In an ideal world, there should be no special laws. Murder is murder, rape is rape, theft is theft, and all such acts are covered under the Indian Penal Code and the Code of Criminal Procedure. And yet, we have a plethora of special laws, such as those against terrorism, human trafficking, dowry deaths, domestic violence against women, discrimination and violence against Dalits and tribals, and child rape.
Why? Why should there be a greater punishment for raping a girl child than an adult woman? Why should bail be more difficult in a crime motivated by caste hatred against Dalits, than say a crime of passion? Why should the law be more stringent for a man beating his wife than say for the same man beating his friend?
There are societal conditions under which the law needs to be especially stringent, both in terms of punishment and the prosecution process. Immediate arrest, difficulty in getting bail, rules ensuring greater responsibility on the part of the police and the prosecution, fast-track courts, immediate compensation to victims are some of the measures often found in special laws.
And what are these special conditions that need special laws? They are, simply, about vulnerability. The Indian Penal Code has been amended to provide for stringent punishment against domestic violence because housewives are among the most vulnerable. Dalits often face gruesome violence just because they are Dalits. The SC/ST (Prevention of Atrocities) Act makes the police, the administration and the judicial system more sensitive towards this category of crime because getting justice for this category of victims is extremely difficult. Apart from punishment, the law also focuses on prevention, as the name suggests.
A special law for a targeted crime
In a country of 1.3 billion people, there have been only 50 deaths in 133 incidents of cow-related lynching since 2012, according to FactChecker.in. That doesn’t seem like a huge problem then. But those lynched have largely been Muslims – 57 per cent cases. Another study, by IndiaSpend, says that of the lynching deaths reported between 2010 and 2017, 84 per cent were Muslims. Every such case strikes fear in the hearts of India’s largest religious minority.
Just label any Muslim a cow smuggler or accuse him of carrying cow meat, and lynching him seems par for the course. You can find many on social media justifying a Hindu mob taking the law into their own hands in the name of cow protection. Prime Minister Narendra Modi himself said in 2016 that “70-80 per cent will be those who indulge in anti-social activities and try to hide their sins by pretending to be Gau Rakshaks.”
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The problem is similar to terrorism. Terrorism kills far fewer people than traffic accidents, but we have the most stringent laws against terrorism because it causes more than just deaths. It strikes fear in the daily lives of people, bringing cities to a standstill.
The fear of lynching looms large over Indian Muslims today when they do simple things, like travelling in a train. Someone asks them their name and they are afraid to answer. It was in a train, for instance, that a Muslim boy was killed over an altercation on occupying seats. The lynch mob called the Muslim boys “beef eaters” and “anti-nationals”, eventually stabbing one of them to death. In many such cases, the religious identity of the victims seems to be the real cause behind the killing. In other words, these were hate crimes, similar to crimes against Dalits on account of their caste.
Proof that Muslims as a community feel vulnerable because of the growing incidents of lynching lies in some large protests the community has organised, demanding a special law against lynching.
Amit Shah in no hurry
Ideally, India needs a special law against hate crimes and private discrimination on the basis of identity – any identity. But the growing incidents of lynching in the last few years have created an urgent need for a law against lynching.
Most incidents of lynching have been taking place in BJP-ruled states and yet the Modi government doesn’t seem to be interested in countering the image that it is encouraging these lynch mobs.
In December 2018, the Manipur assembly passed a bill against mob violence. It still needs the President of India’s assent since it provides for punishments more stringent than the central laws. Last month, the Rajasthan assembly passed a similar bill, Rajasthan Protection from Lynching Bill, 2019, which is now pending with the Union Home Ministry for approval. The West Bengal assembly has passed its own version, which seeks to award death penalty as the highest punishment.
A law for implementation
It doesn’t look like the central government will let any of these laws become a reality, since it believes that existing provisions of the Indian Penal Code are enough. The problem lies in implementation, the Home Ministry reportedly believes. A group of ministers tasked with looking into measures to address lynching has met only twice since it was constituted in July 2018, and not even once since the Modi government returned to power and Amit Shah became the Home Minister.
Actually, the Rajasthan law is a good one for the Centre to study, since it addresses the issue of implementation, and aims to secure convictions. It lays down a special procedure for the police and the prosecution in lynching cases with the objective of securing convictions.
It places the onus of investigation of lynching cases on senior police officers; details the duties of police officers and district magistrates in preventing lynching cases and ensuring justice through fast-track courts. It also criminalises dissemination of hate literature that might lead to lynching, apart from providing compensation and rehabilitating the victims. These provisions are in keeping with the Supreme Court’s guidelines in the Tehseen Poonawalla case.
The Rajasthan law defines lynching as, “an act or series of acts of violence or aiding, abetting or attempting an act of violence, whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity.” Such a law is an idea whose time has come.
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