ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846
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Open Season for Lynching

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Lynchings in the name of cow protection have become a common phenomenon across India, particularly since 2014, with the incumbent government providing its tacit support to such incidents. These lynchings are not stray incidents of mob violence motivated by a “love of cows,” but are calculated statements aimed at instilling fear and asserting caste or religious supremacy. Lynching acts as a tool to uphold the caste hierarchy, and as a warning towards minorities trying to improve their station in life, an act which is viewed as a “caste offence.” It can thus be viewed as a pushback from the majority against minorities, which have been progressively seeking their rights and upward mobility.

In the United States (US), it was similarly observed that the lynching of African Americans was aimed at sending a powerful message: that of the reconstitution of the sovereignty of the white community, and its political and moral order purportedly challenged by African Americans.

By and large, the judicial precedents on minority rights and cow protection legislations do not inspire confidence. For example, in Subhash Kashinath Mahajan v The State of Maharashtra (Criminal Appeal No 416 of 2018), while barely relying on any data, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was diluted by the Supreme Court, thereby making offences against Dalits and Adivasis harder to prosecute, overlooking the difficulties such minorities already face in their interactions with the police and legal system when accusing caste Hindus. Further, in State of Gujarat v Mirzapur Moti Kureshi Kassab, Gujarat’s draconian cow slaughter law was held to be constitutionally valid by the Court.

In Tehseen S Poonawalla v Union of India (2018), it was brought to the notice of the Supreme Court that the current spate of lynchings bear striking similarities to the lynching of African Americans in the US. African American men were lynched on a wide scale from 1880 to 1960, with such killings being essentially assertions of racial supremacy. A parallel was pointed out that, in an overwhelming number of lynchings across the country, the victims have been members of marginalised communities: Dalits and Muslims. The Supreme Court in its judgment, inter alia, recommended that Parliament enact a fresh law specific to lynching.

A notable shortcoming in the Supreme Court’s judgment in the Poonawalla case is that it refrained from explicitly recognising the caste and religious dynamics behind lynching, as well as the political atmosphere in which the current phenomenon has been taking place. However, the Court’s recognition of the fact that the current phenomenon of lynching requires the enactment of a separate law is significant.

While such a recommendation ought to have been made in light of the sociopolitical context within which such killings are taking place, the judgment instead appears to treat the current phenomenon as a mere collapse of rule of law, and thus its recommendations appear to be inclined only towards restoring public faith in what is a crumbling legal framework. Notably, the recommendation for a separate law on lynching appears to be motivated primarily by a concern to restore any semblance of law and order to the cow-belt states, and not out of a concern for the minorities living in fear, who have been casually ignored by the apex court, finding not even one mention in the entirety of its judgment.

While a separate law is welcome, it would only be effective if it were to address the structural divisions along the lines of caste and religion, as these are pervasive in their nature and even influence the functioning of the police and government to act in favour of the dominant group. The Supreme Court’s guidelines appear lacklustre on this front. The law, as it stands currently, misguidedly treats minority groups at par with the majority, overlooking the secondary victimisation such minorities go through in their interactions with the police and legal system. By failing to explicitly recognise this, the Court has missed a golden opportunity to lay the groundwork for substantial equality for minorities within the Indian criminal legal system.

The current phenomenon of lynching is much more than a mere breakdown of law and order; it is a worrying manifestation of a deep fissure in society along caste and religious lines. The complicity of the police and political representatives further reveals that our legal system, though facially neutral, remains similarly afflicted by this division, which is reflected in its dispensation towards the dominant, majority group. While the recommendations in the Poonawalla judgment are a step in the right direction, the Supreme Court’s failure to recognise the context in which the current spate of lynchings are occurring leads to the conclusion that far more is required to be done in order to assure minorities of their rights. Yet, the solution cannot be restricted to the enactment of fresh laws, for as is evident from the murder of Inspector Subodh Kumar Singh and the subsequent abysmal reaction of the Uttar Pradesh government, much of the problem lies in politics.

Abhishek Kumar

Delhi

Updated On : 1st Mar, 2019

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