By Ritabrata Roy and Triman Goel

October 12, 2021

PART 1

“It may be true that the law cannot make a man love me, but it can stop him from lynching me, and I think that’s pretty important.”

                                                                                                        ― Martin Luther King Jr.

1.INTRODUCTION

Largely during the last five years, among other instances of aggravated violence particularly upon the religious minorities in India, the phenomenon of mob-lynching has significantly managed to create its niche. Recent reports suggest that this method of violence has become extremely popular among the masses in the sub-continent, especially in the wake of recent events of communal violence nationwide. According to reports, 2018 recorded the largest number of mob lynching cases between the years 2015-19, when the tally was more than 50 in the year itself.[1] In wake of the alarming rise of these incidents, the Supreme Court of India in 2018 prescribed some strict guidelines to curb these incidents in future. The core issue of this study is to analyse the elements of patriarchal communityhonour, which is arguably one of the primary motivations behind the phenomenon. I will argue that mob-lynching is a specific category of honour crimes and thereby, will make a strong case for implementing the 242ndReport of the Law Commission of India towards enacting a specific provision on honour crimes within the Indian Penal Code 1860.[2]Such a provision, in my opinion, should encompass the subject of mob lynching by mainly focussing on the honour-based motivations of the crime. I further believe that such a comprehensive enactment will be a commendable step towards implementation of the Supreme Court’s guidelines in the TehseenPoonawalla judgment.[3]

2.INCIDENTS OF MOB LYNCHING AND THE TEHSEEN POONAWALLA GUIDELINES

2.1 The cases

The usage of mob-lynching as a form of so-called ‘retributive justice’ in the eyes of certain sections of the society is not an alien concept to the Indian subcontinent. However, in my opinion, the alarming reality that needs to be highlighted here is the sharp increase of the number of cases, especially in the last five years. Coupled with the volume of the incidents, the sheer magnitude of public brutality involved therein has compelled civil society and the judiciary alike to rethink about the measures to curb these incidents.

In my view, it is imperative to present a brief background to a few of such spine-chilling incidents of mob-lynching that shook the moral conscience of the country recently.

The Shahrukh Khan Case: In this case, a 20-year-old man was lynched by an angry mob on the suspicion of trying to steal a buffalo. The incident happened in the state of Uttar Pradesh on August 29, 2018.

About a year later, on June 18, 2019, a similar gut-wrenching incident from the state of Jharkhand again came to the forefront. Popularly known as the Tabrez Ansari case, the incident in which a young man who was alleged to have stolen a motorcycle was lynched by a mob. The victim died on June 22, four days after the incident. The video evidences of the incident revealed that the mob had forced the victim to chant some jargons of the dominant religious community in India, thereby communalizing the incident, making it a highlight in the popular discourses in the media circuit for days to come.

Within a couple of months, several other incidents of mob violence were reported in different parts of the country. One such widely reported was the Beena Devi case from the state of Uttar Pradesh, where a 50-year-old woman was brutally attacked on suspicions of child-lifting on August 26, 2019. The state of West Bengal reported an incident on July 26, 2019, where a Muslim boy (Faiz) was beaten to death by the family of a tribal girl, who was in a relationship with the deceased.

2.2 Statistics

Table A, provided below presents a graphical representation of the year-wise reported cases of mob-lynching across the country from 2015 to 2019.

TABLE A

2.3 Major characteristics of theTehseenPoonawalla guidelines

In the wake of these incidents, social activist TehseenPoonawalla and Tushar Gandhi moved the Supreme Court of India in 2018, seeking judicial interference to curb the magnitude of the growing menace.[4] In a landmark judgment pronounced by a three-judge bench headed by the then Chief Justice of India (Deepak Mishra, J) A.M Khanwilkar and Dr. D.Y. Chandrachud, JJ was highly critical about the growing incidents of mob-lynching across the country. Expressing grave concerns, the bench called for a complete overhaul of the law enforcement system to this regard.[5]The guidelines suggest creation of a special task force (STF) to procure intelligence reports on subjects likely to commit or incite such offence. Further, the Director General of Police and Secretary of Home Department of the States were directed to take regular meetings at least once a quarter with all nodal officers and State Police Intelligence Heads.[6] Regular police patrolling was also suggested as a complementing method to provide the necessary intelligence on the subject to STF.

With regards to the legislative methods, the court recommended that the Parliament enact a specific legislation directed towards the offence of mob-lynching with adequate punishment for the same.

2.4 Critically analysing the guidelines

2.4.1. Open-ended terminologies

Previous studies have revealed complex discrepancies in these guidelines from both policy-making and implementational standpoints. However, in my opinion the most striking feature that sticks out as a sore thumb, is the prolific use of open-ended terminologies throughout the guidelines. For the purpose of study, it appears to me that the court has not restricted the applicability of the guidelines only to the phenomenon of mob-lynching.

In this context, I wish to argue that, the impugned guidelines provide for an excellent opportunity to comprehensively implement the guidelines on honour crimes proposed by the 242nd Report of the Law Commission of India,along with the guidelines given in the Shakti Vahini judgment.[7] However, for doing that, firstly, we need to characterize certain kinds of mob lynching as manifestations of honour crimes.  In the forthcoming sections, I will first try to categorize the acts of mob-lynching as a specific form of honour crimes. Thereafter, I will try to make a case for comprehensive implementations of the aforementioned recommendations and guidelines.


PART 2

3. MOBLYNCHING: A SPECIFIC FORM OF HONOR CRIMES?

At the outset, let us go back to the different incidents of mob lynching that I have discussed in section 2. A closer analysis of these cases will reflect a variety of motivations behind these violent acts. In these four instances, while three of them reflect a stain of communal violence involved, one was rather a manifestation of discontentment with the existing law and order system. A recent study has claimed that majority of the mob lynching acts since 2015 are mostly motivated by communal disharmony. In these cases, the victims mostly belonged from the minority communities.

The core argument of my present study is that, most of the cases of mob lynching in India are violent manifestation of the so-called ‘protection’ of family or community honour which effectively brings them within the broader ambit of honour crimes or honour-based violence (HBV). For the purpose of this claim, I will argue for giving a broad interpretation of the term ‘honour’. However, to elaborate this claim further, let me first critically discuss the concept of honour crimes, particularly from a motivational aspect.

3.1 Honour Crimes: Concept and Motivations

Honour crimes are commonly defined as, “acts of violence, usually murder, committed by male family members against female family members who are perceived to have brought dishonor upon the family.” Mainstream literature on the subject have reflected upon the nature of the ‘honour’ involved in these crimes, as patriarchal community or family honour. Discussing this point, Phyllis Chesler has observed that, a family/community honour is often associated with the chastity/purity of a woman. Therefore, “female chastity and fertility is considered a family-owned asset that no individual woman dares to claim as her own.”[8] As Safia Heidi rightly summarized that it is the collective patriarchal community honour that is usually borneby the women of the community. Even the slightest perceived taint to suchhonour is washed away with retributive violent retaliations such as killing of the victim and other forms of honour violence.[9]

3.2 Feeling of collective shame and anger

The mainstream literature on the subject has often charactarized ‘honour crimes’ as a retributive means of redeeming collective institutional shame. Erving Goffman notes that, ‘shame’ is an outcome of embarrassing interactions with the society, which can both be temporary and permanent/institutional.[10] With regards honour crimes, it is institutional honour that works as the motivating factor.[11] Further, it has been noted that the honour offenders often work as a group, trying to clean/preserve their community honour as a unit, by acting violently against the victim who is perceived to have maligned it.[12]

It is this collective feeling of honour/shame that makes the honour crimes unique. Thus, a closer look at the cases worldwide would reveal the intrinsic involvement of the extended family members or the community members of the victim in planning and executing the act. MazherIdriss of Manchester Metropolitan University points out that the strong sense of bond (brotherhood) among the community members in a closely knit society ignites a sense of retributive compulsiveness among them, to retaliate violently against the victim even in the slightest threat to such honour.

Interestingly, such collective feeling of honour (pride) and shame is visible within different communities across the world, having certain cultural identities similar to each other. For e.g. in a recent incident in Berlin, a young Turkish girl was murdered by her cousins after she had tried to escape the possibility of a forced marriage. It was found out that the entire family had conspired for the act.

Similarly, among the Pashtun community in Afghanistan, the community honouris violently protected (usually) by the male members of the community (collectively) by punishing anybody who is presumed to have maligned the same.[13]

Therefore, the phenomenon of redemption through retribution, reflects a strong manifestation of collective institutional honour, as Goffman has previously pointed out.[14]

3.3 Collective sense of honour in mob lynching

In my opinion, the act of mob lynching at a motivational level presents intrinsic similarities to that of honour crimes. Leaving the political discourses concerning the phenomenon aside, if we investigate the motives behind the act of mob lynching, a strong sense of immediate threat to the collective honour of the group concerned, coupled with an urgency of violent redemption, is clearly visible.

Both Shahrukh and Faiz’s incidents reflect the same. For instance, Shahrukh’s alleged act of trying to steal a buffalo (which is considered pious by members of the community in question), was readily perceived to be a threat to the collective feeling of religious honour and was redeemed in the form of a violent retaliation. Faiz’s death rather presents a template case of honour killing emerging out of a disapproved inter-faith relationship. Here, the act of entering into a relationship with a girl from a different community was perceived to be dishonorable by the girl’s family/community members, worthy of a violent retaliation in the form of honour killing.

The above discourse, therefore, makes it clear that the acts of mob lynching largely reflect similar intrinsic traits of honour crimes to the extent that in my opinion, the former can be regarded as a specific species of the former genus. This line of argument is pitched by Mark Walters in his extensive literature on hate crimes, where Walters frequently argues in favour of an integrated paradigm of honour and hate crimes.[15]

4. LEGAL REFORMS SUGGESTED

4.1 The judiciary-proposed reforms relating to honor crimes

Within the legal parlance, the issue of honour crimes has been doing the persisting rounds in the reformative discourses for a long time. The urgency of the situation is so grave that the Supreme Court on numerous occasions has recommended an amendment in the Indian Penal Code to include a separate section or a subsection within the existing provisions on murder dedicated to honour crimes.

Time and again, the apex court has also called for enactment of strict punishments (including capital punishment) for these barbaric practices. In BhagwanDass v. State (N.C.T.) of Delhi,[16]Katju, J observed that,

“In our opinion honor killings, for whatever reason, come within the category of rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilized behaviour. All persons who are planning to perpetrate ‘honor’ killings should know that the gallows await them.”

Similar recommendations have been made by the Law Commission of India, back in 2012, in its 242nd Report where clear recommendations are made to amend the existing provisions of the Indian Penal Code, 1860 to the extent of including a sub-section within the provisions of Sections 300 and 302 to include a specific provision dedicated to honor crimes. It also called for enactment of a specialized legislation vis-à-vis “Prohibition of Unlawful Assembly (Interference with the Freedom of Matrimonial Alliances) Bill, 2011”. This proposed law is directed towards prohibition of khap panchayats, labelling them as ‘unlawful assemblies’.Such recommendations have been reviewed and approved by the judiciary in Shakti Vahini v. Union of India and Ors.[17] In this case, the judges went to the extent of giving specific state-wise directions for legislative amendments to combat the menace of honour crimes.

4.2 Progress towards implementation

Despite the Supreme Court’s directions and sheer urgency of the implementation, unfortunately no significant progress has been made yet by either the union government or the respective state governments towards implementing the Law Commission recommendations. However, it is noteworthy that some of the states such as Tamil Nadu has constituted dedicated ‘anti-honor killing cells’. But the enactment of a new dedicated law still appears to be a distant dream. Demand for such a legislation has often been criticized by the government, because of its potential of being misused.Analysts, however, have often pointed out that the unfettered influence of vote bank politics entrusted with the local khap panchayats, is one of the core reasons behind this lackluster attitude on behalf of the legislature.

4.3 Anti-mob lynching guidelines: A similar fate?

As seen in section 2.3, in the TehseenPoonawalla Case(supra),[18] the Supreme Court has categorically laid down some explicit guidelines to prevent the heinous acts of mob lynching from happening in future. Such measures include,setting up of Special Task Force (STF), regular monitoring of the situation, meetings between the top brass of the police force and the legislatures and finally enactment of a dedicated legislation. However, within the last couple of years, despite the sharp increase in the number of incidents of mob violence, no significant measures have been adopted by the legislatures or the executive to implement these aforesaid guidelines. Even more heartbreaking is the recent reluctance among the judiciary to seek update on the matter. In  June 2020, a petition, filed before the Jharkhand High Court, seeking responses from the state government on the implementation of the Tehseen S. Poonawalla guidelines, was rejected on technical grounds. Interestingly, a similar petition is pending before the Supreme Court for the last two years.

The irony of the matter is that in theTehseenPoonawalla case(supra), due to the urgency of the issue, the court had made many of the guidelines as time-bound. The court observed that,

“horrendous acts of mobocracy cannot be permitted to inundate the law of the land” and “earnest action and concrete steps have to be taken to protect the citizens from the recurrent pattern of violence which cannot be allowed to become ‘the new normal’.”[19]

However, it seems that the sense of urgency has now somewhat fizzled out.

4.4 The opportunity and the right time to seize it

Throughout the discussions till now, we have seen how both phenomena of mob lynching and honour crimes, despite their alarming increase, has been somewhat pushed to the sidelines in the present scheme of things. However, in my opinion, this scenario presents an excellent opportunity to comprehensively curb both these practices simultaneously.

I have already established that at least on a theoretical premise, how mob lynching can be regarded as a manifestation of honour crimes. Having these similarities of the salient features at the backdrop, I believe that the time has come to enact a comprehensive legislation targeting both these practices.

Such legislation, in my opinion, will have to treat the act of mob lynching as a form of  honour crime, focusing on the motivational aspects of the crime. By doing so, it will have to define the concept of ‘honour’ in an open-ended manner, so as to encompass different forms of violence committed in the name of it, either explicitly or implicitly.

This form of legislation will also do away with the shortcomings of the proposed monotoned form of template honour crimes, largely involving an unapproved relationship. It is noteworthy that the legislation, that is proposed by the Law Commission of India, primarily focusses on such template form of honour crimes, thereby rather ignoring allied issues such as homosexuality, hate crimes and others as forms of honour crimes. I believe that this integrated approach is essential because both mob lynching and honour crimes have gradually become global phenomena at present. India is gradually rising higher up the ladder as far as the global rates of these crimes are concerned. It is interesting to note, that these crimes are presently viewed from a multi-dimensional standpoint globally, while India lags behind in that quotient. 

Ritabrata is principal founder of ‘The Dailogue Box’, a Doctoral Tutor and a PhD researcher at University of Sussex, United Kingdom. He has also been working as an Assistant Editor at Manchester Journal of Transinslamic Law and Practices since 2019. His research interests lie in areas such as honour based violence, gender studies and male victimology.

Trimanis a student at Lloyd Law College.


[1]Refer to Table A in section 2.2.

[2]Tehseen S Poonawalla v Union of India & Ors [2018] Supreme Court of India WRIT PETITION (CIVIL) NO. 754 OF 2016, SCC.

[3]ibid.

[4]M Mohsin Alam Bhat, Vidisha Bajaj and Sanjana Arvind Kumar, ‘The Crime Vanishes: Mob Lynching, Hate Crime, and Police Discretion in India’ [2020] Jindal global law review.

[5]Tehseen S. Poonawalla v. Union of India & Ors. (n 3).

[6]ibid.

[7]Shakti Vahini vs Union of India and Ors [2018] Supreme Court of India Writ Petition (Civil) No. 231 of 2010, 7 SCC 192.

[8]Phyllis Chesler, ‘Are Honor Killings Simply Domestic Violence?’ (2009) 16 Middle East Quarterly G1.

[9]Veena Meetoo and Heidi Safia Mirza, ‘“There Is Nothing ‘Honorable’ about Honor Killings”: Gender, Violence and the Limits of Multiculturalism’ (2007) 30 Women’s studies international forum 187.

[10]Erving Goffman, Stigma : Notes on the Management of Spoiled Identity (Harmondsworth : Penguin 1990).

[11]ibid.

[12]Lynn Welchman and Sara Hossain, ‘Honor’ : Crimes, Paradigms, and Violence against Women (Zed Books 2005).

[13]Yasmin Jiwani, ‘Posthumous Rescue: The Shafia Young Women as Worthy Victims’ (2014) 7 Girlhood studies 27.

[14]Goffman (n 13).

[15]Mark Austin Walters and Jessica Tumath, ‘Gender “Hostility”, Rape, and the Hate Crime Paradigm’ (2014) 77 Modern law review 563.

[16]Bhagwan Dass  v State (NCT) of Delhi [2011] Supreme Court of India Criminal Appeal No. 1117 of 2011, 6 SCC 396.

[17]Shakti Vahini vs. Union of India and Ors (n 10).

[18] Tehseen S. Poonawalla v. Union of India & Ors. (n 3).

[19]ibid.

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