Mob lynchings and judicial independence seem inter-related because 97 per cent of lynchings took place after Narendra Modi was sworn in as Prime Minister of India, and 86 per cent of those lynched were Muslims. Significantly, home minister Rajnath Singh has been compelled to agree to an anti-lynching law only after the opposition stormed the well of the house during zero hour in the Lok Sabha on Wednesday.
However, the Modi government opposed the collegium’s reiteration of Uttarakhand chief justice K M Joseph for elevation to the Supreme Court and also Aniruddha Bose from the Calcutta high court as chief justice of the Delhi high court on the specious ground that he lacks the experience to handle a premier high court. However, Delhi high court’s first woman chief justice Gorla Rohini too was not a chief justice of a “premier” high court before she took her oath of office.
Despite the Supreme Court having declared in 2015 the National Judicial Appointments Commission Act as ultra vires the Constitution, it is the Modi government which still has the last say on who will become a Supreme Court judge or a chief justice of the 24 high courts. And also what laws to enact in Parliament.
This may imply the right to life of the gentle cow overrides the right to life of the Indian Muslim, which is proven by the fact that the Alwar police in Rajasthan chose to take two cows to a gaushala 10 km away before taking over three hours to transport a badly-thrashed Rakbar Khan to a community health centre in Ramgarh six kilometres away.
When there is a collision between the two, the Qureshi Muslims and other minorities erroneously assume their right to life and livelihood overrides the right to life of the gentle cow, when the converse is true. With the Modi government having the last word on judicial appointments, the judiciary may be wary of hurting the religious sentiments of the majority.
After all, the gentle Indian cow provides companionship and sustenance to devotees by supplying milk which yields ghee, cheese, shrikhand, dahi, paneer and also life-sustaining drugs, with on-going research on the benefits of practicing the cat-cow Kundalini yogic asana to cleanse vile humans of emotional debris. Some judges emulate Narenda Modi who is a yoga aficionado and whose mental and physical agility at the age of 67 proves the ideology of the majority overrides those of the minorities.
Nevertheless, the utterances of politicians like All India Majlis-e-Ittehad-ul Muslimeen or AIMIM president Asaddudin Owaisi who publicly declared that Prime Minister Narendra Modi’s tenure was a “lynch raj” needs to be evaluated in the background of Union minister Jayant Sinha who publicly garlanded those who lynched Muslims transporting cows.
The National Campaign Against Mob Lynching (NCAML) has drafted a bill known as the Manav Suraksha Kanoon (MASUKA) with a specific provision to amend the existing Article 21 of the Constitution to criminalise mob violence. This will include rumour-mongering and spreading hate. The NCAML’s draft Protection from Lynching Act, 2017 defines, for the first time in Indian legal history, the terms ‘lynching’, ‘mob’ & ‘victim’ of mob lynching.
It makes lynching a non-bailable offence, suspension of a station house officer mandatory for allowing a mob of 100 or more to lynch anybody, criminalises incitement on social media, and stipulates that adequate compensation be paid, within a definite time-frame, to victims and survivors. It also guarantees a speedy trial and witness protection, making those who were part of the lynch-mob liable to face life imprisonment.
This progressive law equates mob-lynching with rape of minors and pre-planned murder. Unfortunately, nobody takes seriously the need to amend Article 21 to protect brutality against helpless animals. The proposed amendment can read as follows:
Article 21-A. Rights of living creatures: No living creature, whether animal or human shall be deprived of its life or personal liberty except according to procedure established by law.
With this proposed amendment, the right to life of cows will be equated with all Indian citizens to ensure abattoirs go out-of-business and the majority of Indian citizens are forced into vegetarianism which will ensure their longevity and impose an additional burden on the national exchequer with the burgeoning population.
At present, mob-lynching is covered under Sections 302 (murder), 307 (attempt to murder), 323 (causing voluntary hurt) 147 (rioting), 148 (rioting armed with deadly weapons) and 149 (unlawful assembly) of the Indian Penal Code, 1860 which has proved ineffectual in curbing crime, let alone heinous crimes like mob-lynching where it is difficult to pinpoint all those who were part of the mob.
The primary argument of the activists and lawyers advocating an anti-lynching law is that it fills a void in our criminal jurisprudence. It is possible, under Section 223 (a) of the Criminal Procedure Code (CrPC), to simultaneously prosecute two or more people accused of the same offence committed in the course of the “same transaction”. But this provision cannot be used to prosecute lynch-mobs.
In the first six months of 2017, 20 cow-terror mob attacks were reported, which was the worst year for such violence since 2010. These murders by mobs until June 2017 comprised 75 per cent of lynchings in 2016. In two attacks, the victims were chained, stripped and beaten to death in front of huge mobs, while in two others, the victims were hanged.
And so, India is faced with a situation where the Narendra Modi government decides which laws to enact and also selects those who interpret these laws to ensure the beliefs of the majority override those of the minorities.
Olav Albuquerque holds a Ph.D in law and is a journalist-cum-lawyer of the Bombay high court.