The supreme court had the occasion to speak on mob lynching in the case of ‘Tahseen Poonawalla v. Union of India (2018), when a writ petition was preferred before the court against the mob lynching on the suspicion of cow slaughtering. Below written words are from the said judgment.
Lynching by unruly mobs and barbaric violence
“Lynching is an affront to the rule of law and to the exalted values of the Constitution itself. We may say without any fear of contradiction that lynching by unruly mobs and barbaric violence arising out of incitement and instigation cannot be allowed to become the order of the day. Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order.
These extrajudicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic. The tumultuous dark clouds of vigilantism have the effect of shrouding the glorious ways of democracy and justice leading to tragic breakdown of the law and transgressing all forms of civility and humanity. Unless these incidents are controlled, the day is not far when such monstrosity in the name of self-professed morality is likely to assume the shape of a huge cataclysm.
Direct violation of the quintessential spirit of the rule of law
It is in direct violation of the quintessential spirit of the rule of law and of the exalted faiths of tolerance and humanity. Mob vigilantism and mob violence have to be prevented by the governments by taking strict action and by the vigil society who ought to report such incidents to the state machinery and the police instead of taking the law into their own hands. Rising intolerance and growing polarisation expressed through spate of incidents of mob violence cannot be permitted to become the normal way of life or the normal state of law and order in the country.
Good governance and nation building require sustenance of law and order which is intricately linked to the preservation of the marrows of our social structure. In such a situation, the State has a sacrosanct duty to protect its citizens from unruly elements and perpetrators of orchestrated lynching and vigilantism with utmost sincerity and true commitment to address and curb such incidents which must reflect in its actions and schemes.
Right to life and liberty is paramount
In a rights based approach to constitutional legitimacy, the right to life and liberty is considered paramount and, therefore, democratic governments must propel and drive towards stronger foothold for liberties so as to ensure sustenance of higher values of democracy thereby paving the path for a spontaneous constitutional order. Crime knows no religion and neither the perpetrator nor the victim can be viewed through the lens of race, caste, class or religion. The State has a positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race, caste, class or religion.
The State has the primary responsibility to foster a secular, pluralistic and multi- culturalistic social order so as to allow free play of ideas and beliefs and co-existence of mutually contradictory perspectives. Stifling free voices can never bode well for a true democracy. It is essential to build societies which embrace diversity in all spheres and rebuild trust of the citizenry in the State machinery.
Lynching and mob violence are Typhon-like monster
Lynching and mob violence are creeping threats that may gradually take the shape of a Typhon-like monster as evidenced in the wake of the rising wave of incidents of recurring patterns by frenzied mobs across the country instigated by intolerance and misinformed by circulation of fake news and false stories. There has been an unfortunate litany of spiralling mob violence and agonized horror presenting a grim and gruesome picture that compels us to reflect whether the populace of a great Republic like ours has lost the values of tolerance to sustain a diverse culture.
Besides, bystander apathy, numbness of the mute spectators of the scene of the crime, inertia of the law enforcing machinery to prevent such crimes and nip them in the bud and grandstanding of the incident by the perpetrators of the crimes including in the social media aggravates the entire problem. One must constantly remind oneself that an attitude of morbid intolerance is absolutely intolerable and agonizingly painful.
Lynching, at one point of time, was so rampant in the United States that Mark Twain had observed in his inimitable style that it had become “the United States of Lyncherdom“. The sarcasm is apparent.
In the obtaining situation, the need to preserve and maintain unity amongst the fellow citizens of our country, who represent different castes, creed and races, follow different religions and use multiple languages, ought to be discussed and accentuated. It is requisite to state that our country must sustain, exalt and celebrate the feeling of solidarity and harmony so that the spirit of oneness is entrenched in the collective character. Sans such harmony and understanding, we may unwittingly pave the path of disaster.
Rights of the citizens cannot be destroyed in an unlawful manner
law provides a procedure for arrest and equally for investigation and the consequential trial. That is what has been interpreted by this Court while dealing with Article 21 of the Constitution. Thus, the rights of the citizens cannot be destroyed in an unlawful manner. As the investigating agency has to show fidelity to the statutory safeguards, similarly, every citizen is required to express loyalty to law and the legal procedure. No one, and we repeat no one, is entitled to take the law into his own hands and annihilate anything that the majesty of law protects.
When the vigilantes involve themselves in lynching or any kind of brutality, they, in fact, put the requisite accountability of a citizen to law on the ventilator. That cannot be countenanced. Such core groups cannot be allowed to act as they please. They cannot be permitted to indulge in freezing the peace of life on the basis of their contrived notions. They are no one to punish a person by ascribing any justification. The stand and stance put forth in the interlocutory applications filed by the impleaded parties intend to convey certain contraventions of the provisions of statutory law but the prescription of punishment does not empower any one to authorize himself to behave as the protector of law and impose punishment as per his choice and fancy. That is the role and duty of the law enforcing agencies known to law. No one else can be permitted to expropriate that role.
It has to be clearly understood that self-styled vigilantes have no role in that sphere. Their only right is to inform the crime, if any, to the law enforcing agency. It is the duty of the law enforcement agencies and the prosecutors to bring the accused persons before the law adjudicating authorities who, with their innate training and sense of justice, peruse the materials brought on record, follow the provisions of law and pass the judgment.
In the scheme of things, the external forces cannot assume the role of protectors and once they pave the said path, they associate themselves with criminality and bring themselves in the category of criminals. It is imperative for them to remember that they are subservient to the law and cannot be guided by notions or emotions or sentiments or, for that matter, faith.
But, by putting forth a stand that they are spreading awareness, they really can neither affect others’ fundamental rights nor cover up their own illegal acts. It is simply not permissible. In fact, it has to be condemned as an act abhorrent to law and, therefore, it has to stop. Their activities are to be stopped in entirety. There is no other alternative. What is illegal cannot commend recognition or acceptance.
American Authorities on Lynching
We may now refer to some of the authorities of the American Courts which have dealt with the menace of lynching which, at one point of time, was very rampant in the American society. The American Courts deplored this menace and dealt it with iron hands so as to eradicate the same.
Ex parte Riggins[1] was a case involving the lynching of a Negro citizen who had been imprisoned on the charge of murder. While he was imprisoned in jail, the mob removed him and lynched him by hanging. Thereafter, certain mobsters involved in the said hanging were indicted. A petition of habeas corpus was filed seeking the release of the said mobsters on the ground that there was no law in the United States which legalized the indictment of the said mobsters. While disposing of the said habeas corpus petition and upholding the indictment, Thomas Goode Jones, J. made the following relevant observations: –
“When a private individual takes a person charged with crime from the custody of the state authorities to prevent the state from affording him due process of law, and puts him to death to punish the crime and to prevent the enjoyment of such right, it is violent usurpation and exercise, in the particular case, of the very function which the Constitution of the United States itself, under this clause [the 14th Amendment] directs the state to perform in the interest of the citizen.
Such lawlessness differs from ordinary kidnapping and murder, in that dominant intent and actual result is usurpation and exercise by private individuals of the sovereign functions of administering justice and punishing crime, in order to defeat the performance of duties required of the state by the supreme law of the land.
The inevitable effect of such lawlessness is not merely to prevent the state from performing its duty, but to deprive the accused of all enjoyment, or opportunity of enjoyment of rights which this clause of the Constitution intended to work out for him by the actual performance by the state of all things included in affording due process of law, which enjoyment can be worked out in no other way in his individual case.
Such lawlessness defeats the performance of the state’s duty, and the opportunity of the citizen to have the benefit of it, quite as effectually and far more frequently than vicious laws, or the partiality or the inefficiency of state officers in the discharge of their constitutional duty. It is a great, notorious, and growing evil, which directly attacks the purpose which the Constitution of the United States had in view when it enjoined the duty upon the state.”
In Wilson v. Garcia[2] , the Supreme Court of the United States referred to the debates of the Parliament while enacting the Civil Rights Act of 1871 which are relevant in the present context and read as follows:-
“While murder is stalking abroad in disguise, while whippings and lynchings and banishing have been visited upon unoffending American citizens, the local administrations have been found inadequate or unwilling to apply the proper corrective. Combinations, darker than the night that hides them, conspiracies, wicked as the worst of felons could devise, have gone unwhipped of justice. Immunity is given to crime, and the records of public tribunals are searched in vain for any evidence of effective redress.”
Thus, the decisions of this Court as well as the authorities from other jurisdictions clearly show that every citizen has to abide by the law and the law never confers the power on a citizen to become the law unto himself or take law into his hands. The idea is absolutely despicable, the thought is utterly detestable and the action is obnoxious and completely hellish.
It is our constitutional duty to take a call to protect lives and human rights. There cannot be a right higher than the right to live with dignity and further to be treated with humanness that the law provides. What the law provides may be taken away by lawful means; that is the fundamental concept of law. No one is entitled to shake the said foundation. No citizen can assault the human dignity of another, for such an action would comatose the majesty of law.
In a civilized society, it is the fear of law that prevents crimes. Commencing from the legal space of democratic Athens till the legal system of modern societies today, the law makers try to prevent crimes and make the people aware of the same but some persons who develop masterly skill to transgress the law jostle in the streets that eventually leads to an atmosphere which witnesses bloodshed and tears. When the preventive measures face failure, the crime takes place and then there have to be remedial and punitive measures. Steps to be taken at every stage for implementation of law are extremely important. Hence, the guidelines are necessary to be prescribed.”
Reference
Tahseen Poonawalla v. Union of India, (2018)
[1] (C.C.N.D. Ala., 1904) 134 Fed. 404
[2] 471 U.S. 261 (1985)