This Bill, along with public pressure, will force legislators to act: Hegde

Interview with Supreme Court advocate

Existing laws are insufficient to curb mob lynching and people convicted of such crimes should get life imprisonment, senior Supreme Court advocate Sanjay Hegde, who has worked on a new draft Bill, the Manav Suraksha Kanoon (Masuka), tells Amit Agnihotri.

You have been instrumental in drafting a new law to curb mob lynching. What made you do this?

This is a private citizen’s attempt to handle the whole aspect of lynching as there are several loopholes in the existing laws. The draft law aims to punish the perpetrators and instigators of such incidents, provide compensation and speedy justice to the victims and fix accountability of those in administrative positions, who allow such incidents to happen. For instance, policemen in an area. There is no reason why lynching cannot be prosecuted under current Indian law. Murder in any form, whether by a lone killer or a seething mob, falls within under Section 302 of the Indian Penal Code.

But why a new law?

We have laws to deal with cases of lynching with obscure causes like in case of a thief caught by people or a woman declared a witch by the locals. But over the past few years, an organised identity-based lynching is happening, especially in urban areas. Ordinary laws are insufficient to deal with the problem as they offer no deterrent. It is seen that the administrative machinery tries to dilute the charges during court proceedings. Hence, we needed to suggest a solution for this social problem.

But doesn’t this initiative lack legal sanctity?

Yes. The purpose of the draft law is to provide a legal model before the people who can cite the document and goad our parliamentarians and legislators in state Assemblies to pass adequate laws to deal with the problem. This document allied with public pressure can force lawmakers to act. Lawmakers can’t get away by saying that the existing laws are sufficient to deal with the issue and there is no need for a new one. We will tell them that if this draft is acceptable, please act on it and if it is unacceptable, then please tell us why.

Are there any international contexts to what you are doing? 

The US tried to pass a law against discrimination and lynching called the Dyer Anti-Lynching Bill, 1918, for 50 years but could not do so as the states, especially the southern ones, resisted it. Finally, the US Senate apologised through a legislative resolution in 2005 that it had failed to pass such a law. We don’t want things to come to such a pass in India. This draft will send a perfect message among the people that though there are solutions, lawmakers refuse them. A similar initiative was the anti-corruption Lokpal Act where the people pushed Parliament to act.

Do you suspect there are political forces behind lynching incidents? 

We would like to keep the draft non-political. Lynching is in fact the street majoritarianism’s contempt or defiance of law. In recent years, this has grown through help from social media, TV studios and public speeches. We have introduced some provisions to deal with this aspect but have ensured that the basic freedom of speech is not affected. For instance, if there is a demonstrable link between an incident and an inciting speech, it can be handled by the draft law. The 2012 Nirbhaya rape and murder case protests were political but led to changes in the criminal law. Similarly pro-Lokpal protests were political as well but saw no changes in the anti-corruption law. 

In 2013, the Criminal Law (Amendment) Act expanded the definition of rape and criminalised sexual relations with girls below 18 while adding sections against acid attacks, voyeurism, stalking and other forms sexual assault or harassment. We want a proliferation of debate on the issue. Any law will have shortcomings as new situations emerge.

Can you give us a glimpse into some specifics from the draft? 

The draft Bill criminalises indirect incitement of mobs through vilification. Punishment is a maximum of life imprisonment for the crime, once prosecuted. Police officers and district magistrates, who wilfully fail to prevent such incidents, shall be punished with imprisonment, which may extend to one year, or with fine, or both. The draft Bill includes a provision that will hold the local station house officer responsible for any lynchings that take place in his/her jurisdiction, subject to a time-bound judicial probe to ascertain whether the events were truly out of their control.

Will it involve people who assist the offenders?

Yes. Punishment for giving financial aid for the commission of lynching includes those who knowingly spend or supply any money to support an act, which is an offence under this Bill. Existing laws do not look at the factors leading to the lynching such as campaigns and demonisation.

How will the guilty be punished?

The draft Bill proposes designated special courts to hear lynching cases, like those set up under the Protection of Children from Sexual Offences Act, 2012. This should help ensure speedy justice and demonstrate the intent of the law to prevent any problems. It will include provisions for rehabilitation of victims’ families through mandatory payment of compensation by state governments, rather than leave this to the benevolence of local governments. Fines collected from those convicted under Masuka will also be distributed to the families. Compensation for the victims will have to be devised by state governments and we have suggested parameters to work them out. 

A number of witness protection provisions are to be included that will help ensure that witnesses to the lynchings are not afraid to speak out, as is proving to be the case in the recent Ballabhgarh incident. The police and the courts will have to protect the identities of witnesses, and there will be punishment for leaking of this information. Videographic evidence of survivors’ statements would act as evidence under this proposal. In such cases of lynching, the explicit form of mobocracy, often, survivors live to tell the tale and their statements should be taken as evidence and the same has been prescribed.