By Olav Albuquerque
Those living in the seven Northeastern states of India are not aware that the central government does not hesitate to use obsolete colonial laws like the Indian Penal Code (IPC) passed in 1860 to justify why legislation which the country needs should not be passed. The Supreme Court requested Parliament to introduce mob-lynching as a separate offence in the old penal code. The Northeastern states have a large Christian population which is why anti-lynching laws are needed.
Despite the Home minister, Amit Shah, announcing the obsolete IPC and its corollary, the Criminal Procedure Code, would be revamped, the government has said the term “lynching” has not been defined in the IPC which was why the punishment for murder or rioting would suffice to punish those guilty of mob-lynching. Lynching means when a huge mob of 300 or more surround a person and beat him or her to death.
The central government has not categorically announced that “mob lynching” would be introduced in the soon-to-be updated penal laws drafted by the Committee for Reforms in Criminal Laws. This is in sharp contrast to the laws prohibiting so-called “love jihad” or Freedom of Religion laws which in effect, constrained the right to profess, practise and propagate any religion of your choice as guaranteed between Articles 25 to 27 of the Constitution; or the laws against cow-slaughter or beef-eating.
The government, prima facie, may be reluctant to introduce a central law on the lines of the Anti-Lynching Bills passed by the Manipur, Jharkhand, Rajasthan and West Bengal governments because those who have been charged with mob-lynching profess an ideology identical to those in power.
The Union Home ministry informed Parliament in 2019 that crimes such as mob-lynching could be dealt with under the offence of murder and culpable homicide which dilutes a heinous crime against humanity. The National Crime Records Bureau collected data on mob-lynching which was not published in 2017 because mob-lynching was not defined in the IPC and the government found the data samples were unreliable.
The West Bengal Prevention of Lynching Bill, 2019 not only defined what constituted a “mob” and “lynching” but also prescribed jail terms ranging between three years to life imprisonment for those assaulting or injuring a person with a West Bengal Compensation Scheme in the offing. This was one of the most progressive laws to be drafted which the government said it had not received.
On December 22, 2021, the Jharkhand Assembly passed the Prevention of Mob Violence and Mob Lynching Bill, 2021 which attracted a sentence ranging from three years to life imprisonment but it has not been passed by the Centre. Similarly, on August 5, 2018, the Rajasthan Assembly passed the Rajasthan Protection from Lynching Bill, 2019 which also provided for life imprisonment like the Manipur Protection from Mob Violence Bill, 2018.
In 2019, the Home ministry informed the Lok Sabha it had received the Bills passed by the state legislatures of Manipur and Rajasthan which would be examined by the President who has to act as per the advice given by the Council of Ministers before approving a law. But the West Bengal Bill against mob-lynching had not been received by the central government.
Now compare this with the need for another law to prevent the government arbitrarily allotting prime land in prime metro cities to influential groups like bureaucrats, the police, judges, MPs and MLAs (both past and present), journalists and artistes to curry favour with them. The attorney general of India V.V. Venugopal told a CJI-led bench of the Supreme Court last week that the government must allot land to the poor by prescribing who is eligible in a law which needs to be enacted.
Such needy people who are not as useful as the judiciary and the bureaucrats, are ex-servicemen, war widows, disabled persons, and similar categories. For all other groups, the land allotted with the cost of building a house must be recovered from them. This was why a high-powered committee must be set up in each district of the country to monitor how land may have arbitrarily been allotted.
After enumerating the guidelines in a national land allotment policy, the government could re-possess the land allotted by flouting these guidelines. Only the state legislatures could enact laws on land allotment which should enumerate parameters like pricing and plot size, after following a national policy framed by the central government. But framing such a national land allotment policy may not serve the government’s interests.
What is important is the Supreme Court rarely compels the government to formulate a policy which is inimical to government ideology. This has become very clear with the government refusing to enact a central law against mob-lynching and also allotting land in Mumbai to influential groups like the judges and politicians who can afford to buy their own bungalows.
Consider how the Supreme Court recently upheld the 27 per cent quota for the Other Backward Castes in the National Eligibility Entrance Test which decides who will become doctors. The judges said reservation was not an exception but an extension of the equality doctrine because competitive exams give us an illusion of equal opportunity ignoring inbuilt inequalities prevailing in schools and colleges , the freedom to pursue such education and societal prejudices towards underprivileged groups like the OBCs.
Well said. But such judgments, couched in legal sophistry, appear erudite when the same principle can apply to mob-lynching which caused the horrific deaths of those who do not espouse the Hindutva doctrine. The Supreme Court has upheld reservations for OBCs despite inadequate data but has not forced the government to enact anti-lynching laws on the lines of those enacted in the four states where the ruling party is not ruling. Democracy is mobocracy in disguise because those afflicted by the majority diktat have nowhere to turn if the courts do not oppose the government.
(Dr Olav Albuquerque holds a Ph.D in law and is a senior journalist-cum-advocate of the Bombay high court)