by Harsh Mander
Six months have passed since the Supreme Court — anguished by what it described as ‘horrific acts of mobocracy’ — issued a slew of directions to the Union and State governments to protect India’s ‘pluralist social fabric’ from mob violence. The court felt compelled to act in the shadow of four years of surging hate violence targeting religious and caste minorities. It also urged Parliament to consider passing a law to combat mob hate crime.
The Union and most State governments have done little to comply with the directions of India's highest court. But Manipur became the first to pass a remarkable law against lynching, late last year. It did this after a single horrific video-taped lynching of a Muslim youth with an MBA degree stirred the public conscience.
Comprehensive in definition
The Manipur law closely follows the Supreme Court’s prescriptions, creating a nodal officer to control such crimes in every State, special courts and enhanced punishments. But its weighty significance lies in that it breaks new ground in some critical matters concerning hate violence in India, and shows the way in which the Union and other governments need to move if they are serious about combating hate crimes.
Its definition of lynching is comprehensive, covering many forms of hate crimes. These are “any act or series of acts of violence or aiding, abetting such act/acts thereof, whether spontaneous or planned, by a mob on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity or any other related grounds .…”
The law, however, excludes from its provisions solitary hate crimes. For the law to apply instead it requires that these hate crimes are undertaken by mobs (defined as a group of two or more individuals, assembled with a common intention of lynching), thereby excluding from its provisions solitary hate crimes. When we look back at the last four years, the majority of hate crimes were indeed by mobs of attackers and onlookers, but we also saw solitary hate murders, such as of the Bengali migrant Mohammad Afrazul in Rajasthan. This restriction of numbers is arbitrary, since the essence of what distinguishes these kinds of crimes is not the numbers of attackers but the motivation of hate behind the crimes; therefore, provisions of this law should apply to all hate crimes, not just lynching, regardless of the numbers of persons who participate.
On the public official
The most substantial and worthy contribution of the law is that it is the first in the country dealing with the protection and rights of vulnerable populations which creates a new crime of dereliction of duty of public officials. It lays down that “any police officer directly in charge of maintaining law and order in an area, omits to exercise lawful authority vested in them under the law, without reasonable cause, and thereby fails to prevent lynching shall be guilty of dereliction of duty” and will be liable “to punishment of imprisonment of one year, which may extend to three years, and with fine that may extend to fifty thousand rupees”.
Equally pathbreaking is that it removes the protection that is otherwise extended to public officials charged with any offence committed while acting in their discharge of official duty. At present, no court can take cognisance of such an offence except with the previous sanction of the State government. The Manipur law means that now no prior sanction is required to register crimes against public officials who fail in their duties to prevent hate crimes such as lynching.
In almost every incident of hate crime that the Karwan e Mohabbat, a campaign of solidarity for victims of such crimes, has investigated, the police acted brazenly in ways that would have been deemed crimes by public officials if a law such as the Manipur law had been in force. They arrived late deliberately, or watched even as the crimes were under way without restraining the mobs; they delayed taking those injured to hospital and on occasion even ill-treated them, ensuring their death; and after the hate crimes, they tended to register criminal cases against the victims and to defend the accused.
If police officers knew that they could be punished for these crimes (which would also put them at risk of losing their jobs), it is very unlikely that they would have acted in this way. They would have prevented, or stopped in their tracks, these hate crimes, and protected the victims.
I would also include in the crimes of dereliction of duty deliberately protecting criminals during investigation after the hate crime. I would also, most importantly, incorporate command responsibility, so that officials and also those who have directed them to betray their constitutional duties are criminally liable..
The second momentous contribution of the Manipur law is that it does away with the requirement of prior state sanction before acting on a hate crime. All hate crimes today should attract Section 153A of the Indian Penal Code, which is related to fostering enmity between people on the basis of religion, race, language and so on. But registering this crime requires prior permission of the State government, and most governments use this power to shield perpetrators of hate crimes who are politically and ideologically aligned to the ruling establishment. The Manipur law does away with this requirement, which would make acting against hate crimes far more effective and non-partisan.
The third substantial feature is that it clearly lays down the duty and responsibility of the State government to make arrangements for the protection of victims and witnesses against any kind of intimidation, coercion, inducement, violence or threats of violence. It also prescribes the duty of State officials to prevent a hostile environment against people of the community who have been lynched, which includes economic and social boycott, and humiliation through excluding them from public services such as education, health and transport, threats and evictions.
Rehabilitation
The last substantial contribution of the law is requiring the state to formulate a scheme for relief camps and rehabilitation in case of displacement of victims, and death compensation. Again, in most cases of lynching, we have found that States have only criminalised the victims, never supported the survivors who live not just in loss and fear, but also in penury.
But the law needs to prescribe a much more expansive framework of mandatory gender-sensitive reparation on an atonement model, requiring the state to ensure that the victim of hate violence is assisted to achieve material conditions that are better than what they were before the violence, and that women, the elderly and children are supported regularly with monthly pensions over time.
Even with these caveats, the Manipur government has broken new ground, being the first government in the country to hold public officials criminally accountable if they fail to prevent hate crimes. If emulated by the Union and other State governments, such a sterling law could substantially prevent hate attacks, ensure public officials are faithful to their constitutional responsibilities and victims, and that their families and communities are assured of protection and justice.
This is the India we must claim — of safety, fairness and fraternity.
Harsh Mander, a human rights worker, writer and teacher
Acknowledgement: This article was originally published in The Hindu on 17 Jan 2019.
