New law for mob lynching will drain legislative time, SC order an open invitation to further politicise situation | Firstpost

Op-Eds by Judicial Reforms · July 17, 2018
Author(s): Sumathi Chandrashekaran

The Supreme Court on Tuesday issued detailed directions to the Centre and state governments on controlling incidents of mob-lynching, and asked that a law be created against lynching. In its 45-page judgment, the three-judge bench of the apex court headed by Chief Justice Dipak Misra spent three dozen pages illuminating us on the undesirability of vigilantism; that lynching incidents were on the rise because the rule of law had failed in our country; and that we had lost sight of the idea of “unity in diversity” (in specific response to cow vigilantism). The meat of the judgement lay in the last 8-9 pages or so, containing specific directions on preventive, remedial and punitive measures that governments should take up to tackle such incidents.

It is easy to digress into a comment on the quality of the judgement itself, of how judges need to abandon the thesaurus, and focus on the actual substance of the directions they seek to issue. But we shall keep that for another day.

A few minor quibbles jump out on a primary reading of the judgement. For example, the court asks government to create a separate offence and punishment for lynching (through a special law), so as to “instill a sense of fear for law amongst the people who involve themselves in such kinds of activities”. This rests on the presumption that deterrence through legislation works, but sadly, the court offers no evidence to support it. Indeed, there is enough literature in legal and policy studies to counter this. There are scores of provisions already available in Indian criminal law that could be used to prosecute and convict those involved in lynching incidents; all these laws exist to deter. The judgement does not attempt to engage with the question as to why these existing laws did not work, nor try to explain how a new law would work better than the existing laws (other than the concluding passing reference to the presumed power of deterrence).

Criminal laws in India have, anyway, been extremely poorly thought out. My colleagues have documented at least 350 laws currently on the statute book that criminalise something or the other, many of which appear to be either superfluous, redundant, or unused.

Creating a new offence, or a new law, especially when laws to generally prevent and preempt such crimes already exist, is nothing more than a waste of legislative time. If a new law were created, it would be followed by the expectation that enforcement authorities will waste further time and resources into putting this law in action. This becomes an open invitation for the issue to get further politicised, and ought to be avoided entirely.

The court also recommends designating fast track courts to resolve the cases relating to lynching incidents. There is no proof to suggest that fast track courts are the solution to poor enforcement or low rate of deterrence or high criminality. Besides, there is a strange incongruity in the judiciary recommending the creation of fast track courts using fast track processes — for it amounts to an admission of its own failures as a satisfactory justice-delivery mechanism.

Finally, the preventive measures that the court lists are designed to identify and prosecute individuals. In doing so, the court fails to recognise that mob lynching is actually a crowd behaviour problem, and not an individual-driven effort. Arguably, the solutions to tackling mob- lynching lie in sociological and psychological theory, in understanding the characteristics of crowd behaviour, and identifying ways in which enforcement authorities can use existing laws, powers and tools, to prevent crowd behaviour from going out of control.

Arguably, also, there is a failure on the part of the court to recognise that uncontrolled and violent crowd behaviour itself is often the outcome of several other factors, such as illiteracy, poverty, and unemployment. This is further exacerbated by predatory politicians who use these demographics, alongside a pliable law enforcement system, to their advantage. The solution to the problem, surely, ought to lie in fixing the root cause of the problem (i.e., education, employment, etc.), and not in targeting the manifestation of the problem (i.e., crowd behaviour) through punishment. But this is a long term solution.

There are other things that could be done in the short term. The Supreme Court should have explicitly asked states to use technology to solve the problem. States need to be made to recognise that using technology to solve crowd behaviour does not mean resorting to an internet shutdown and restricting access to social media. Instead, states should be encouraged or even required to invest more in law enforcement; use domain expertise to understand why and when crowd behaviour takes on such forms; and make policing more efficient using technology, not just by increasing policemen per capita. There are already efforts afoot to fix the “fake news” challenge, but even the police themselves may need to be educated about digital and network technologies, and how they can be exploited. Counter-measures need to go beyond responses such as patrolling “vulnerable” areas, or shadowing suspicious persons, or holding meetings with local intelligence units, which is what the Supreme Court appears to have identified.

Besides this, of course, the police need to be trained in crowd management itself. Understanding how mob-lynching works requires training and expertise in social sciences beyond merely criminology or forensic sciences. Police training academies need to actively introduce curriculum focusing on such other specialisations.

A better-equipped, more intelligent enforcement mechanism working within the existing legislative and judicial system will be far more valuable and effective in addressing concerns of lynching. Burdening a weak system, penury-stricken in financial and other terms, with understanding and implementing a new law, is not going to help. Lawmaking itself ought to be a last resort, and not a first response, as our legislators are wont to imagine. One would have expected the Supreme Court to be more reasonable and practical about this.

The author is a senior resident fellow at Vidhi Centre for Legal Policy

Originally Published:

About Sumathi Chandrashekaran:

Sumathi Chandrashekaran is a lawyer working in the field of public policy. She has previously worked at Vidhi as a Senior Resident Fellow and led our Judicial Reforms Vertical. Sumathi has completed her LLB from Delhi University, and a post-graduate course in public policy from Lee Kuan Yew School of Public Policy, National University of Singapore.