Giving the Law Away into Cow Vigilantes’ hands

This is a guest post.

As recently as a month ago, a Muslim man was lynched to death in Nasik by six men on suspicion of cow slaughter. Two weeks later, another Muslim man was lynched to death by cow vigilantes on suspicion of carrying beef. There have been various instances of mob lynchings against minorities in Maharashtra since 2015, especially in the name of cow protection. While the police have heightened security in Nasik post the incidents, a Maharashtra Assembly Speaker issued a highly problematic direction to the police to ensure that Gau Rakshaks are protected against fabricated cases. The Assembly Speaker’s statement is not without substance and neither is this a case of mere lawlessness. The Maharashtra Animal Preservation Act, 1960 (“Act”) was introduced to protect cattle and other animals that are occupationally beneficial to humans. This very legislation has become a safe harbour for vigilantes who resort to mob lynching. 

Section 13 of the Act has the potential to facilitate violence by providing immunity to anyone acting in good faith. Section 13 states that “No suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith done or intended to be done under this Act or the rules made thereunder”. The terms “person” and “good faith” remained undefined in the statute leading to an ambiguous and vague provision. 

The question of the constitutionality of the good faith provisions in the anti-cow slaughter statute was brought up in the case of Tehseen Poonawala v Union of India. One of the prayers of the activist-petitioner was to declare the good faith principles of anti-cow slaughter legislation as unconstitutional. The Apex Court declared that they would not be dealing with the question of constitutionality of the good faith provisions, but did not give any reason for the same. The Apex court condemned mob lynching and ended the judgement with preventive, remedial and punitive measures which had to be enacted by the State Government and implemented by the Police. The preventive measures included the appointment of Nodal Officers, strategizing the prevention of mob violence, and prevention of the dissemination of hate speech against minority communities. The remedial measures included the protection of victims and their families, victim compensation, speedy trial and free legal aid. Punitive measures included disciplinary actions against negligent officers who fail to execute their duties.

The Maharashtra Government released two resolutions for Preventive, Remedial and Punitive Measures and Police directions in 2018 and 2022 which are severely lacking for several reasons. First, many guidelines mentioned in the Supreme Court judgement were missing, especially for remedial measures. Remedial measures including victim compensation, speedy trials, ensuring severe punishment for the offenders, protection and concealment of the identity of witnesses, timely notice to the kin of the deceased and free legal aid to the victim were missing in both the Government Resolutions. 

Second,the guidelines from 2018 and 2022 were not comprehensive enough for the protection of individuals. For instance, Guideline 3 of the 2018 Government Resolution states that the Nodal Officer present should take special care of Castes and Tribes which are prone to harassment by mob violence. This guideline did not consider the social dynamics of Maharashtra – that many of the mob lynchings filed under the Act are against Muslim.

Third, the 2018 guidelines also give extensive powers to the police to take action against persons spreading inflammatory messages. The term inflammatory has not been defined and the police have disproportionate powers to file an FIR against persons under section 153 of the Indian Penal Code, 1860. 

Fourth, the 2022 guidelines mention the strategies for preventing mob lynchings and mob violence against individuals. The first guideline of 2022 mentions that the presence of any weapons found during protests and demonstrations shall be presumed to be an intention to commit violence. The mob lynchings in the previous month were not a result of protests or demonstrations but the interception of Muslim men by cow vigilantes. Therefore, it is unclear why a Government Resolution for the prevention of mob lynchings and mob violence contains provisions for protests and demonstrations. The guidelines also speak extensively about damage to property and digitalization of registration and status reports of the incidents. However, very little thought is given to solutions to prevent mob violence and to remedy the victim. 

Lastly, the implementation of the guidelines has been poor. Two incidents in the same district highlight the fact that vulnerable areas have not been identified and the guidelines have not been implemented. Many other mob-lynching incidents have taken place against minorities throughout Maharashtra in the past few months. The Nodal Officers have failed to take charge to implement the guidelines for identification of vulnerable areas, patrolling of areas and training of the Special Task Forces for prevention of mob lynchings.

There is an immediate need to revise the law and policy and improve their implementation to prevent mob lynching against individuals. The Act and the Guidelines should only promote the protection of cattle against slaughtering, and the protection of humans against mob lynching. For this the Maharashtra Government must:

1. Amend section 13 of the Act to preclude the possibility of misuse by cow vigilantes or the government. The terms “good faith” and “person” need to be defined and exceptions to the provision need to be identified accordingly.
2. Provide special protection to farmers, breeders and meat suppliers belonging to the minority communities including the Muslim Community should be, as they are most prone to being harassed by cow vigilantes. 
3. Issue comprehensive guidelines to prevent violence, punish the perpetrators, and ensure victim welfare. The guidelines need to be contextualised according to the politics, social dynamics and history of Maharashtra.

This blog has been written by Aarti Singh, an intern with the Vidhi, Maharashtra. Aarti is a 5th year student at Jindal Global Law School.