Abstract

Mob Lynching, in recent times, has become a serious threat to our society. The unruly acts of the mob had a serious impact on various aspects such as human rights, unity, degradation of constitutional values, economic loss, etc. The root causes of mob lynching lie in hate, misinformation, communal disturbances, etc. We have tried to figure out possible causes of mob lynching and its impact in India through case study of real-life events.

The Hon’ble Supreme Court, through its 2018 judgment in Tehseen Poonawalla v. UOI, laid down several guidelines to prevent mob lynching. However, it is still unsuccessful in achieving its object. The act of mob lynching undermines the essence of constitutional democracy that has been highlighted in preamble i.e. Fraternity. Also, In BNS, we have seen that the provision is added, however, there is problem of clear definition of mob lynching which we highlighted. We have analyzed the existing legal framework, identified the underlying issues within it, and proposed actionable suggestions for improvement.  Finally, we argue that Constitutional morality needs to be cultivated among people through law, our paper provides constructive suggestions to achieve it.

Keywords: Mob-Lynching, Fraternity, BNS, Constitutional Morality and Tehseen Poonawalla.

I. Introduction

In recent years, Mob lynching is a word that has synonymous with our daily routine in India. We get to hear various news articles and incidents relating to people getting their lives ended due to unruly mobs and the psyche of mob mentality. The psyche of mob mentality is a harmful aspect that is leading to the widespread annihilation of human rights in our country and is a display of how radical thinking of the people of a country can led to such a grave miscarriage of justice where human values are nowhere to be found.

The word ‘mob lynching’ has been formed based on two words- “mob” meaning a large group of people and “lynching” meaning a group killing a person due to various reasons. Thus, the word mob lynching means the act of killing of a person or destroying property by a large group of people for various reasons. The definition of lynching has had various forms, and it has changed in various aspects with the advent of time. It used to involve the act of hanging but it now also includes the aspects of pelting, beatings and death caused by firearms.^[1]

India as a country is a witness to various incidents of mob lynching which in itself is a grave situation to have as it hurts the intrinsic values of the country and the fact that there are negative impacts on the atmosphere of the country which makes for an atmosphere of intolerance. The scale of mob lynching in India can be seen from the fact that in a recent incident, we witness large number of cases of Lynching in West Bengal.^[2]

What we witness is that there is a lack of legislative framework related to mob lynching as it has not been defined in any of the existing provisions of law and the fact that even if the incidents of lynching occur, we observe a delay in the proceedings of cases related to mob lynching as we observe in the Palghar sadhu case^[3] where the matter is still listed but we witness that proceedings have not taken place even after 4 years of the occurrence of the incident.^[4]

In this research paper, we aim to discuss various aspects of mob lynching in India and seek answers to pertinent questions surrounding the issue. We examine the causes, impacts, and the current legal framework related to mob lynching. Additionally, we make several observations about the legislative frameworks that fails to adequately address the problem of mob lynching, while also proposing probable solutions for the future.

II. History

The origin of the term was not exactly determined but it was said to be derived from the name of a Virginia Peace Judge named Charles Lynch who was indemnified in 1782 for illegally fined and jailed some citizens.^[5] The history of mob lynching can be traced back to the events that occurred in the United States of America.

The instance where the cycle of mob lynching is said to have begun would be the abolishment of slavery in 1865 where the killings occurred due to the rage amongst the white people against the black people. The abolishment of slavery meant that they would be treated equally and have the right to vote, but the ground reality was far from what was expected.^[6]There were several incidents of lynching where black Americans were lynched by hanging in public as a method and other types of public murder to ensure segregation and denial of equal rights to ensure racial superiority.^[7]

This lynching period between 1885 and 1960 is said to have caused the death of over 5000 people which was just a mere imposition of the ideology of superiority in terms of race and color leading to a loss of the Rights for those people whom they weren’t able to enjoy despite getting them after a long time.^[8] American Legislature rejected over 100 bills that aimed to curb lynching between 1882 and 1951, which shows the lack of compassion in society can reflect at all levels until changes are made and these changes take time to come with the development of society.

a)    Mob Lynching in India

India can be said to be a country with various diverse features and one of the basic features of Indian diversity we observe is that Indians are said to live with love and compassion and coexist with each other despite the political, regional, or ideological differences which makes it a country known for unity in diversity.

India’s unity in diversity is said to be the epitome of peaceful coexistence but on various occasions, we witness incidents of violence where the ambit of violence engulfs the peace and harmony in the country and we witness some incidents which are nothing short of a violation of a person’s rights.

The first noticeable incident of violence in India can be said to be the incident of the Moplah Massacre where during the Khilafat moment, violence occurred and various Hindus were killed by Muslim Mobs leading to large-scale murders and killings.

The first incident of mob lynching in independent India can be said to be of the notable person Dr. Narayan Rao Savarkar, a freedom fighter and younger brother of Legendary Freedom Fighter Veer Savarkar.^[9] After the assassination of Gandhi by Nathuram Godse, there emerged a wave of violence which led to Chittpawan Brahmans being the victims as they were of the same caste as Godse.

This incident was among those where caste hatred being prevalent in the country was waiting to burst out and the assassination of Gandhi gave some particular justification to the Marathas and the Other Backward Classes of the state to justify their Killings. The gravity of mob Lynching can be observed from the fact that the life of Dr. Narayan Rao Savarkar, a freedom fighter who contributed to the freedom struggle wasn’t spared and his life was engulfed by the anger and hatred that the mob had in their hearts. The act of mob violence also engulfed various lives which are undocumented, but that incident had a major impact related to caste hatred among the communities.

Mob Lynching has been a part of Indian society for a long period, but the words weren’t recognized in India until 2017 when the National Campaign Against Mob Lynching (NCAML) initiated a campaign against the incidents of mob Lynchings.^[10] A bill was presented by NCAML^[11] where mob lynching was defined for the first time in India.

III. Causes of Mob Lynching in India

Polarization is one of the ambits used by the political parties in a country to create differences between the people of the country and the fact that this leads to divisiveness among the people of society leading to conflicts among the different communities within the same country. Polarization makes it increasingly difficult for people to act morally principled by appealing to the truth or acting in line with one’s values when it conflicts with one’s party interests.^[12]

The law makers try to prevent crimes but some persons who develop masterly skill to transgress the law jostle in the streets which eventually leads to an atmosphere which witnesses bloodshed and tears.^[13]

Polarization can also take the shape of violence because Political leaders frequently stoke and exacerbate political and social group divisions—often enhancing in-group hostilities toward outgroups and sometimes encouraging violence—to mobilize supporters for collective action and intimidate and demobilize opposing party members,^[14] which can be seen in India from the ambit of elections where the communities seem to be divided in various groups, each voting for their benefits and this increases friction between the communities based on caste, religion, and ideology, making polarization one of the most harmful things for the Indian democracy. The byproducts of polarization can be seen in the form of caste hatred and communal violence in India.

a) Caste Hatred

One of the basic factors we see in mob Lynching in Indian context can be said to be the violence motivated by the factors of caste hatred among the communities. The lynching of Dr. Narayanrao Savarkar can be said to be an example where the hatred towards a particular person took the shape of hatred towards a whole caste, where we got to see that the killing of Nathruam Godse, a chittpawan Brahman led to such influx of hatred where the hatred of Nathuram Godse turned into hatred towards the community of his caste, and it led to mass murders and killings.^[15]

The contributions of a freedom figher Veer Savarkar were forgotten as the mob killed his younger brother just because their inherent hatred towards the higher caste came to life and got a stimulus through Gandhi’s Killing. Caste hatred can be said prevelant in cases of mob lynching up to this day. People get killed in a mob lynching irrespective of the caste they belong to or the hierarchy of the status they have. During farmer protests in India, we heard news of a Dalit man being killed where Nihang Sikhs had lynched a Dalit Sikh Lakhbir Singh on suspicion that he had desecrated the holy book at a gurudwara at the Singhu border.^[16]

In the Siwan district of Bihar, a 22-year-old youth called Siddharth Singh was lynched by the lower caste people for not saying Jai Bhim.^[17] In a recent news of a Dalit man, being Lynched in the Gurudwara on the mere suspicion that he stole money from Gurudwara’s Gulak was also a symbol of a case of a person’s caste being a reason for being killed and the aspect of justice through caste biasedness prevailed and the daily wage worker became a victim of casteist mindset and never got a chance to present his side.^[18]

b) Communal Hatred

India is considered to be one of the largest democracies where various religions co-exist and cohabit with each other and live in a peaceful and relaxed atmosphere. But one of the aspects which leads to mob lynching in India is communal violence. In India, instances of communal violence can be observed mostly in the columns of the newspapers even if it is not considered newsworthy enough to be covered in the front pages of the news.

The main factors that can become a communal reason for communal hatred between the communities are the inherent hatred and the history the communities share and the mismatching ideologies of the religions which exist in the country. Various instances of mob lynching done by cow vigilantes can be an example of communal reason which lead to mob lynching where non-Hindus being killed because cows are considered sacred in the Hindu religion and the mere fact of transporting them leads to a suspicion that the cows might be slaughtered.

The communal tensions between Hindus and Muslims can be said to extend beyond cows as well, as we find in one of the recent incidents where a Muslim man was mob lynched for the mere reason that he was travelling with Hindu woman on bus.^[19] We also observe cases on similar lines in Muslims lynching Hindus during their festivals when Hindus get in the way or pass through Muslim areas. One of the biggest incidents which took place in 2003 was the Marad massacre where 8 Hindus were killed by a Muslim mob due to the communal tensions between them.^[20]

c) Misinformation

Misinformation among people can be a cause that leads to violence which might lead to mob lynching as that information acts as a stimulant in making people go berserk. The wrong information can take a form of a fear or anger which might lead to a violent outcome, leading to the death of people. The example that we can observe is the case of the Palghar mob lynching where two sadhus along with their driver were lynched by a mob of 400 people due to the suspicion of the fact that the people were organ harvesters and child lifters.

The mob was triggered due to rumors on WhatsApp that the people involved in those crimes dressed up as sadhus, policemen, doctors, and other figures who are seen as trusted.^[21] One more significant incident took place in Karnataka where a village mob killed five friends who went out on a picnic in the outskirts Handikera, due to a rumor of child-lifters being spread on WhatsApp.^[22]

In the era of social media, misinformation can be easily spread as the people posting on social media seldom or never check the inaccuracy of the information of the post they are going to share, which can be deciphered from the lack of digital literacy in India.^[23] People are more likely to spread misinformation when they feel threatened and this lack of check in the accuracy of information spread leads to dire consequences in the form of loss of lives of innocent people.

d) Psychological Causes

As per Sigmund Freud, “Unexpressed emotions never die. They are buried alive and will come forth later in uglier ways. Among the important things mentioned in the Tehseen Poonawala Judgement, one of the objectives of these guidelines is to prevent mob lynching from recurring, but the guideline given to prevent this offence needs work from grassroots levels to prevent it from being spread further. ANCODI Hypothesis defines Anger, Contempt, and violence as the emotions to use violence and act as triggers to aggressive interactions between groups.^[24]

According to the ANCODI hypothesis, not only anger but also contempt and disgust are important emotions to consider for intergroup aggression because they represent a shift from making a temporary assessment about an act committed by a group (anger) toward a permanent assessment of the nature of the opponent group (contempt) and its future status (disgust).^[25] 

India being a diverse country consists of various types of people and the ambit of conflict between its people increases as the manipulation of communal sentiments in lieu of political gains has contributed to the polarization of society along ethnic and religious lines and resulting divisions hinder the formation of a cohesive national identity, posing a formidable challenge to unity.^[26]

When any mob lynching occurs, the information reaches the person through various sources, which leads to the person inculcating hatred within that person, and it acts as a trickle-down effect, combined with negative emotions and existing polarization, and divisiveness, the emotions come out in a manner which eventually turns into an incident of aggression.

e) Lack of individualization

  In a mob, the presence of an individual is hard to be ascertained which leads to a factor of anonymity and it reduces the aspect of fear in an individual’s mind and it can lead to a loss of emotions and the collective emotions of that mob leads to the heinous acts against humanity. It can be said because the individual identity melts away to form a group identity, with its own way of thinking and communication of emotions.^[27]

This is the reason which causes mobs to commit heinous acts without any fear of the consequences. If we notice, no mechanism in law can pinpoint individuals in the mob and what constitutes to be a point where an individual can be held guilty, which can be said to be aspects where the individual becomes a part of mob. The individual who becomes a part of the mob becomes an identity of the mob rather than an individual identity which is a factor that leads to the commission of heinous crime on his part.

f) Bystander Apathy

 The term bystander effect refers to the tendency for people to be inactive in high-danger situations due to the presence of other bystanders.^[28] People are less likely to help others in a situation where there are many people present and the tendency to help the person in that situation decreases.^[29]

In the Indian context, this phenomenon can be seen through the ambit of fear of mobs, leading to numbness of the spectators witnessing that crime. Their Psychodynamics are also determined because Indians deter themselves from going to the police stations as the police is despised as a unite being dismissed as corrupt, inept, and ineffective,^[30] leading to people not being wanting to be involved with them, giving more strength to people involved in mob lynching.

IV. Impact of Mob Lynching

a) Human Rights

Mob lynching impacts the basic rights of an individual and adversely impacts the justice system of the country. The implications of mob lynching can be ascertained from the fact that when a person is lynched, he loses his right to life because of prejudiced notions based on rumor or anger from the side of the mob, and in most cases, killed by the mob, being a direct violation under Article 21 of the Indian Constitution defining that the no person shall be deprived of their life except according to the procedure established by law.

But the fact that people are killed like that because of some provocation is a serious implication on their rights which are being violated. This act also constitutes a violation of the obligations of international law as per Article 3 of the Universal Declaration of Human Rights which tells about the right to life, liberty, and security of a person.

b) Economic Loss

 Mob Lynching often leads to the loss of confidence in the atmosphere of the country in the people of the country as well as the foreigners. In the event relating to doubt in the atmosphere of the country, it leads to a fall in tourism and investments in the country and an overall loss of opportunities. Tourists and travelers assess the risk of travel while choosing a destination and these incidents hurt the tourism and security threats leading to an overall loss of confidence.^[31]

According to the Global Peace Index, India ranks at 72 and the economic cost of violence in India is about 1.6% of the economy which is nearly $646 billion.^[32] This shows that India suffers a lot through these incidents and it leads to overall economic losses of the country.

c) Psychological Impact

 Psychological impact means the effect on the person’s mind and behavior due to the occurrence of any event or observations made by him that changes the person’s thoughts, behavior, and psyche.^[33]

One of the major psychological impacts of mob lynching can be said to be a steady accumulation of hatred between the people and the communities as a whole which gradually increases as time goes on.^[34] When we observe at the causes of mob lynching, one of the major causes we got to observe is related to those that create an impact between communities as a whole. Mob Lynching has a psychological impact of the creation of hatred in the minds of the people which becomes generational.

If we observe the cases, one of the reasons mob lynchings occur is caste hatred, and in the Indian context, caste is said to be a determining factor between relations of people and the caste divide can be observed through caste violence which occurs on a regular basis in India. Similarly, Religious factors also lead to mob lynching in India and they incite hatred among the people of major religions in the country.

These incidents lead to a building of mistrust, fear and suspicion among the people of the country and also lead to constant friction which increases as the reports of the incidents come to light which might evolve to become factors that might be as they grow gradually between the people of the country leading to more such incidents.

d) Damage to Unity

 The observations in the State of Uttar Pradesh v. Lalai Singh Yadav^[35]case act as an apt reference where the references to the pluralistic society of India were made and the fact that the state must ensure the ambit of unity by ensuring actions against the publications, writings, and other ambits which may lead to the sentiments of the communities being damaged. Mob Lynching incidents lead to damage to the unity of the country and give rise to schismatic tendencies in the country. The term Schism meansa break in the unity of the church in Christianity.^[36]

Opinions concerning the nature and consequences of schism vary with the different conceptions of the nature of the church. In the Tehseen Poonawala Judgement, Schism was used in the sense of divisiveness in the society and was discussed that unity in diversity is the strength of the country and it is a sine qua non to sustain it and shun schismatic tendencies.[37]

Due to increase in the misinformation and rumours, there is a creation of rift in the people living in the country where a spread of information leads to an increase in friction between the people and the impact of polarization leads to a burst of hatred against an individual which eventually leads to the killing of that person and that killing acts as a trickle-down effect which leads to even more friction.

e) Increased Polarization

As more mob lynching incidents happen, the polarization between the communities increases and the ambit of hatred gains many more grounds as the increased friction between the communities acts as a lucrative option to the political parties for their vote bank politics and also the ambit of more friction which in turn leads to even more incidents of mob lynching.

f) Loss of Moral Compass

 A Moral Compass means an innate set of values which help a person to determine the implications of the actions done by the person whether they are right or wrong in that aspect.^[38] In case of mob lynching, when an individual being a part of the mob loses his individual identity and becomes a part of the collective identity instead of the mob, he acts as per the actions of the mob and that leads a person to lose his moral compass as he loses his ability to perceive the nature of the actions done by him.

g) Degradation of Constitutional Values

Mob Lynching is an affront to constitutional values as the ambit leads to acts contradicting the procedure established by law. It undermines the formal and statutory institutions and undermines the quintessential spirit of the rule of law. The procedure established by law is hampered in light of the acts of the mob and the lives of the people being taken by unruly mobs based on their contrived notions, leading to extrajudicial killings, which is in contradiction with the criminal justice system of India.

The right to a fair trial,^[39] one of the important facets of Article 21, is directly impacted in the case of mob lynching where the person is killed on the mere suspicion by the mob and the fact, he doesn’t get his right of presenting his side, impacting his fundamental right, acting as a degradation of the constitutional values.

V.  Miscellaneous Causes and Impact

a) Fragmentation and Normalization of Hatred

One of the impacts of mob lynching which is seldom inspected is the normalization of hatred towards one another, leading to fragmentation between the communities. Given different perspectives on mob violence by people on social media and by news outlets, hatred brews among the communities, leading to hatred and eventually violence among the communities.^[40]

The systematic bias in the news outlets acts as a stimulus for spreading hatred through narratives supported by various wings of political parties, leading to polarization^[41] This polarization leads to the emboldening of people who have prejudice against other communities, which eventually translates to aggressive responses and also into violence among the communities. The violence increases polarization to an even larger extent, leading to the brewing of hatred amongst the communities and even more narratives, creating even more significant fragmentation between them and the hatred between them becomes a routine.

b) Dehumanization

Dehumanization could be said to be one of the ambits that are formed due to inherent hatred in the minds of perpetrators of violence, and is often used to justify violence.^[42] Dehumanization is a psychological process whereby the friction between the communities makes them view each other as less than human and thus not deserving of moral consideration.^[43]

Being viewed by others as less human is often a key determinant in reducing affordances of care and concern from others^[44], and being viewed as less humane often leads to less guilt among the perpetrators of violence. Victim-blaming is one of the ambits in Dehumanization where the people engaged in violence blame the victims and it leads to their dehumanization and lower empathy, which eventually becomes a part of thinking of the society.^[45]

The reason why This leads to the normalization of mob violence incidents based on caste, where lower caste and higher caste remain in constant friction, honor killing, where the families of different castes and communities engage in mob killing of couples from other castes, and religion, where already existing polarization leads to dehumanization with victim blaming, leading to even more incidents of mob lynching. 

c) Hatred developing more hatred

Children are referred to by psychologists as the cultural sponges who absorb the things around them which might even include negative things like prejudice.^[46]When there is prolonged exposure to unpleasure, which can and does come in many forms, a child can come to feel hate.^[47] When children are in an atmosphere where they receive negative feedback and prejudice from their parents or their surroundings, they develop a negative perception towards other communities which eventually translates to hatred and might even lead to dehumanization to such an extent that the feeling of guilt of violence might not exist in the minds of children.

VI. Current legal framework

The current legal framework of Mob lynching is an essential part of the discussion to better understand the cause and effect of Mob Lynching and to curb it from the grassroot level. We will examine the 2018 Supreme Court Judgment which provided detailed guidelines on the offence of Mob lynching. Then, we will see the law commission’s report on curbing mob lynching. Lastly, we will discuss the penal provision under IPC and BNS. We will examine thoroughly and understand whether current legal framework is sufficient for curbing mob-lynching or not. We will try to find out the shortcomings, if any, to these frameworks and provide our suggestions, if necessary.

a) 2018 Judgment

A Supreme Court 3-Judge Bench led by the then C.J. Dipak Mishra on 17^th July 2018, in Tehseen S. Poonawalla v. UOI and Ors.,[48] while dealing with the issue of cow-vigilantism dealt with the issue of mob lynching and provided detailed guidelines to curb the issue of mob lynching. According to then C.J. Dipak Mishra:

“No individual in his own capacity or as a part of a group, which within no time assumes the character of a mob, can take law into his/their hands and deal with a person treating him as guilty.”[49]

The above words show that we live in a society where the rule of law prevails. It would be unfair to a person executed by a mob. The rule of law provides a chance for a fair trial for every person. It is even their fundamental right enshrined under Art. 21.[50] Also, in our criminal justice system, a person is innocent until proven guilty.

The standard of proof required in criminal law is of substantial standard, it must be showing clearly that the person is guilty of the said offence. However, when a person is treated by a mob, his guilt is not proven. It is only a group of people acting on certain beliefs and circumstantial evidence, they act impulsively to cause injustice to the victim of mob lynching.

As we have discussed in the causes section of our paper, one of the major causes of mob lynching is communal hatred. This judgment is also related to people acting as vigilantes for protection of cows. This hatred cannot be stopped at once; however, it is possible according to the famous saying of Martin Luther King Jr. wherein he said that law may not be able to make a man love him, but it can keep the man from lynching him.[51] Law has the potential to curb mob lynching if it is properly applied.

In Nandini Sundar v. State of Chhatisgarh[52], the Supreme Court stated that it is the duty of the States, to strive, incessantly and consistently, to promote fraternity amongst all citizens so that the dignity of every citizen is protected, nourished and promoted. If we talk about fraternity, it confers the idea of brotherhood. This idea was enshrined in the preamble from the first day of the Constitution. However, considering mob lynching and other communal tensions, we cannot say it is truly implemented on the ground level. Still, it is prevalent to see that politicians are using communal politics in the recent general election conducted in 2024.

The Court in Poonawala referred to several precedents on the point that it is responsibility of the State Administration in association with the intelligence agencies of both the State and the Centre to prevent recurrence of communal violence in any part of the state.[53] In case of negligence by an officer in maintaining law and order, he/she should be brought within the ambit of law.[54]

Further, the court stated the importance of unity in diversity by highlighting Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P.,[55] wherein the SC stated that religious tolerance is an important facet of “Unity in Diversity”. Then, SC reiterated the importance of tolerance in a pluralistic society like India. There should be respect for every religion in citizens, no religion should be seen as bad by people.

The tolerance level required in a pluralistic society is a sine qua non to prevent mishappening like mob lynching or other communal tensions. Our legal system provides guidelines for arrest if a person is doing unlawful activity. No citizen, therefore, should take the law into their hands to destroy the rule of law in society. The court referred to Shakti Vahini case,[56] wherein the court pronounced judgment against ‘khap panchayats’ or such assembly that take the law into their hands. The court stated they cannot assume the character of the law implementing agencies.  

The court, after all these observations, provided guidelines for mob lynching in nature of preventive, remedial and punitive measures. The preventive measures included the responsibility of the State Government to appoint a nodal officer in each district (who shall be a senior police officer not below the rank of Superintendent of Police).

b) Impact of Judgment

The judgment involved the implementation of guidelines to prevent the recurrence of the incidents of mob lynching in India. Still, the implementation seems to be inadequate enforcement as one of the basic ambits given in the punitive guidelines to avert the incidents of mob lynching was the collection of data that involved the districts where the incidents of mob lynching had occurred, in the recent past which included 5 years.

But if we look at the current state of affairs, the actual implementation seems to be incomplete, as there is not even separate data maintained for mob lynching incidents in the National Crime Records Bureau^[57], which shows the status quo of implementation of measures in the country. Even if we have to make data about the incidents of mob lynching, we rely more on news and other sources to furnish the list of incidents of mob lynchings.

The Palghar Sadhu incident in 2020 can be said to be one of the major incidents in the modern era where the lack of implementation of the guidelines can be observed. The sadhus were killed on suspicion by the mob that they were organ harvesters due to some rumours spread on social media.

One of the ambits of the guidelines in the preventive measures included the appointment of a nodal officer who shall procure information about the people likely to commit such crimes and people who are involved in spreading fake news. There were no actions done related to that.  The remedial actions of the guidelines involved the trial in the fast-track courts embarked for the inexact purpose, which wasn’t implemented in any sense as we found that the mob lynching case was unheard of in any court of law for over two years after the offence had occurred.^[58]

The punitive action was followed as there were suspensions done after the incident but the failure of police to save their lives^[59] and letting them be handled by the mob was a serious implication that there was no information being collected during a sensitive period as covid was at its peak and handling of cases related to misinformation required better execution and their lives being lost.

The implementation of the guidelines is unaccomplished and it can be realized from the fact that the police were unable to avert the incident of mob lynching and the Sadhus were killed by the mob despite the arrival of police, as they watched the sadhus being mercilessly beaten by the unruly mob, shows a failure on the part of the police to even being able to protect their lives as they were hacked to death.^[60]

If we take example of Aligarh in Uttar Pradesh, we saw two incidents of lynching in 2024 itself, where a man was lynched on suspicion of theft^[61] and another incident just after 11 days where a mob beat a man for shouting religious slogans.^[62] Even in Rajasthan, in 2023, we observed an incident where a man was lynched in Alwar over chopping wood,^[63] which was followed by one more incident which involved a man getting mob lynched within less than a month following that incident in Tijara.^[64]

And these are the incidents occurring after several years of the judgment which involved the implementation of guidelines that would prevent recurrence. Still, we observe that they recur at an unprecedented rate, taking the lives of people without any respect for the rule of law. The lack of collection of data related to those lynchings can be seen as a failure on the part of the states to implement these guidelines. The fact that Rajasthan even passed the Mob lynching bill in 2019,^[65] to curb those killings can be said to be a lack of proper implementation of the guidelines at the grassroots level.

c) Constitutional Provisions and Presence of Constitutional Morality

The constitutional provision protecting a person from being lynched involves Article 14, 19 and 21 and fundamental principle of Constitutional morality. Article 14 provides right to equality, it imposes a duty on the state to provide equality before law and equal protection of laws within the territory of India. It is duty of the state to frame laws to ensure that no person is getting lynched by a group/community.

Consider a situation of mob lynching where a person is killed arbitrarily without providing him the opportunity of trial, the law of the State does not recognize mob-lynching specifically as a separate offence. In such a situation, will the victim ever be able to get complete justice? The people who have been lynched may not ever get punished because sometimes mob lynching involves hundreds of thousands of people. Also, the data of mob lynching is not collected by NCRB as a separate offence.[66] In such a situation, it is clear murder of the rule of law by a mob. In EP Royappa v. State of Tamil Nadu,[67] the SC observed that equality is anti-thetic to arbitrariness.

In the above-mentioned judgment the arbitrariness was in the context of the State not in the context of a mob. However, with perusal of Art. 14, the state must provide protection of law to the victims of mob lynching. If the State fails to do so, it violates Article 14. Also, fundamental rights are not read in isolation from each other. The SC has already established a relationship between one fundamental right to that of other. Articles 14, 19 and 21 are simultaneously read as the ‘Golden Triangle’ of the Constitution.[68] Hence, if there is violation of one of the articles, there is a violation of the other two.

Also, it must be noted that we have a written Constitution that laid down the principles of morality famously known as ‘Constitutional Morality’. Even if the activity by a mob is within the justifiable sense of public morality, it is not sufficient to say that it is the right thing to do due to the presence of Constitutional morality. This regard must be given to Constitutional morality, not public morality. Our Constitutional preamble laid down the idea of Secularism and Fraternity. The important principle that helps to maintain a good relationship between the communities and ensure that religious tolerance is present.

It would great disregard to the Constitutional ethos if such an act of mob lynching were present in society. We must follow Constitutional principles to maintain healthy relations and stop these hate crimes against race, religion, community, gender etc. Now, we will delve into the provisions of our penal laws to find out the relevant provisions governing mob lynching.

d) IPC and BNS

IPC does not used to have specific offences related to mob lynching or hate crimes. It treated mob lynching as an offence done in common object. Sec. 149 IPC deals with common object, it requires an assembly of five or more persons doing an offence with common object. If there is killing involved in mob lynching, then Sec. 302 IPC is read with Sec. 149. This way the punishment of the offence is given. However, the negligence of various aspects makes it difficult for prosecution to establish guilt of every person involved in such lynching. It is very easy for perpetrators to get free without any consequences due to this mechanism.

Now, coming to BNS, it recognizes killing involved in mob lynching through its Sec. 103(2) which provides killing by a group of persons on different fragments. The same can be produced here:

“(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.”[69]

On similar grounds, it is provided under Sec. 117(4) of BNS related to voluntarily causing grievous hurt.[70] Even though BNS covers the offence as a hate crime on different grounds. However, we see a similar issue with BNS. It also fails to identify mob lynching and define it as exclusive or complementary to that hate crime. Putting mob lynching within punishment of murder based on belief limits other forms of mob lynching. It also stops the NCRB from maintaining separate data for cases involving mob lynching. We will deal with this issue in detail in the upcoming section focusing on importance of having separate provisions or statutes for mob-lynching and the reason

e) Laws framed by State legislation

Various states have framed their legislation/ordinance/rules on the issue of mob lynching. We will review each of them to understand the provisions. In 2018, Manipur became the first state to pass law against mob lynching. It is present there in the form of ordinance.[71] The first thing the ordinance does is to create a separate offence for lynching and providing adequate punishment. The ordinance is along the lines of Tehseen S. Poonawala v. UOI. The ordinance is 33 sections long following the 2018 judgment. Unlike BNS, there is no death penalty in this ordinance even if such lynching causes death. This ordinance can be said as the extension of Supreme Court judgment.

Apart from Manipur, three other States passed bills against mob lynching, but no bill have till today have became a legislation. These Includes Rajasthan, Jharkhand and West Bengal. In Jharkhand, the Governor returned the bill stating that there is no proper definition of ‘mob’.[72] Some of the laws are under the consideration of President referred by respective State governor.[73]

VII. Challenges related to Mob-lynching

a) Missing data on Mob-lynching

During 2017, NCRB collected data on mob-lynching, hate crimes and cow vigilantism but it was not published due to inadequacy in definition and unreliability.[74] The missing data on mob lynching poses a serious question of misunderstanding it with similar offence. The offence, as we have analysed in our paper, requires immediate attention and adequate recognition to prevent its recurrence and devise a comprehensive solution aimed at eliminating the root cause of the problem.

Addressing this issue at a surface level will not suffice; to effectively tackle it, we must delve deeper into its core, meticulously filtering through the underlying factors and contributing circumstances. To achieve this, we need to gather data on such offence but one problem often reported by reporting agencies is the missing ‘defintion’.

b) No proper definition

The only reason cited for holding the law passed by the state and maintaining data by the NCRB is the lack of a proper definition. The question remains: is it truly difficult to determine an exact definition for mob lynching? In this paper, we have discussed various causes and impacts of mob lynching and conducted a calculated study based on existing legal literature.

The only requirement to define mob lynching is the intention to implement and treat it as a separate offence by the government. While provisions have been added to the BNS, the question persists: are these provisions sufficient to identify the grassroots level of the offence?

Mob lynching comprises a series of acts, each of which has the potential to become serious in its own right. It is a collective offence consisting of several grave offences. Treating it as a separate offence is essential to maintain societal balance. Parliament needs to pass laws that promote fraternity and prevent mob lynching. Until then, it can be concluded that there is an insufficiency in the law.

c) Insufficiency of law

A need for structured legislation and statutory provisions is a mandate to prevent the grueling offense of mob lynching as the existing legislations provide no ambit of a proper definition of mob lynching and what it constitutes. There is a need for the enforcement of specific legislation to deal with the crime of mob lynching, an offense acting as a threat to societal peace.^[75] The lack of specific legislation regarding the same shows vulnerabilities in the process of law, where despite the existence of provisions in the IPC and CrPC, the issue of Mob lynching cannot be comprehensively addressed.^[76]

What we lack is not just legislation but also mechanisms to instill constitutional morality in individuals. The use of words like fraternity in the Preamble holds little meaning unless it is genuinely reflected in society. The intent behind promoting fraternal values is to encourage individuals to act with respect and uphold the values of every community, without making such respect feel burdensome.

While achieving this may take several years, a positive step and approach is essential. We are not suggesting moral policing of individuals who engage in such acts; rather, there should be strict punishments for such behavior. Our aim in emphasizing these values is to address the issue at the grassroots level and ensure that future generations do not inherit the hatred discussed in the miscellaneous causes section.

VIII. Conclusion

We will conclude our paper with a discussion on Fraternity, as founded in the Preamble of our Constitution. As we highlighted the challenges related to mob lynching, tackling this issue requires pragmatic solutions. As discussed above, the 2018 judgment has not been implemented at the ground level through any legislation or positive steps. Furthermore, efforts to address the root causes of mob lynching are also lacking.

We believe that promoting the constitutional value of Fraternity can help tackle the issue of mob lynching. Justice and Equality have been emphasized the most in the Preamble, in contrast to Fraternity. The importance of discussing Fraternity lies in bringing it into the limelight. This can help embed the principle of fraternity in the minds of young people at an age when they are particularly receptive to such critical information.

The foundation of mob lynching lies in hate, misinformation, and erroneous reasoning. We have identified the need to maintain separate data on mob lynching. Since a large number of people are often involved in a single mob lynching offence, many believe they can escape punishment or avoid being traced. It is crucial to identify areas prone to such incidents and install proper surveillance systems so that the individuals involved can be easily identified.

At a fundamental level, there are commonalities in the nature of mob lynching offences. The key elements of mob lynching can be understood through a clear and precise definition of the term. Many thinkers have emphasized that the first step to solving any problem is to identify and define it. Once identified, we can frame laws that not only tackle the problem but also reform individuals, helping them understand the high principles of constitutional morality.

By fostering such values, individuals can develop the ability to identify and self-realize what is right and wrong. Children who have never experienced peace and those who have never experienced violence grow up with different values. As stated by Dr. BR Ambedkar related to cultivation of Constitutional morality:

“Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it. Democracy in India is only a top-dressing on an Indian soil, which is essentially undemocratic.”

There is nothing that can stop us from believing that diversity and fraternity cannot survive together. The offence of mob lynching is also related to the value system and the perception of other communities as different and alien to us. While the law can prevent and stop lynching, it cannot make people love one another. However, the feeling of brotherhood can be developed over time through positive action by the State. Promoting the inherent principle of Fraternity is one way to remove the root of mob-lynching problem.

Cow vigilantes, religious vigilantes, or any other vigilantes need to trust the legal process and maintain a temperate and kind approach toward any information they hear that goes against their beliefs. One day, for sure we will achieve this goal we have seen today. The day will come after we have embraced and embedded these principles discussed above.

To read more research papers click here.

This research paper is written by Jeet Sinha and Suyash Shukla.

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