/ Governance / Analysis of MASUKA, Protection from Lynching Act, 2017

Analysis of MASUKA, Protection from Lynching Act, 2017

Peoples Voice on July 14, 2017 - 3:39 pm in Governance, Reforms

Protection from Lynching Act, 2017 [1]

Niranjan Milind Deshpande
BSL, LLB, DCL, Advocate, Mumbai

Niranjan Milind Deshpande[2]

So as to bring an approach of rule of law not by rule by law majors like this draft presentation followed by a nationwide, non-political dissent[3] is necessary for democracy and diversity to flourish. The development of law also demands a welcoming approach of people and larger public interest acts as strong support at times of enactments.

The objective and scope of The Protection from Lynching Act, 2017 is to protect Constitutional rights of vulnerable persons, to punish acts of lynching, to provide for Special Courts for the expeditious trial of such offences, for rehabilitation of victims of lynching and their families and for matters connected therewith or incidental thereto. The committee for drafting of The Protection from Lynching Act, 2017 (Act), elaborated its view and demanded all party support and presentation of this bill as private member bill if it takes. It condemns the death and injury of person at the hands of lynching mob.

The elaborative way developed to use “any perceived legal, societal and cultural norms or prejudices” phrase is used to make a stringent provision against the divide which arises due to political, social, cultural and economic upsurges. But, societal, prejudices and norms fill up the vacuum with respect to time and circumstances. Although it hardly paves a definite way in calling the particular crime “mob lynching”, it establishes that there was an occasion of “enforcement of violence” which caused it.

The provision[4] could be said to be as an attempt to have mirror image of preventive detention laws, where in preventive laws are about power of state to maintain tolerance. On the other side, this Act creates an environment towards tolerant atmosphere for human rights to perish. The rise of intolerant behavior on and off the governments could be rightly dealt by draft laws like these.

The phrase “any perceived legal, societal and cultural norms or prejudices” reminds of incidence took place in the west part of the world. When philosopher Socrates[5] was sentenced to death after he was charges with two offences: asebeia[6] against the pantheon of Athens, and corruption of the youth of the city-state; the accusers cited two impious acts by Socrates: “failing to acknowledge the gods that the city acknowledges” and “introducing new deities”. The majority of dikastes[7] voted to determine his punishment, and agreed to a sentence of death to be executed by Socrates’s drinking a poisonous beverage of hemlock. The phrase used here “pursues with societal, legal, cultural norms and prejudices” which is wide enough to cover any charges based on prevalent conditions in society, would have covered two offences under which Socrates was charged. Whether this act of societal backlash is wide enough to maintain peace in socialist, democratic, republic is a matter of concern.

The Act specifically states to be enacted within thirty days[8] of its enactment and binds the legislators to come on the consensus in time bound fashion. Although, there have been cases of mob lynching in the State of Jammu and Kashmir, the draft keeps, anti-mob lynching law out of its ambit[9], and keeps specific enforcement of the law, open to Jammu and Kashmir at its intra-state legislative will.

It can be elaborated on the basis of the question which “acts of protest” can be called as lynching? According to the Sec. 2 (a) of the Act, lynching is-

  1. violence, whether spontaneous or planned, committed to inflict “extra judicial punishment”
  2. to enforce upon a person or group of persons “any perceived legal, societal and cultural norms or prejudices”

With “act of protest” and “desire of mob” imbibed within ambit of definition, the prevailing practices of time, whether or not prejudices or norms, will be called as lynching. The societal, cultural, legal prejudices and norms are plenty in number, and they seem to develop with time. Whether the Distinguished Courts established under the Act will prosecute those in coming period and if the definition itself will keep with changing time remains an obscure question.

The definition of “mob”[10] essentially makes group of two or more people, which in case of Riot under Indian Penal Code and Criminal Procedural Code is five or more in number.

Therefore, in attempt to develop a collective understanding of mob lynching under the Act it brings to an understanding that, it will punish, “two or more people who are enforcing violence by extrajudicial punishments against prevailing societal, cultural, legal norms or prejudices”. Not only mob lynching but lynching by person to person is also punishable with the same effect.

The victim under the Act is one who has suffered from any violence under the Act along with her or his family, which may be legal heir, legal guardian, and relatives. Mob lynching as social phenomenon has its roots within the ideological allegiance it has. Therefore, the Act broadens the perspective of the sufferings, to the psychological impacts on persons which go through mob lynching. It is true that, victim suffers the psychological impacts, which are hard to get rid of. But, it is also media narratives, discussions, debates, which are actually the whole series of events in themselves, connected with the Act of Violence and they influence psychological aspects adding to the value of circumstances which caused act of mob lynching.

Although there is a specific liability on one side to investigate without any negligence, the Act does not grant power to any person below the rank of Inspector of Police to investigate the crime.

If there is no Charge Sheet filed within three months by Investigation Officer from date of filing its First Information Report, the Review Committee[11] under IGP formed by State Government, will review the matter, and order fresh investigation by no officer lesser to the rank of DSP, even if trial ends into acquittal, or appeal, or wherever it is required during the trial.

No period of limitation has been put on –

  • constitution of Review Committee by State Government on or after failure to file charge sheet within a period of three months from the date of registration of the First Information Report
  • order of re-investigation by DSP

The police officer maintaining law and order situation in area is made liable[12] to –

  1. Identify dissemination of offensive material
  2. Material used to promote and incite lynching
  3. Prevent lynching in accordance with power

So on and so forth the Act has made every other police officer along with in charge of a police station to take action “to the best of their ability” and follow up of guidelines S.129 of CrPC[13] for using force, and has given specific power to District Magistrate to make order and prevent lynching on any apprehension of it.

Punishment for committing an offence of lynching[14] is further divided into type of lynching it has caused. Abatement of act lynching is also punished under the same manner as if offender has taken part in the commission of offence. For causing-

  1. Hurt – seven years imprisonment and fine which may extend to one lakh rupees.
  2. Grievous hurt – ten years of imprisonment and fine which may extend to three lakh rupees.
  3. Death – death sentence and fine which may extend to five lakh rupees.

Distinguishingly, preventing from proceeding the trial, hindering and otherwise obstructing the trial, threatening the witness, or his property, or abating withdrawal of complaint, is made punishable[15] with imprisonment which may extend to, five years.

It specifically makes provisions as to right of victim and witness[16] during the trial. They are as follows –

  1. Secrecy of Identity and address of the witness
  2. Reasonable, accurate, timely notice of trial to victim
  3. Hearing during the proceeding at every stage on or before acquittal or sentencing to the victim
  4. Choice of choosing an advocate from legal aid to the victim and witness
  5. All arrangements and periodical review for the protection of victims, and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.
  6. Duty to record complaint by victim whether given orally or in writing and copy of it to be sent to Designated Judge within 24 hours

This is the distinguishing feature of the Act in order to protect witness, interests in property and due process of law to be followed during the course of trial.

Punishment for publication, communication, dissemination of offensive material, electronic or physical, which may extend to one to three year and fifty thousand rupees fine[17]. The publication, communication, and dissemination of any material made before, or after, or during the trial or commission of an act of mob lynching is not specifically mentioned. Therefore, this provision could have been elaborated, in order to divide the manner of punishment according to the gravity, instead of one straightjacket formula.

Another distinguishing feature of the Act is dereliction of police officer and punishment inflicted upon police officers according to Police Act. The punishment and dereliction may be awarded in cases where there is non-fulfillment of duty, failure to provide protection, act upon apprehension of lynching, and refusal to record FIR, by police officer[18].

The District magistrates are derelict and are awarded with punishment[19] up to six month or fine if she or he –

  1. Exercise lawful authority wasted in mala fide manner which causes injury or harm to any person or property
  2. Willful omission of to exercise lawful authority

The Act specifically appoints and establishes court of Distinguished Judges[20] to try and decides cases of mob lynching by Central government in consultation with Chief justice of High Court with a minimum experience of Sessions Judge.

The Act in Section 20, seeks direction to amend Code of Criminal Procedure accordingly and it is addition to any other law, not in derogation. The nature of offences otherwise determined by the law of criminal procedure and particularly according to the schedule, here seeks to be cognizable, which means offender be arrested without warrant and non-bailable, which means bail won’t be granted as of right. And the procedure of trial followed, will be of warrant cases prescribed under Code of Criminal Procedure Code, 1973. And for the purpose of the Code[21], court appointed shall be deemed to be Sessions Court.

Limitations about commencement of trial on the Court are such that, that it has to be held –

  1. On Day to day basis except reasons beyond control of parties
  2. Within 180 days from date of commencement of trial for recording statements of victims and witnesses
  3. By ensuring no witness is required to attend the more than two dates of hearing
  4. Within 60 days from the date of judgment appeal to High Court
  5. After 30 days appeal to high court if court is satisfied that there is sufficient cause

The welcoming features of the Protection from Lynching Act, 2017 can be summarized as follows-

  1. Protection and Right of Victim and Witness
  2. Limitation on recording statements of witnesses
  3. Punishments according to type of lynching
  4. Dereliction of District Magistrate
  5. Dereliction of police, trial according to police act and punishment
  6. Review committee and reporting to DGP
  7. Compulsion of recording complaints, statements about threats by Victim and witness during and before
  8. All offences under the act classified as Cognizable, Non-bailable
  9. Warrant case and day to day trial

Areas of improvements –

  1. Death sentence is not as per second optional protocol to International Covenant on Civil and Political Rights[22] aiming to abolition of death penalty. Allow life imprisonments or any other reasonable punishments instead.
  2. Psychological harm to victim and relatives cannot be measured on the basis of victim’s direct sufferings alone. Mob lynching impacts social engineering[23] of the whole society. Provide a specific term along with mental harassment caused by mob lynching.
  3. The “societal, cultural, legal prejudices and norms” are plenty in number, and they seem to develop with time. Provide alternate procedure as to how to come onto consensus of what is “societal, cultural, legal prejudices and norms”. Otherwise, the phrase will only give an opportunity to either party to earn benefits and turn the case. It remains a gray area as a matter of public interest.
  4. No period of limitation has been put on
  5. constitution of Review Committee by State Government on or after failure to file charge sheet within a period of three months from the date of registration of the First Information Report
  6. order of re-investigation by DSP
  7. If no limitation of period put under the act, Review committee constituting power shall be given to High Court or Distinguished judge instead of waiting for State Government’s discretion.

[1] The protection from lynching act, 2017 is also called Manav Suraksha Kanun (MASUKA), 2017 and is drafted by drafting committee constituted under National campaign against mob lynching which includes senior lawyer and political and non-political leaders.

[2] Niranjan MIlind Deshpande, currently working with Centre for Study of Society and Secularism, The views expressed are independent.

[3] Not in my name protests took place from 28th June 2017 helmed by Gurgaon based film maker Saba Diwan who gave out a rallying cry.

[4] Section 2 (a)

[5] Ibid

[6] Impiety meaning a perceived lack of proper respect for something considered sacred

[7] Dikastes meaning a judge or juror from democratic times of Greece who decided on questions of law and customs

[8] Section 1 (3)

[9] Section 1 (2)

[10] Section 2 (b)

[11] Section 22

[12] Section 3

[13] Code of Criminal Procedure, 1973

[14] Section 7

[15] Section 9

[16] Section 21

[17] Section 10

[18] Section 12

[19] Section 13

[20] Section 19

[21] Code of Criminal Procedure, 1973

[22] United Nations Human Rights, http://www.ohchr.org/EN/ProfessionalInterest/Pages/2ndOPCCPR.aspx

[23] Roscoe Pound Theory of Social Engineering

 

0 POST COMMENT