Mob lynching: Provisions Under BNS

Author: Gupta Aryan Rajesh

Editor: I Sharan

Introduction

Diamond is the most expensive element in the world but the life of a person is more precious and invaluable in the world. Mob means group of people and lynching word is derived from the name of Charles Lynch who punished the offender without the due trial. In an era where dozens of laws and Acts apply to different crimes in almost every country this crime rate hasn’t decreased instead, it has increased daily. Mob Lynching is a punishable offence in some countries whereas in some countries it is not. In layman’s language, mob lynching means the act of a group of people who brutally kill the suspected person who is deemed to be cow vigilantism and caste & religion-based vengeance. Mostly this type of lynching takes place due to a lack of literacy and education of social knowledge, it mostly occurs in rural areas where the beliefs of the people are preferable more than their laws. They took laws into their hands not only to punish but to torture the victim and then kill it. Well, the rights of the victim were also infringed under Articles 14, 19, and 21 of the Constitution of India and the people who do lynching are also liable for their acts against the Constitution of India.

The term Mob Lynching was not included in any separate section in the Indian Penal Code nor it was defined separately which acts are included in mob lynching in the Bhartiya Nyaya Sanhita (BNS)- replaced the Indian Penal Code on 1st July 2024. Union Home Minister Amit Shah said in the parliament at the time of Introducing the Bhartiya Nyaya Sanhita (BNS) Bill, 2023: “There has been a lot of talk about mob lynching. We have carefully ensured that the punishment for mob lynching is seven years, imprisonment for life, or even death. All three provisions are there in cases of mob lynching.”[1]There have been so many cases in the last decade where the victims were brutally killed by the mob on the presumption or suspicion as well as on misunderstanding.

Keyword: mob lynching, section 103(2), Bhartiya Nyaya Sanhita, extra-judicial punishment, hate crime, section 302

Meaning, Definition & Explanation

Mob Lynching is a grievous act done by a group of people i.e. mob. They kill the victims by taking the law into their hands believing that they performed something wrong. The violence is against the human body on the belief or sometimes suspicion of doing any wrongful act. Earlier the punishment for the mob lynching for the killing of the victim was given under section 302 of the Indian Penal Code while after the implication of the new Act i.e. Bhartiya Nyaya Sanhita, 2023 on the 1st day of July 2024 the punishment for the murder by the mob was given under the separate section 103(2) of the BNS, “when a group of five or more person acting in concert murders on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground, each member of such a group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine”[2]. The interpretation of section 103(2) of BNS,2023 is; When the group of five or more people murders anybody on the basis or grounds of race, caste or community, sex, place of birth, language, personal belief or any other ground will be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fine. Section 103(2) of BNS will only be applicable if the victim died by five or more persons. In another case, if the group of people is fighting against the other group of people then the consequences of murder arising from that fighting will not considered as mob lynching.

Sub-clause 4 of Section 117 (voluntarily causing grievous hurt) provides, “when grievous hurt of a person is caused by a group of five or more persons on the ground of his, race, caste, sex, place of birth, language, personal belief or any other ground, each member of such group shall be guilty of the offence of causing grievous hurt, and shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”.[3] If the group of five or more persons caused the grievous hurt then Section 117(4) of BNS comes into play. It is pertinent to note that the punishment for murder is death or imprisonment for life, and shall also be liable to fine as per section 103(1) of BNS. In comparison, the punishment of murder by the mob is given u/s 103(2) which is the same.

The question arises that if the murder is done by the mob then all the people involved in it will be punished with death or imprisonment of life and a fine.

It is the question of law and it depends on the charge sheet. It is pertinent to note that in a country like India, some people also come in the charge sheet of police who were at the time of lynching present there, and due to the misinformation the innocent also become the prey of the murder in the charge sheet.

Mob Lynching is a distinct offence

Earlier mob lynching was not recognized as a distinct offence in Indian Penal Code whereas now it is recognized as a distinct offence under Bhartiya Nyaya Sanhita, 2023. As per BNS, the punishment for mob lynching was mentioned under sections 103(2) and 117(4). Before going ahead it is important to know that if there is not an assembly of five or more person in doing the common act then it is not considered mob lynching, whereas in the Bhartiya Nyaya Sanhita, 2023 special provisions are there for unlawful assembly which is mentioned under the section 189(1). The mob lynching is a hateful act against the Muslim cattle trader, intercaste marriage. Sometimes it spreads due to rumours from social media, and political statements between the people. Mostly it is against the backward class of people, theft, robbery, and murder of minors. Therefore to prevent all this and to protect the right of the innocent or victim the distinct provisions in Bhartiya Nyaya Sanhita was included.

Comparison with other provisions

The victims in the mob lynching were not allowed to give their defence to the mob as the mob at that time was mostly doing hateful acts in the heat of anger. Sometimes in that situation, the lives of innocent people also come into danger. Therefore mob lynching is considered a hate crime in all the states of the country. To prevent all this there are other distinct provisions or acts in some states. Manipur in the year 2018 implemented its separate Act which is Manipur Protection from Mob Violence Act, 2018 against the crime of mob lynching. The punishment for the convict of mob lynching is life imprisonment. It includes the establishment of special courts for speedy trials, the role of police in the prevention of incidents, and also compensation schemes for the families of the victims. Similarly, Rajasthan implemented – the Rajasthan Protection from Lynching Act, of 2019. Which includes life imprisonment or up to 7 years imprisonment if the hostile environment is created for lynching for the convict. Appointment of a nodal officer and the establishment of a special task force for the district level. The special provisions are there for the protection of witnesses and compensation to the families of the victims. West Bengal implemented the Act in the year 2019- West Bengal (Prevention of Lynching) Act, 2019. It includes the punishment or imprisonment of life or additional penalties for those who create a lynching environment. In this state nodal officer is appointed to monitor and to prevent mob violence. It also includes the compulsory compensation to the families of the victims. Whereas in BNS there is the prescribed punishment for not only life imprisonment but also liable for death penalty. In the above separate Acts of Lynching not in the single Act, there is the provisions for the death penalty for this type of hate crime. Therefore the implementation of the Bharatiya Nyaya Sanhita plays a game changer role in the prevention of the hatred crime in the country due to its high degree of punishment.

Case Laws

The recent case was about the Palghar incident in Maharashtra. In this case, the mob at large attacked two sadhus and their driver at Palghar at night on 16th April 2020. The mob lynching was done due to the spreading of humour and fake messages around WhatsApp between the villagers due to which they were influenced and believed Sadhus the child lifters they assaulted the two Sadhus.

This shows how people are influenced by fake messages on WhatsApp and take the law into their own hands just for the sake of punishing the accused. But they don’t know the full facts of the situation or the person to whom they were going to assault and kill the innocent one. Therefore the special or distinct section in BNS for the punishment for those mobs is the key change in the history of India.

The discussion of mob lynching without the case law of Tehseen Poonawalla v Union of India and Ors. (2018) is like reading a topic without meaning. The Poonawalla case was a landmark case in the field of mob lynching. In this case, the Supreme Court of India issued guidelines for preventive, punitive, and remedial measures. The court held that there must be appointment of a nodal officer in each district which must be not below the rank of Superintendent of Police. If it is likely to be the situation that such type of incident will happen then a special task force should be appointed to that area.[4]

CONCLUSION & COMMENTS

The inclusion of distinct punishment or provisions for the mob lynching in the Bhartiya Nyaya Sanhita, 2023 was a great step taken towards the prevention of not only such type of crimes but also affected in the mind of the people not to take any such steps to punish the accused or not to come into the influence of any such social media post and WhatsApp messages. Well, it is to be noted that after the implication of the BNS, we can see a decrease in the number of crimes in the country.

REFERENCES

  1. Online Articles / Sources Referred
    1. https://www.hindustantimes.com/india-news/proposed-law-in-india-introduces-death-penalty-for-mob-lynching-offenders-replacing-colonial-era-penal-code-101691781909920.html
    2. https://nualslawjournal.com/2024/04/22/criminalisation-of-mob-lynching-under-the-bhartiya-nyaya-second-sanhita-2023/
    3. https://indiankanoon.org/doc/71965246/
    4. https://www.drishtiias.com/daily-news-analysis/mob-lynching-4

 

  1. Cases Referred
    1. Palghar Mob Lynching case (2020)
    2. Tehseen S. Poonawalla vs Union Of India (AIR 2018 SC 3354)
  2. Statutes Referred
    1. Bhartiya Nyaya Sanhita, 2023
    2. Constitution of India, 1950
    3. Manipur Protection from Mob Violence Act, 2018
    4. Rajasthan Protection from Lynching Act, 2019
    5. West Bengal (Prevention of Lynching) Act, 2019

[1] Hindustan Times, https://www.hindustantimes.com/india-news/proposed-law-in-india-introduces-death-penalty-for-mob-lynching-offenders-replacing-colonial-era-penal-code-101691781909920.html, (Last visited 05/08/2024)

 

[2] Bhartiya Nyaya Sanhita, 2023. Sec 101(2)

[3] Bhartiya Nyaya Sanhita, 2023. Sec 117 (4)

[4] Tehseen S. Poonawalla vs Union Of India, AIR 2018 SC 3354