Communal Violence and The Law

I. Introduction

In the past 5 years, communal violence has garnered a lot of public attention but do we understand the matrix behind this violence?

Communal violence refers to a collective form of violence between different religious groups, sects, tribes of the same religious group and clans. Historically, we have witnessed innumerable incidents of communal brutality in the past including the Protestants clash with Catholics and the Christians clash with Muslims. Communal violence has been a part of the Indian history as well, there are many instances of religious tensions between Hindus and Muslims, Hindus and Buddhists, Shia and Sunnis, and Mughal and Satnamis. When the British came to India, they adopted the divide and rule policy which resulted in the partition of Bengal intended to separate people in the different ethnic and religious group which further encouraged communal conflicts in India. The horrific past of communal disparity was used by the British for their benefit which led to their successful colonization and suppression of Indians socially, economically, politically and legally.

In the current times, it is used by political parties, groups for promoting their propaganda and as a tool for their vote bank. As per a news report, there is a 41% increase in mob lynching and communal violence in 2016, 2017 and 2018². Majority of these cases are reported from Uttar Pradesh, Maharashtra and Madhya Pradesh are states.³ Manipur was the first state in India to make laws related to Mob lynching followed by Rajasthan and West Bengal. ⁴ In 2019 USCIRF (US Commission on International Religious Freedom violation and progress have put India in tier 2 for mob lynching and communal violence.⁵

Communal Violence is practiced in different forms and there are various reasons behind these forms. These forms, in some cases, lead to communal violence at a mass level such as the Babri Masjid demolition case. The prominent forms of communal violence include the following:

a) Unlawful Assembly

b) Riots

c) Mob Lynching

According to Section 141 of the Indian Penal Code, the definition of Unlawful Assembly is mentioned as “an assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is

1. To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legis­lature of any State, or any public servant in the exercise of the lawful power of such public servant; or

2. To resist the execution of any law, or of any legal process; or

3. To commit any mischief or criminal trespass, or other offence; or

4. By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

5. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do. Explanation. —An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.”⁶

In some cases, the unlawful assembly further leads to mob lynching or communal violence like Pehlu Khan case.

According to section 146 of IPC, the definition of Rioting is explained as “whenever force or violence is used by an unlawful assembly or by any member thereof, in the prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting.⁷ Thus, it can be stated that an unlawful assembly may become a riot when they achieve the motive for which they assembled. In most of the cases, the motive is to create terror in the minds of the people, disturb law and order, disturb the peace and communal harmony which exist in society and because of which a clash between two communities or groups is created.

Currently, there are is a dearth of adequate laws on mob lynching. Mob Lynching literally refers to an incident where a group of persons want to penalize someone without a proper trial of law because they believe that person has committed any crime and in that outrage of anger and hate the group of people beat or kill the person whom they think is the culprit. In India, there are many landmark cases of mob lynching which became a national issue like the Palghar Lynching case in which 2 Sadhu and one driver were killed by a mob of 300 to 400 because people assumed that they were kidnapping children.⁸

II. Reasons behind Communal Violence

Communal violence occurs due to multiple primary and secondary reasons. The common primary reasons which lead to communal violence are:

1. Caste and Religion– In India, religion and caste play an important role in provoking communal violence. There are many cases of mob lynching recorded in India, which were based on religion. In India, communal violence on the basis of caste and religion is not new. Some of the major instances of communal violence which were based on religion and caste are as follows:

a) Partition of India – One of the reasons behind the partition of India was the communal clash between multiple religious communities. The partition of India was prominently because of the religious disparities. These disparities exist in the current times as well.

b) Babri Masjid demolition in Ayodhya –In this, a group of individuals mainly belonging to the Hindu community destroyed the property of the historical Babri Mosque in Ayodhya in the state of Uttar Pradesh. The incident was followed by wide scale communal violence in Mumbai and other parts of India. Some estimates claim that about 2,000 people were involved in such destruction and the core reason behind this mass destruction was religion which leads to huge conflict between the two different religious communities.⁹

c) Bethani Tola massacre – The main factor behind this massacre was caste and religion. A group belonging to Ranveer Sena, one of the upper castes of Bihar, attacked Banthnani Tola a village near Gaya in Bihar and in that attack; they killed Dalit and Muslim villagers.¹⁰

2. Child Abduction – The rumours of child-lifting in the country are leading to brutal incidents of mob lynching. Dozens of people were killed across the country, on the suspicion that they were child-lifters, these types of suspicions were fuelled by the rumours circulated on various social media platforms. A man was lynched in Tripura over the suspicion of him being a child abductor. Ironically, the man lynched in was employed by Information and Culture Department of the government to make citizens aware of the fake ongoing rumours of child lifting¹¹. This incident exposed the lack of law and order in the region. Mob violence over child-lifting rumours has become an ominous trend.

3. Cow Vigilantism – Killing of people in the name of cow protection is known as Cow Vigilantism. Cow slaughtering is banned in some of the states but it is practised illegally in those states. Due to rumours of slaughtering of cows and beef consumption, people who are traders of cows are hurt or killed by the mob in the misunderstanding that they are taking cows for slaughtering. According to IndiaSpend, 84% of the people murdered in the name of cow vigilantism between 2010-2017 were Muslims.¹² Last year a cattle trader in UP was beaten to death over rumours of cow slaughter¹³ and then a famous Bulandshahr incident which attracted international attention when a frenzied mob attacked a police outpost in Bulandshahr district of Uttar Pradesh over the discovery of cow carcasses in which inspector Subodh Singh was killed. The state government termed the incident a conspiracy, but the question remains the same¹⁴. The states of Jharkhand, Uttar Pradesh, Rajasthan and Haryana have the highest number of cases related to cow vigilantism.

Additionally, the secondary reasons which support the primary reasons. These secondary reasons further these religious disparities and caste differences which lead to communal violence. Some of the reasons are as follows:

1. Hate Speech by any political leader or an influential person.

2. In the age of social media where information spreads like a wildfire, not every piece of information is factually correct. People prefer social media for most of their news and information, often making decisions or forming viewpoint based on fallacious information. Social media has transformed the traditional model of communal violence. Today, a local communal conflict can be made an issue of national importance in a matter of seconds due to the outreach of such information.

3. Failure of law and order to control the outbreak of communal violence and the failure of the judiciary to punish the victims.

III. Statues and bills relating to communal violence

India doesn’t have a proper legal framework and system for the delivery of justice on communal violence despite the increasing rate. This may be due to the resistance from the political leaders, delay in procedure, systemic issues in the police, tampering of evidences, delay by the police in filing charge sheet in court and delay by the police in lodging a complaint amongst others.

Apart from the ones mentioned above, the statues and provisions which are currently referred by the legal system of India in communal violence case or mob lynching or riots include the following:

a) Section 144 of the Code of Criminal Procedure¹⁵- This authorizes the district magistrate to issue an order which will abstain any sort of assembly of 5 or more people an area. The section also puts restriction on carrying any type of weapon in that area where section 144 is imposed and if any unlawful assembly is found, then all the member of unlawful assembly can be booked for engaging in riots.

b) Section 129 of the Code of Criminal Procedure¹⁶- This gives power to the magistrate or an incharge of a police station to use civil force for stopping any unlawful assembly in an area which is intended to disturb peace and harmony of the society.

c) Section 153A of the Indian Penal Code¹⁷- This is referred for registering an FIR in mob lynching cases. To use Section 153A of the IPC was said by the Supreme Court of India in a judgement of Tehseen S. Poonawalla vs Union of India.

In the absence of specific laws, these general laws are referred. However, there are some bills which are pending in the parliament and some states have passed their laws for regulating communal violence and mob lynching.

A. The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005¹⁸

In 2005, UPA led govt introduced this bill in the Rajya Sabha on Dec 5, 2005. This bill aims at preventing and controlling communal violence, to provide speedy investigation, speedy trials, and restoration of victims’ property and health. The key features of the bill include the following:

1. The bill defines communal violence as any act of omission or commission which is a scheduled offence, and which is punishable under Section 19 of the Bill.

2. Section 19 of the Bill explains that anyone who commits or omits an act which constitutes a scheduled offence at a level which can create an internal disturbance within any part of the state and if the act also threatens the secular fabric, unity, integrity, or internal security of the nation is said to commit communal violence.

3. The bill talks about scheduled offences which are sections of different laws. The bill includes sections from

a) Indian Penal Code, 1860

b) Arms Act, 1959

c) Explosive Act, 1884

d) Prevention of Damage to Public Property Act, 1984

e) Religious Institutions (Prevention of Misuse) Act, 1988

4. This Bill includes a provision which gives power to the state government to take all

necessary measure to control communal violence. Some of the important provisions are

mentioned below:

a) State Government can declare any area as communally disturbed if a scheduled offence is committed against any group, caste, or community, which results in death or destruction of property, a conflict between two groups or a threat to the internal security of the state.

b) If a District Magistrate has any apprehension of Communal Violence or any type of conflict between two groups, class in any area under his jurisdiction which will lead to disruption of existing peace in the society, then he/she, as the competent authority in that area can declare it as a communally disturbed area.

c) The competent authority can issue notification to the public for depositing weapons even if they hold a license for that weapon.

d) The competent authority can regulate unlawful assemblies and movement of common public in the communally disturbed area.

e) The state government can form a review committee to investigate cases in which charge sheet has not been filed within 3 months of registering a FIR and state government can constitute SIT to investigate offence if the case is not investigated fairly and impartially.

f) State Government can establish a special court for the trial of scheduled offences and it also gives power to the state government to establish an additional special court outside the state for an impartial and fair trial.

g) Communal Disturbance Relief and Rehabilitation Council will be formed at national, state and district level. The aim behind establishing a council is to issue guidelines on relief, rehabilitation, and compensation to victims.

h) A special fund will be constituted in every state for the council and a victim assistance fund will be established in every district.

i) The central government on the discretion of state government can deploy armed forces to control communal violence.

j) Central government can direct necessary action to the state government, which can control communal violence.

k) The officials of the state government are responsible for communal violence if they fail in exercising their power in controlling communal violence.

The bill is pending in the parliament since 2005.

B. The Rajasthan Protection from Lynching Act, 2019¹⁹

Rajasthan Govt passed a law for regulating mob lynching in August 2019. Rajasthan is one of the states with large number of mob lynching cases. Some of the important provisions of this Act are mentioned below:

1. The Act defines mob as a group of two or more individuals and in the bill, lynching is defined as act or series of acts of violence or those of aiding, abetting or attempting an act of violence, whether spontaneous or preplanned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation or ethnicity.

2. If the victim suffers grievous hurt and injury, then the culprit can get upto 10 years of imprisonment and a fine of Rs 25,000 to 3,00,000 rupees. If the victim suffers a simple injury, then the culprit will get up to 7 years of imprisonment and a fine upto 1 lakh rupees.

3. If someone is accused of conspiring, aiding, or attempting mob lynching then the Act will penalize the accused in the same manner as if he committed the offence of lynching.

4. The Act gives authority to the state police chief to appoint a state coordinator at the rank of Inspector General of Police for preventing the case of mob lynching.

5. As per the Act, the victim will get compensation as per the Rajasthan Victim Compensation Scheme.

C. The Manipur Protection from Mob Violence Act, 2018

1. In this Act, Mob lynching is defined as an act where a group of two or more persons perform any act of violence or they aid any spontaneous or planned violence on the grounds of religion, race, sex, place of birth, language, dietary practice, sexual orientation, political affiliation or ethnicity.

2. The act makes mob violence/lynching a cognizable, non-bailable and non-compoundable offence.

3. State government can appoint a nodal officer and nodal officer needs to form a special task force.

4. The cases of mob violence/lynching should not be investigated by an officer below the rank of Sub-Inspector.

5. The state government shall form a victim compensation scheme in the lights of section 357A of the Code of Criminal Procedure Code 1973. The compensation scheme should have a provision concerning the payment of compensation to be paid within 30 days of the incident.

6. State can setup relief camps if the offence has led to displacement of more than 50 persons.

7. This act makes government official accountable if the officials fail in preventing mob lynching/violence. Such officer can be penalized for negligence in his duty with imprisonment of one year to three year and with a fine up to Rs50,000.

8. State Government can establish special courts for the trail.

9. It is the duty of state government to protect the victim and witness form coercion, threat etc.

10. FIR of mob violence/lynching should be registered under 153A of the Indian Penal Code, 1860.²⁰

In 2018, Government of India formed a committee headed by Rajiv Gauba for suggesting measures to restrain the cases of mob lynching in India, but the government has not implemented the recommendation yet. The recommendations made by the committee are as follows:

a) All the social media platforms like Facebook, WhatsApp, YouTube etc need to control the spread of fake news and posts.

b) Action will be taken against the officer who is not able to comply with the order of the government.

c) The entire social media platform will be accountable if they are not blocking malicious post and videos or fail to comply with the government order.

IV. Judicial precedents on communal violence

In India, hundreds of cases of communal violence are registered and thousands of people have been severely injured or lost their lives in communal violence. Some of the incidents which occurred in India were horrifying and we can see the fear of communal violence in the eyes of the victims who faced communal violence and somehow managed to save their lives. Some of the cases which horrified the society and created religious disparity among the people of India are explained below:

1. Godra Riots

The burning of 58 innocent lives and most of them were Hindus. According to reports, the starting point of one of the deadliest communal riots in the Indian history, barbarism and carnage of Muslims that followed the train burning incident shook the world. In response to this, the Hindu extremists started targeingt the Muslim population, houses were brunt, anti-Muslim slogans were raised, holy places related to Muslims were insulted, shops were looted and women were raped. The two-month rampage resulted in the killings of an estimated 1,000 people, around 2,500 were injured, some 20,000 Muslims home and businesses and around 360 places of worships were destroyed. The violence that was unleashed jolted the secular fabric of the nation.²¹

2. 1984 Sikh Riots

Her two Sikh bodyguards killed former Prime Minister of India Mrs. Indira Gandhi on October 31st, 1984. Hours after her demise, Delhi and different urban communities with the Sikh population witnessed. Over the next few days, horrific mass killings of Sikhs were reported. The massacre of 1984 is the most noticeably awful human catastrophes India had confronted. In this violence, thousands of Sikhs became homeless, were abused and were killed including women and children in various parts of the country. This was the first communal violence which was directly linked to a political party and the Indian legal system took 34 years in penalizing the accused. ²²

3. Hasimpura Tragedy

This tragedy included brutal slaughter of 42 Muslims by the PAC (Provisional Armed Constabulary) at Meerut in 1987. It was one of the biggest cases of custodial killing in Indian history. More than 700 Muslims, including innocent children, senior citizens were handpicked, loaded on a truck and were beaten up. 19 constables of the PAC shot 42 Muslims blooded and disposed of the dead bodies in the canal near Hindon river. The summer of the year 1987 was one of the worst incidents of communal hatred and the inaction of the government. It was the deadliest communal violence of the city.²³

4. Tehseen S. Poonawalla v. Union of India &Ors²⁴

In 2018, Supreme Court 3 bench laid down guidelines for curbing extra-judicial acts like mob lynching, cow vigilantism, communal violence in the writ petition by a social activist Tehseen Poonawala. The three-judge bench was headed by former Chief Justice Dipak Misra. It laid guidelines covering preventive, remedial and punitive measure for preventing mob lynching cases. The bench has also recommended the parliament to pass a law on mob lynching as a separate offence.

a) Preventive Measures

i. States will appoint a nodal officer, not below the rank of superintendent of police in each district. The officers appointed will set up a task force which will be assisted by one DSP rank officer in preventing a mob lynching and violence. These officers will make reports on people who are involved in committing crimes like mob lynching and cow vigilantism.

ii. State government will identify districts and villages which have recently reported cases of mob lynching and violence. This process of identification should be completed in 3 weeks from the date of judgement.

iii. The nodal officer should hold a meeting with local intelligence units in the districts and the officer has to identify the tendency of vigilantism and mob violence.

iv. The Director General of police or the secretary of the home affairs department should conduct a meeting at least once a quarter. They should hold a review meeting with all the nodal officers and senior officers of the state police intelligence.

v. Superintendent of police will patrol in the sensitive area where mob lynching and vigilantism cases have been reported.

vi. The central government shall advise appropriate measures and actions to the state government

vii. Police should register FIRs under section 153A of the IPC.

viii. Central and state government should take necessary steps in controlling hate messages and videos which instigated communal violence.

b) Remedial Measures

i. Compensation scheme for mob lynching/violence should be prepared by the state government in lights of section 357A of the Criminal Procedure Code, 1973.

ii. FIR on incidents of mob violence or lynching incidents should be lodged immediately.

iii. The investigating officer should immediately inform the nodal officer about the incident and the officer should also ensure that the family of the victim should not face any harassment.

iv. The nodal officer should ensure an efficient and effective investigation is being carried out and the charge sheet is filed within the statutory period.

v. A compensation scheme should be prepared by the state government for the victims.

vi. Cases of mob violence/lynching should be trailed by designated courts and the trial should be completed within 6 months.

vii. A maximum sentence should be awarded to the accused if found guilty for setting an example, in case of mob lynching/violence.

viii. Identity of the witness should be concealed for their protection.

c. Punitive Measures:

i. If it is found that a police officer or any other government official failed to fulfill his/her duties in following the order of the court, it will be considered as an act of deliberate negligence and misconduct. This order states the measures and action which will ensure speedy trial of the case and it will also facilitate that the victims are given justice, compensation on time without any delay.

ii. In case it is found that any officer who was aware and had information about a probable violence and did not prevent the incident of violence, then appropriate action will be taken against such officer.

iii. At any place where the occurrences of communal violence have recently occurred and the authority did not expeditiously start criminal procedures against the offenders at that point, then appropriate action should be taken against officers who oversaw that place.

V. Drawbacks of legal system in india

a) Partiality in Investigation – If communal violence happens in any part of the world and if there is partiality in the investigation, justice will never be achieved. This impartiality may be reflected when the police does not take immediate action against the accused, police tries to destroy the evidence, investigation of police is not up to the mark or it is somehow biased then it can affect the judiciary and the victim will not be able to get justice.

Another example could be the Tabrez Ansari case in which the victim was charged for a crime which he did not commit, and he was not provided with proper medical facilities.

b) Unable to deliver Justice – When communal violence or mob lynching occurs police is unable to identify the main accused. This delays investigation and/ or filing of the charge sheet. This ultimately leads to a delay in the delivery of Justice.

c) Delay by Legislation- There is a delay in law making for communal violence by the legislature. In India’s case bill related to mob lynching and communal violence is pending for more than 14 years and country like the US which is a superpower took 200 years in making a law which penalizes the act of communal violence.

VI. Conclusion and recommendations

From this research, the author concludes that the main factor behind communal violence and mob lynching is the hustle for communal superiority in terms of religion, race and caste. If people disbelieve the system of religion, caste and race then communal violence can be controlled. The other main factor which leads to communal violence is the disbelief of people in law and order.

As discussed above, the delay by police in the investigation and the delay by the judiciary in penalizing the accused has created disbelieve on the judiciary in the minds of people because of which people try to take the law and order in their control which leads to mob lynching and further communal violence.

If we want to stop the cases of communal violence in India then the Government should take some key initiatives. The author suggests the following:

a) Government should make a proper law for penalizing an act of communal violence.

b) Government should take initiatives to reduce the social disparity which exists in society.

c) Hate Messages or Fake news, which is spread on WhatsApp, Facebook or any other social media platform needs to be regulated because all the messages which are spread on these apps manipulate the thought process of a person which furthers hatred in their mind of the public. There are many registered in India in which mob lynching and communal violence was backed by a piece of fake news. For example – News related to beef, which hurts the sentiments of people.

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Footnotes

1. Author is a student at NMIMS School of Law, Bangalore, India.
2. Mukesh Ranjan, Communal violence cases up 41% in 3 years: NCRB, THE TRIBUNE, July 26, 2017. ↩
3. Id. ↩
4. Meenu Katariya, Rajasthan becomes the second Indian state to have a law against mob lynching, THE SCOOPWHOOP, August 06, 2019. ↩
5. USCIRF Statement on Mob Lynching of Muslim Man in India, UNITED STATES COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, June 26, 2019. ↩
6. The Indian Penal Code 1860, No. 45, Acts of Parliament, 1860 (India), sec. 141. ↩
7. The Indian Penal Code 1860, No. 45, Acts of Parliament, 1860 (India), sec. 146. ↩
8. Press Trust of India, Palghar lynching happened after child-lifting rumour: Maharashtra Home Minister, THE INDIAN EXPRESS, July 16, 2020. ↩
9. Ayodhya dispute: The complex legal history of India's holy site, BBC, November 9, 2019. ↩
10. Anand Chakravarti, Who Killed at Bathani Tola?, THE INDIAN EXPRESS, January 18, 2016. ↩
11. Press Trust of India, Prime Accused of Tripura Mob Attack on Sukanta Chakraborty Arrested, NDTV, July 06, 2018. ↩
12. Apeksha Duhan, Cow Vigilantism: Are we becoming murderers in the name of religion, MYINIDA, November 28, 2018. ↩
13. Press Trust of India, Bulandshahr violence over cow slaughter: killed inspector probed Akhlaq case, THE ECONOMICS TIMES, December 04, 2018. ↩
14. Aditi Vatsa, Bulandshahr cop murder prompted UP Law Panel to draft stringent bill on mob lynching, THE PRINT, July 12, 2012. ↩
15. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, sec. 144. ↩
16. The Code of Criminal Procedure, 1973, No. 2, Acts of Parliament, 1974, sec. 129. ↩
17. The Indian Penal Code 1860, No. 45, Acts of Parliament, 1860 (India), sec. 153A. ↩
18. The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005, Bill No. CXV, (2005). ↩
19. The Rajasthan Protection from Lynching Act, 2019. ↩
20. The Manipur Protection From Mob Violence Ordinance, 2018, Manipur Ordinance No. 3 of 2018, https://manipur.gov.in/wp-content/uploads/2016/05/mobviolence.pdf. ↩
21. Asghar Ali Engineer, Gujarat Riots in the Light of the History of Communal Violence, EPW, Dec. 14-20, 2002, pp. 5047-5054. ↩
22. Anti Sikh Riots, https://en.wikipedia.org/wiki/1984_anti-Sikh_riots. ↩
23. Abhinav Gard, 31 yrs, 16 get life for Hashimpura Killings, TIMES OF INDIA, November 1, 2018. ↩
24. Tehseen S. Poonawalla v Union of India and Ors, (2018) 9 SCC 501 (India). ↩