Ashok Gehlot (Facebook) 
Snapshot
  • Rajasthan government’s anti-lynching law is draconian in nature, subjective and ambiguous, gives immense and arbitrary powers to police and politicians to target citizens and communities, is unnecessary and defies common sense.

    It must be amended or repealed immediately.

Thomas Sowell said liberalism is totalitarianism with a human face.

Nothing exemplifies this quote better than the legislative approach of India’s grand old party. Whenever and wherever Congress governments come to power, they push laws which are totalitarian in nature but are deftly presented as harbinger of justice for the powerless and cunningly wrapped up in the sophisticated language of liberalism.

The Rajasthan government’s ‘Protection from Lynching Bill, 2019’ is latest example of Congress’ trickery. This act changes the fundamental meaning of simple English words and invents their new definitions.

It mandates outrageously harsh punishments for crimes which are already proscribed. In an anti-democratic move that will curb free speech, this law inserts vague phrases which aren’t limited to lynching.

Ambiguity and absurdity are the hallmark of this legislation which criminalises even actions and thoughts that the state may deem ‘offensive’.

Here are five reasons why it must be repealed as soon as possible.

First, it is a clever way of curtailing liberties of citizens by the government in the name of opposing lynchings. Take for instance, Chapter 5, Clause 11 of the act which describes punishment for dissemination of “offensive material”.

“Whoever publishes, communicates or disseminates by any method, physical or electronic, any offensive material, shall be punished with imprisonment of either description for a term of not less than one year but which may extend to three years, and with fine which may extend to fifty thousand rupees.”

Now, this section can be applied to throw anyone in jail including journalists or activists who report or raise their voice to highlight acts of violence or discrimination.

Ditto for Clause 12 which defines punishment for enforcing a “hostile environment”.

“Whoever contributes or enforces a hostile environment on a person or a group of persons shall be punished with imprisonment which may extend to five years and shall also be liable to fine which may extend to one lakh rupees.”

Though both sections will apply to cases related to lynchings, the definitions of what constitutes “offensive material” and “hostile environment” are all encompassing and include anything and everything under its ambit.

The law defines “offensive material” as “any material that can be reasonably construed to have been made to incite a mob to lynch a person on the grounds of religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity or any other related grounds”.

So basically, all grounds are covered. At present, when there is no clear test laid down by the government or the courts to unarguably differentiate simple speech and speech which leads to violence, how will ‘the speech that incites mob to lynch’ be possibly determined?

Similarly, “hostile environment”, apart from five clearly defined categories, is also deemed to have been created by “any other act, whether or not it amounts to an offence under this Act, that has the purpose or effect of creating an intimidating, hostile or offensive environment” for victims of lynchings or their family members.

It covers all possible scenarios the government can think of if it wants to silence dissenters.

To give an example, if a cow smuggler is lynched (say his name is Rakbar), and a journalist publishes his earlier history of thefts and trafficking, the victim or the family can file a case against the journalist for creating a hostile environment, isn’t it?

Second, the act completely changes the original meaning of some terms and gives them new definitions. It defines lynching as ‘any act or series of acts of violence or aiding, abetting or attempting an act of violence, 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”.

But lynching in original use of the word means extrajudicial killing of a perpetrator of a crime (alleged or convicted) by a group.

Lynching is essentially killing. It is not merely an act of violence and certainly not attempting an act of violence as the law has stated it to mean.

It seems the drafters of Rajasthan’s act are inspired by the United States Senate which unanimously passed the "Justice for Victims of Lynching Act of 2018” that criminalises lynching (which leads to killing or bodily harm), and attempts or conspiracy to lynch. While importing foreign discourses with totally different context (US has a history of Blacks being lynched for decades) and state capabilities may be fashionable, it creates more problems than it solves.

More importantly, unlike the Rajasthan act, the US Senate one is clear in its definitions and doesn’t over-reach and doesn’t have totalitarian tendencies.

Here is another example of over-reach. The victim is defined as not the one who is himself physically assaulted by two or more people but refers to ‘any person, who has suffered physical, mental, psychological or monetary harm as a result of the commission of any offence under this Act, and includes his relatives, legal guardian and legal heirs.”

So, if a couple of people rough up a person who isn’t physically injured, he can always claim mental or psychological harm and his relatives, guardian or heirs can file cases against almost anyone for disseminating “offensive material” which according to them is creating a ‘hostile environment’ for them.

Third, the punishments prescribed for offences are extremely harsh and certainly not in line with liberal principles (restorative rather than retributive justice), that proponents of this bill are otherwise found championing.

Harsher punishments won’t lead to reduction in crime as long as there is no swiftness in delivering justice.

Killing or assaulting someone is already a severe crime whether it’s done by one person or by a group. Under IPC Section 323 and 325, punishment for voluntarily causing hurt attracts one year of imprisonment and for grievous hurt is seven years.

But under the anti-lynching act, causing hurt will invite 7 years of punishment and grievous hurt 10 years. The only thing that it will change is that the number of cases filed under the anti-lynching law will increase and the cases under IPC will go down. How does that solve anything?

Rather than focusing on how to solve the cases quickly and punish the perpetrators via police and judicial reforms, we are barking up the wrong tree by passing a new law for the same crime with longer jail terms. And doing so via a law that is ambiguous and arbitrary.

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Fourth, the most outrageous aspect of the act is chapter three which deals with preventing acts leading to lynching. It gives wide ranging powers to every police officer to ‘prevent any incident of lynching, including its incitement, commission and possible spread in the area’ and towards that end, he has the power to ‘obtain information regarding the likelihood of an act of lynching; and act in furtherance of the duty to prevent any act of lynching in accordance with the powers vested in them.’

The above goals can only be achieved if every police officer turns area under his jurisdiction into a surveillance zone.

But it doesn’t stop at that. The act empowers every police officer to register the First Information Report against “such persons who disseminate irresponsible and explosive messages or videos having content which is likely to incite mob violence and mob lynching of any nature.’

Essentially, every police officer can take suo moto cognizance, obtain information and book citizens for disseminating irresponsible videos that are likely to incite a mob.

Such draconian powers will achieve nothing except creating a police state out of every thana and instilling fear in ordinary citizens. Overwhelming majority of the lynching cases have been spontaneous and not premeditated. This act won’t do anything to prevent them.

Fifth, in the debate around lynching, we seem to have lost all sense of proportionality. There is no epidemic of lynchings in the country. In fact, such incidents are few and far between. Sure, lynching is a serious crime, more so when it is communally charged, but so are murders and rapes which our under-staffed courts and police forces are grappling with.

In such a scenario, this law mandates appointment of special nodal officers at the highest ranks at state as well as district level to prevent lynching, gives District Magistrates vast powers to ‘prohibit any act which in his opinion is likely to lead to the incitement and commission of an act of lynching’, directs that only officers above or of the rank of Inspector of Police will investigate these cases, facilitates special judges to be designated for them, etc.

Such diversion of limited resources without creating additional workforce and investment is highly irresponsible. While what is seen is special police and judges working on lynching cases, what is not seen is reduced focus on other serious issues.

Sixth, the act says that all hospitals, whether public or private, ‘shall immediately provide the first aid or medical treatment free of cost to victim and shall immediately inform the police of such incident.’

Why should a private hospital provide treatment free of cost? What’s next? Any person who is assaulted will have the right to free treatment too? It must be the government’s responsibility to compensate the hospitals who are providing the treatment.

Seventh, the act decrees that victims of lynching will be compensated as per the Rajasthan Victim Compensation Scheme and monetary fines imposed on perpetrators will be paid to victim or his legal heir.

While this is a good move, exemptions must be made for those ‘victims’ of lynching who are caught and assaulted while executing illegal acts such as theft, smuggling, etc. These kind of lynchings form the majority of cases. More importantly, there is no protection for ordinary citizens who are acting in self-defence.

This so-called anti-lynching act is totalitarian in nature, subjective and ambiguous, gives arbitrary powers to police and politicians to target citizens and communities, is unnecessary and defies common sense.

It must be repealed or amended immediately.

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