Context

At a time when India is reeling under hate lynching, it is sobering to remember that it took the United States Senate 100 years to approve a bill to make lynching a federal crime. Over 200 anti-lynching bills were introduced in the U.S. Congress since 1918, but all were voted down until the Justice for Victims of Lynching Act of 2018 was approved unanimously in 2018.

Problem with lynching:

• Hate lynching is designed as an act to terrorize an entire community. Though the number of murders seems small, these performative acts of violence succeeded in instilling intense fear among all African-Americans for decades.

• Modern technology – video-graphing of mob lynching, widely circulating these images through social media, and celebrating these as acts of nationalist valor have instilled a pervasive sense of every day normalized fear in the hearts of every Indian from the targeted minority community. It is this which indeed makes lynching an ultimate act of terror.

Supreme Court:

The Supreme Court of India recently asked the Union government and all the major States to explain what action has been taken to prevent these growing incidents of lynching, including passing a special law to instill a sense of fear for law amongst vigilantes and mobsters.

Significant statutes

• The Uttar Pradesh Law Commission (UPLC) took the initiative to recommend a draft anti-lynching law.

• Ordinance introduced by the Manipur government last year

• Impunity as a crime: Both the Manipur statute and the UPLC draft create a new crime of dereliction of duty by police officials, holding a police officer guilty of this crime if he or she “omits to exercise lawful authority vested in them under law, without reasonable cause, and thereby fails to prevent lynching”. Dereliction also includes the failure to provide protection to a victim of lynching; failure to act upon apprehended lynching; and refusing to record any information relating to the commission of lynching. This crime carries the penalty of one to three years and a fine.

• The UPLC goes further to include also a new crime of dereliction of duty by District Magistrates.

• The creation of this new crime was also the key recommendation of the Prevention of Communal & Targeted Violence (Access to Justice and Reparations) Bill. Only the creation of such a crime will compel public officials to perform their duty with fairness, in conformity with their constitutional and legal duties, to ensure equal protection to all persons, regardless of their faith and caste.

• Both the Manipur law and UPLC recommendations also lay down elaborate duties of police officials in the event of lynching. These include:

  • taking all reasonable steps to prevent any act of lynching including its incitement and commission

  • making all possible efforts to identify instances of dissemination of offensive material or any other means employed in order to incite or promote lynching of a particular person or group of persons

  • making all possible efforts to prevent the creation of a hostile environment against a person or group of persons.

• Both sensitively and expansively lay down official duties to protect victims and witnesses

  • a victim shall have the right to reasonable, accurate, and timely notice of any court proceeding and shall be entitled to be heard at any proceeding in respect of bail, discharge, release, parole, conviction or sentence of an accused, and to file written submissions on conviction, acquittal or sentencing

  • require the Superintendent of Police to inform the victim in writing of the progress in the investigation

  • the victim shall have the right to receive a copy of any statement of the witness recorded during investigation or inquiry and a copy of all statements and documents.

  •  UPLC goes further than the Manipur statute in laying down the right to compensation.

  • It places the duty squarely on the Chief Secretary to provide compensation to victims of lynching within 30 days of the incident.

  • It states that while computing compensation, the State government must give due regard to bodily, psychological and material injuries and loss of earnings, including loss of opportunity of employment and education, expenses incurred on account of legal and medical assistance. It also lays down a floor of ?25 lakh in case lynching causes death.

Challenges with legislation:

• Text of the United States bill records that at least 4,742 people were lynched in the U.S. between 1882 and 1968, but 99% of all perpetrators remain unpunished

• Madhya Pradesh Cow Progeny Slaughter Prevention Act 2004 limits its scope only to cow-related lynching, and not lynching triggered by other charges. Its proposed amendments do not include any provisions to punish dereliction of duty, protect victim rights or secure compensation. All that it proposes is punishment for any act by a mob which indulges in violence in the name of cow vigilantism from six months to three years of imprisonment and a fine

• Rajasthan has also tabled an anti-lynching bill. This prescribes higher punishments, an investigation by senior police officers, and mandatory compensation but not the critical elements of dereliction of duty or victim rights. Without these, they will make little difference on the ground.