e. common intention or common object) as the facts of the case indicates.
Commits Murder: The Aggravation Aggravation is a word which is used in comparison to the basic and it means to make the act more severe due to the presence of specific circumstances or factors that enhance its gravity. These additional circumstances contribute to an increased level of seriousness beyond the basic nature of the offence. When an individual is accused of committing an "aggravated" offence, it indicates that his actions included or were influenced by factors that intensify the overall severity and impact of the offence, making it a more serious legal matter. The factors which make the offence more severe, that is aggravated in nature, are the grounds which are expressly provided in the charging section that is S. 103(2) of BNS.
The reason why this offence is being manifested as an aggravated offence because the legislature has expressively provided for the punishment where five persons or more are involved in the killing of a person “on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground” whereas in such cases where people were killed by a mob on the ground of motivated hatred were dealt under the old IPC also where there was no specific provision and were charged with S. 302 read with S. 34 IPC. The law is applicable and commanding upon its subjects and it is not essential that all of its subjects are lawyers who can understand all the minutiae of such law therefore providing something expressively makes it known and clear to the subjects.
As earlier mentioned, the offence uses the phrase “commits murder” which makes it an aggravated form of Murder that is the actus reus (causation of death) and the mens rea (intention or knowledge as the case may be) of the offence of murder will apply with the exceptions enumerated in S. 101 BNS in the same way. It is the rule of law that the punishment for the aggravated offence is more severe than the offence of alleviated nature. Here the punishment under Ss. 103(1) and 103(2) of BNS is the same and is maximum in terms of the imprisonment, that is imprisonment for life, or where the case qualifies the test of rarest of rare, the most severe punishment that is punishment of death. The Motive The phrase, “... on the ground of his race, caste or community, sex, place of birth, language, personal belief or any other similar ground...
”, clarifies the legislative intent to inculcate the element of motive in the offence. Motive is the reason or ground of an action which impels to act with the intention to obtain a definite result. Motive is also called as ‘ulterior intent’. Motive is something that prompts a person to form an opinion or intention to do certain illegal act or even a legal act by illegal means with a view to achieve the intended result. 3 It is a psychological phenomenon which impels a person to do a particular act. 4 It leads or tempts the mind to indulge in a criminal act or as the moving power which impels to act for a definite result. 5 Motive is the reason for an action which exhort a person to act, it can be hatred, enmity, fear, jealousy, etc.
Being an aggravated form of Murder the actus reus and mens rea is the same what differentiates it is the existence of and nature of the motive that is race, caste, sex, place of birth etc... Ordinarily mental element of a crime involves no reference to motive unless specifically required as a requisite for the offence. Homogeneity of Grounds: The Rule of ejusdem generis The offence specifically stipulates the grounds upon which the death is caused though such grounds are not exhaustive in list therefore they are ejusdem generis with the word “any other similar ground”. Ejusdem generis is the principle of construction (or interpretation) of statutes and other documents that where specific words are followed by general words, the general words are limited to (or, in other words, are ejusdem generis with) things of the same class as the specific ones.
The phrase ejusdem generis, is, therefore, simply a specific example and application of the noscitur a sociis principle which states that words should be identified by reference to other words in the context of which they appear.
3 Basdev v. State of Pepsu, 1956 SCR 363.
4 Nathuni Yadav and Ors. v. State of Bihar and Anr., 1996 SCR 905.
5 State of West Bengal v. Mohammad Khalid, 1995 SCC (1) 684
“... Any other similar ground... ” may include prevailing societal or religious superstitions, extremist policy towards a particular belief or religion, a situation where a person has committed any offence against which there is an anguish in the society, a person caught stealing at a public place, where a person is caught in the act of meeting their significant other, and many other grounds which are in the same line and spirit to the provided grounds in Section- 103(2). THE EPILOGUE Honorable Mr. Dipak Misra J. , in S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND ORS. 6 observed that, “A right is conferred on a person by the rule of law and if he seeks a remedy through the process meant for establishing the rule of law and it is denied to him, it would never subserve the cause of real justice.
” Erstwhile, due to the absence of the above discussed law the Supreme Court of India as a guardian suggested certain preventive measures, remedial measures as well as punitive measures in the leading case of TEHSEEN S. POONAWALLA v. UNION OF INDIA AND ORS. 7 and it was held “Hate crimes as a product of intolerance, ideological dominance and prejudice ought not to be tolerated; lest it results in a reign of terror. ” In pursuance of this judgment several states framed laws to deal with the lynching cases, for example The Manipur Protection from Mob Violence Bill, 2018, The West Bengal (Prevention of Lynching) Bill, 2019, The Uttar Pradesh Combating of Mob Lynching Bill, 2019, The Rajasthan Protection from Lynching Bill, 2019, The Jharkhand (Prevention of Mob Violence and Mob Lynching) Bill, 2021 whereas the Parliament introduced The Prevention of Mob Lynching Bill, 2022.
None of the above union and state draft laws were enforced till the date of enforcement of the BNS therefore the question of contradiction and precedence takes no place. Hence the lacuna has been filled by the union legislature through enacting The Bharatiya Nyaya Sanhita, 2023 and in particular S. 103(2) BNS in pursuance of the constitutional directives “... to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of
6 [2017] 2 S.C.R. 466 [Para 2.1].
7 [2018] 9 S.C.R. 291.
the national life.”8 and “...to secure that the operation of the legal system promotes justice, on a basis of equal opportunity...”9
8 Article- 38 cl. (1) of The Constitution of India.
9 Article- 39A of The Constitution of India.