No, No And No - Three Reasons Why MASUKA Is A Bad Idea

With the Supreme Court’s observations on mob lynchings earlier today, the Maanav Suraksha Kanoon, or MASUKA is back in public attention. MASUKA is a law being proposed by the National Campaign Against Mob Lynching in response to the spate of lynching incidents that have come to light in recent times. The proposed law aims to protect the vulnerable and rehabilitate the victims, while ensuring that the perpetrators are punished.

But, is MASUKA really the answer to mob lynchings? Here are three reasons why such a law would fail to resolve the problem.

First, the law is redundant; there might not be a specific section defining and punishing lynching, but reading sections 302, 326 and 149 of the Indian Penal Code makes it clear – “lynching” is an illegal act.

When a celebrity says, “Lynching does not find mention in the Indian Penal Code (IPC). No particular law has been passed to deal with lynching”, she is right, but she fails to consider the fact that lynching is already a criminal act. Just because a particular offence has not, per se, found a mention in the IPC does not mean that it is not an offence. MASUKA thus deals with a set of offences that are already penalised. A special law to combat “lynching” would be just another statute that lies dead in the books or, worse, an instrument utilised by the law enforcement agencies to browbeat unsuspecting citizens.

Second, the law is badly drafted, has provisions that make no sense and some sections read like lectures on propriety than legislation (Section 5, for example, goes thus: “It shall be duty of every police officer, in-charge of a police station to take all reasonable steps to prevent any incident of lynching, including its incitement, commission and possible spread.”) There are so many loopholes and provisions that can easily be misconstrued or misused by law enforcement agencies.

Take, for example, the provision punishing the dissemination of “offensive materials” (the punishment is a minimum of one year, up to three years, and a fine of Rs 50,000). What is the definition of “offensive materials”, you may ask? Section 2(d) reads: ““Offensive material” shall mean any material that can be reasonably construed to have been made to incite a mob to lynch a person and shall include material promoting lynching on the grounds of religion, race, culture or any other ground.” I believe it is self-evident how anything can be “reasonably” construed to be offensive material.

Also, one must not forget that the police would have additional power to harass and intimidate citizens. (Section 3, clause 1, sub-clause (i) states that one of the “duties” of a police officer is to “make all possible efforts to identify instances of dissemination of offensive material or any other means employed in order to incite or promote lynching of a particular person or group of persons.” )

Third, even if we are to ignore the first two glaring problems with the enactment of the draft bill, one needs to remember what caused this hullabaloo and the drafting of this proposed legislation: the lack of rule of law in the country. This is not a problem that can be solved by this legislation, or any other, for that matter – because the problem is not the law, the problem is the enforcement of the law. And the primary law enforcement agency, the police, is in a mess.

Lynching and other acts of mob or thuggish violence will automatically start to dip if we bring about lasting change in law enforcement. A new law will only be relegated to the dusty pages of law books, and nothing much will come out of it ultimately.

An earlier version of this piece was published on 20 July 2017 as ‘Three reasons why MASUKA is a bad idea’.