Once decoded, there are flaws in Rajasthan’s proposed anti-lynching law

Source: Hindustan Times dated 15.10.2019 

-- Abhinav Shekhri (Advocate practising in Delhi)
The new law has various problems. It would be better to simply strengthen the existing processes.

In April 2017, images and videos of a group of people attacking a middle-aged Pehlu Khan in Alwar, Rajasthan, sent shock waves through India. A year later, in August 2019, a trial court found none of the persons accused for Khan’s death were guilty, since the prosecution could not establish the case beyond reasonable doubt. In the commentary following the verdict, there hasn’t been enough discussion about the anti-lynching law that Rajasthan (and other states) passed, which are pending approval by the Centre.

On the face of it, the Rajasthan law has immaculate pedigree. It was birthed by a civil society movement, and buttressed by the Supreme Court orders that called for measures to address mob lynching. Unfortunately, this pedigree leads many to ignore the resistance that the idea of an anti-lynching law had met with earlier, which we must consider. There are, broadly, three aspects to this proposed law: (i) Creating a new offence of “lynching” with stiff punishments; (ii) creating new rights and duties for police, and; (iii) giving victims a solid footing in the process to ensure that they get justice. A closer look reveals that the new law suffers from various problems on these aspects, nullifying the potential gains of legislation.

Most of criminal law theory is about creating labels and the message that such labels send out regarding an individual’s conduct in society. For instance, think of sexual assault and rape. Logically, sexual assault includes rape, but historically societies have reserved that label to single out and identify a particular kind of sexual assault, one that is considered particularly harmful. The same applies here. While there are existing crimes that could cover group violence, they do not convey the severity associated with cases such as Khan’s, requiring a new label altogether. There is great merit in this theory, but for it to work, it must transmit the label effectively, and this is where the anti-lynching law fails us. We are told that a mob is a group of two or more persons, but when has there been a two-person mob? The reason for this threshold, I believe, is because the Indian Penal Code already created group-based crimes when five or more people act together. In this bid to create a new crime to respond to political pressure, the law not only ends up failing to create an effective label, but also creates confusion in the overall administration of the law.

An examination of the law on the second aspect, where new rights and duties are recognised for the police, further highlights how the new legislation is a bad fit within the existing criminal justice architecture. The police already have wide-ranging powers to prevent crime, including conducting preventive arrests, as well as passing orders under Section 144 of the Criminal Procedure Code, 1973, for prohibiting the assembly of groups. The anti-lynching law, largely, gives these powers a fresh coat of paint, while also expanding them in certain aspects. But, as Khan’s case confirms, these powers are only useful if the police actually use them to secure justice. The trial court verdict held, in no uncertain terms, that the police investigation contributed greatly to the acquittals, by causing exclusion of key evidence. Rather than addressing the fact that police officers are unable to discharge their duties either due to a lack of adequate manpower, training, or sheer unwillingness, the anti-lynching law suggests that the answer lies in giving the police more powers. I fail to see the logic.

Besides allowing for grants of compensation, the Rajasthan Act seeks to also empower victims by allowing them to argue at different stages of the case, and broadening existing legal aid by allowing victims to be represented by lawyers of their choice from a panel at the state’s expense. These are bold moves. But, again, they suffer from the vice of being driven by an insular approach, rather than one which locates a solution that is harmonious with the existing set-up. In regular criminal law, the prosecution and defence both have rights and duties. For instance, the prosecution must disclose its case prior to a trial by giving copies of material collected during the investigation free of cost. Will the victim also be permitted to file material, and if so, will there be a duty to furnish free copies? Furthermore, expanding victims’ rights in a piecemeal manner only compounds such questions in the context of the criminal justice system as a whole. Why not work towards a comprehensive victims’ rights legislation instead?

There is no doubt that the anti-lynching legislation is intended to be a law for the good. However, this consequentialist focus must not blind us to the fact that a law intended for the good can end up being bad law. Rather than promise more justice on paper by passing new anti-lynching laws with problematic legal implications, a better chance at securing justice perhaps lies in strengthening the operation of the existing processes of the law.