The crime vanishes: Mob lynching, hate crime, and police discretion in India

Abstract

Amidst high-profile incidents of hate violence against religious and caste minorities, the Indian Supreme Court laid down a series of guidelines to address mob violence and lynching in its July 2018 Tehseen Poonawalla order. The order mandated a police supervisory structure and stronger official accountability, more stringent penal provisions, victim and witness protection, and more expansive compensation and rehabilitation schemes. It also recommended the enactment of an anti-lynching legislation. This article contributes to the conversation about the order’s implementation by drawing from the empirical work conducted by Jindal Global Law School’s (JGLS) legal clinic on hate crimes. It focuses on how the police deploy their official discretion in investigating and prosecuting incidents of mob violence and lynching. First, based on detailed interviews of police officials, the article shows how the ambiguity of the category of lynching continues to plague the implementation of the order. Second, taking a case study of a potential hate crime investigation, it shows how the police structures investigations and charges to undermine the goals of criminal law. This article shows that police officials use their discretion to construct lynching — during various stages of investigation and charging — to obscure and invisibilise the crime. This quotidian exercise of discretion is shaped by broader systemic problems in India’s criminal justice system, especially its lack of independence, inadequate training, and institutional bias. The article advocates that these systemic concerns must be integrated in a meaningful response to mob lynching and hate crimes in India.

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Notes

  1. 1.

    Tushar Gandhi v Union of India Writ Petition (Civil) No. 732 of 2017 (Written Submission on Behalf of the Petitioner by Ms. Indira Jaising, Senior Advocate) [4-5]. http://theleaflet.in/wp-content/uploads/2018/07/Written-submissions-by-Indira-Jaising-in-Lynching.pdf. Accessed 12 May 2020.

  2. 2.

    ibid.

  3. 3.

    The Court clubbed all petitions culminating in the 17 July 2018 order. See Tehseen S. Poonawalla v Union of India & Others (2018) 9 SCC 501.

  4. 4.

    See Avani Mehta Sood, ‘Gender Justice through Public Interest Litigation: Case Studies from India’ (2008) 41(3) Vanderbilt Journal of Transnational Law 833, 847-850; AG Noorani, ‘Accountability for Torture’ (1999) 34(45) Economic and Political Weekly 3159; Manoj Mate, ‘Elite Institutionalism and Judicial Assertiveness in the Supreme Court of India’ (2014) 28(2) Temple International and Comparative Law Journal 361.

  5. 5.

    In this article, we use the phrase ‘hate violence’ synonymously with ‘hate crime’ and ‘targeted violence’ — to mean violence directed at victims partly or wholly motivated on the ground of their identity. For a discussion on hate crimes as these forms of bias crimes, see Nathan Hall, Hate Crime (2nd edn, Routledge 2013).

  6. 6.

    See Tehseen S. Poonawalla v Union of India & Others (n 3) ‘C. Punitive Measures’ (i) & (ii) [40].

  7. 7.

    Two relevant Supreme Court decisions that laid detailed guidelines for disciplining the police are D.K. Basu v State of West Bengal (1997) 1 SCC 416 (laying down procedures of accountability in cases of police custodial deaths) and Prakash Singh v Union Of India (2006) 8 SCC 1 (laying down guidelines for securing the independence of the police). Human rights organisations have consistently noted the failure of the state machinery to implement the Court’s orders and guidelines. See e.g. Commonwealth Human Rights Initiative, Seven Steps to Police Reform (2010); Human Rights Watch, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police (2009).

  8. 8.

    Compliance reports of Uttar Pradesh, Haryana, Rajasthan, Tripura, Tamil Nadu, Punjab, Lakshadweep, Jharkhand, Gujarat, and Chandigarh on file with authors.

  9. 9.

    See nn 51-52 and accompanying text.

  10. 10.

    See n 52, nn 112-115 and accompanying text.

  11. 11.

    See e.g. Mrinal Satish, Discretion, Discrimination and the Rule of Law: Reforming Rape Sentencing in India (Cambridge University Press 2017).

  12. 12.

    See David H Bayley, The Police and Political Development in India (Princeton University Press 2015); KS Subramanian, Political Violence and the Police in India (SAGE 2007); Ernest L Nickels and Arvind Verma, ‘Dimensions of Police Culture: A Study in Canada, India, and Japan’ (2008) 31(2) Policing: An International Journal of Police Strategies and Management 186. For a review of the policy debates, see Anviti Chaturvedi, Police Reforms in India (PRS Legislative Research 2017). https://www.prsindia.org/sites/default/files/parliament_or_policy_pdfs/Police%20Reforms%20in%20India.pdf. Accessed 19 March 2020.

  13. 13.

    See Mayur Suresh, ‘The “Paper Case”: Evidence and Narrative of a Terrorism Trial in Delhi’ (2019) 53(1) Law and Society Review 173; Pratiksha Baxi, ‘Justice is a Secret: Compromise in Rape Trials’ (2010) 44(3) Contributions to Indian Sociology 207; Pooja Satyogi, ‘Law, Police and ‘Domestic Cruelty’: Assembling Written Complaints from Oral Narratives’ (2019) 53(1) Contributions to Indian Sociology 46; Arvind Verma, ‘Maintaining Law and Order in India: An Exercise in Police Discretion’ (1997) 7(1) International Criminal Justice Review 65; J Belur and others, ‘Police Investigations: Discretion Denied Yet Undeniably Exercised’ (2014) 25(5) Policing and Society 439; Beatrice Jauregui, ‘Dirty Anthropology: Epistemologies of Violence and Ethical Entanglements in Police Ethnography’ in William Garriott (ed), Policing and Contemporary Governance: The Anthropology of Police in Practice (Palgrave Macmillan 2013).

  14. 14.

    See Bayley (n 12) 23 (‘…considering the task of the police simply as law enforcement, the police may exercise discretion with potential political significance with respect to the emphasis given to prevention as opposed to punishment; the kind of laws enforced; the occasions on which any law is enforced; and the number of law-enforcing functions combined in the hands of the police’). See also Michael Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Service (Russell Sage Foundation 2010) 13 (arguing that the police, as ‘street-level bureaucrats have considerable discretion in determining the nature, amount, and quality of benefits and sanctions provided by their agencies’); Michael Brown, Working the Street: Police Discretion and the Dilemmas of Reform’ ( Russell Sage Foundation 1981); Matthew Bacon, ‘Police Culture and the New Policing Context’ in Jennifer M Brown (ed), The Future of Policing (Routledge 2014) 108-109; Jeannine Bell, ‘Policing Hatred: Police Bias Units and the Construction of Hate Crime’ (1997) 2(5) Michigan Journal of Race and Law 421, 451-453.

  15. 15.

    See e.g. Verma (n 13) 66-67.

  16. 16.

    See e.g. Commonwealth Human Rights Initiative, Feudal Forces: Reform Delayed: Moving from Force to Service in South Asian Policing (2008). See also Thomas Blom Hansen, ‘Sovereigns Beyond the State: On Legality and Authority in Urban India’ in Thomas Blom Hansen and Finn Stepputat (eds), Sovereign Bodies: Citizens, Migrants, and States in the Postcolonial World (Princeton University Press 2009).

  17. 17.

    Harsh Mander, ‘Broken Lives and Compromise: Shadow Play in Gujarat’ (2012) 47(8) Economic & Political Weekly 90, 91.

  18. 18.

    ibid 94.

  19. 19.

    The National Human Rights Commission report on The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 expounds that, ‘the police resorts to various machinations to discourage SCs/STs from registering cases, to dilute the seriousness of the violence, to shield the accused persons from arrest and prosecution and, in some cases, themselves inflict violence.’ See National Human Rights Commission, Report on Prevention of Atrocities Against SCs, New Delhi (2002) 113-114 cited in National Coalition for Strengthening SCs & STs (Prevention of Atrocities) Act, Report Card, 20 Years Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (2010) 13.; Broken System: Dysfunction, Abuse, and Impunity in the Indian Police (n 7) 45.

  20. 20.

    Beatrice Jauregui, Provisional Authority: Police, Order, and Security in India (University of Chicago Press 2016) 64 -71.

  21. 21.

    ibid 71.

  22. 22.

    ibid 73 (‘The police process of investigating and deciding who may be a “real criminal” is configured not only by legal codes and official regulations, but also by a host of unofficial modes of sociality and power plays.’).

  23. 23.

    See Satyogi (n 13) 46, 55, 63; Suresh (n 13); Baxi (n 13) 216 (noting that, ‘the standardised frameworks of writing a police complaint structure the narrative, as well as filter through it a certain idea of relevant facts in anticipation of a trial’).

  24. 24.

    The Clinic’s research was conducted under the supervision of one of the authors, M Mohsin Alam Bhat, who was the Course Instructor (CI) and Principal Investigator (PI). The PI was the primary interviewer. The student participants in the Clinic assisted the PI in recording the interviews, note-taking, supplementing the questions, and putting down field observations and notes. All interviews were based on semi-structured interviews prepared in advance. All the interviews were conducted in Hindi. Since we could not audio-record the interviews with the police officials, we transcribed them instantaneously while roughly translating in English. We preserved some vignettes of the interviews in the original Hindi, especially if the language our respondents used suggested an important element for our research. In addition to the semi-structured interviews, we also recorded field observations and notes. Field observations and notes recorded spontaneous interactions with police officials, families, victims and survivors. These gave us the context for the interviews and helped us in our findings. For this reason, we use the phrase ‘interviews and interactions’ throughout this article to refer the empirical basis of our findings. All aspects of the project received ethics approval from O.P. Jindal Global University’s Research and Ethics Review Board Committee before we conducted the field research.

  25. 25.

    See CJP Team, ‘The Murder of Pehlu Khan’ (CJP, 26 October 2017). https://cjp.org.in/the-murder-of-pehlu-khan/. Accessed 12 May 2020.

  26. 26.

    See Human Rights Watch, Violent Cow Protection in India: Vigilante Groups Attack Minorities (2019) 28-29; Anjana Prakash, ‘A Detailed Breakdown of Exactly How Justice was Denied to Pehlu Khan (The Wire, 26 September 2019). https://thewire.in/law/a-detailed-breakdown-of-exactly-how-justice-was-denied-to-pehlu-khan. Accessed 12 May 2020. For the latest developments in the case, see PTI, ‘Pehlu Khan Lynching Case: 2 Teenagers Sentenced to 3 Years in Special Home’ India Today (Jaipur, 13 March 2020). https://www.indiatoday.in/india/story/raj-minors-lynching-pehlu-khan-juvenile-home-1655293-2020-03-13. Accessed 12 May 2020.

  27. 27.

    Sagar, ‘Mulleh, Kattale Saaley. Maro Sabko. Maaro. Maaro”: How Passengers on a Train Compartment Discarded Their Humanity’ (The Caravan, 27 June 2017). https://caravanmagazine.in/vantage/how-passengers-on-train-discarded-humanity. Accessed 12 May 2020.

  28. 28.

    PTI, ‘Junaid Lynching: Main Accused ‘Confessed’ to Crime, Say Police’(The Hindu, 9 July 2019). https://www.thehindu.com/news/national/other-states/junaid-lynching-main-accused-confessed-to-crime-say-police/article19245913.ece. Accessed 12 May 2020.

  29. 29.

    PTI, ‘Junaid Lynching Case: HC Grants Interim Bail to Key Accused Naresh’ (News18, 3 October 2018). https://www.news18.com/news/india/junaid-lynching-case-hc-grants-interim-bail-to-key-accused-naresh-1897431.html. Accessed 12 May 2020.

  30. 30.

    For a documentation of lynching cases, see Citizens Against Hate, Lynching Without End: Fact Finding Investigation into Religiously-Motivated Vigilante Violence in India (2017); DOTO Documentation of the Oppressed. https://dotodatabase.com. Accessed 30 May 2020; Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 26).

  31. 31.

    Tehseen S. Poonawalla v Union of India & Others (n 3) [18].

  32. 32.

    Section 153A of the Indian Penal Code, 1860 (IPC).

  33. 33.

    See Tehseen S. Poonawalla v Union of India & Others (n 3) ‘C. Punitive Measure’ (i) [40].

  34. 34.

    See e.g. Section 18 of The Haryana Gauvansh Sanrakshan and Gausamvardhan Act, 2015; Section 13 of The Maharashtra Animal Preservation Act, 1976.

  35. 35.

    Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 30) 5-6 & 17-19.

  36. 36.

    See Lynching Without End: Fact Finding Investigation into Religiously-Motivated Vigilante Violence in India (n 30); Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 26).

  37. 37.

    For a general introduction, see Armin Rosencranz and Sharachchandra Lélé, ‘Supreme Court and India's Forests’ (2008) 43(5) Economic and Political Weekly 11; Arghya Sengupta and Sanhita Ambast, ‘Judicial Enforcement of Socio-Economic Rights: Lessons from the Use of the ‘Continuing Mandamus’ by the Supreme Court of India’ in Philippe Reyniers and Karolina Podstawa (eds), Courts and New Governance: Towards Experimentalist Jurisprudence (Hart Publishing 2012).

  38. 38.

    For an impressive example of the Court using these mechanisms and techniques, see the enforcement of the Right to Food orders in Lauren Birchfield and Jessica Corsi, ‘Between Starvation and Globalization: Realizing the Right to Food in India’ (2010) 31(4) Michigan Journal of International Law 691.

  39. 39.

    Tehseen S. Poonawalla v Union of India & Others (n 3) [2, 17].

  40. 40.

    ibid [2, 12].

  41. 41.

    ibid [20].

  42. 42.

    See e.g. ibid [40].

  43. 43.

    M Mohsin Alam Bhat, ‘Mob, Murder, Motivation: The Emergence of Hate Crime Discourse in India’ (2020) Socio-Legal Review 16(1) (forthcoming).

  44. 44.

    See Organization for Security and Co-operation in Europe’s Office for Democratic Institutions and Human Rights, Hate Crime Laws: A Practical Guide (2009) 16.

  45. 45.

    For an account of the hate crime paradigm and its appreciation of group subordination, see Barbara Perry, In the Name of Hate: Understanding Hate Crimes (Routledge 2001).

  46. 46.

    Tehseen S. Poonawalla v Union of India & Others (n 3) [20].

  47. 47.

    Joanna Perry, ‘The Migration and Integration of the Hate Crime Approach in India’ (2020) 11(1) Jindal Global Law Review (forthcoming).

  48. 48.

    For a discussion on the legislative activity around lynching after Tehseen Poonawalla, see Bhat (n 43).

  49. 49.

    See n 8 for a list of compliance reports on file with authors.

  50. 50.

    UP Victim Compensation Scheme, Notification No. 653/Six-Po-9-14-31(90)-2010 dated 9 April 2014 (amended on 14 June 2016), mentioned in the Uttar Pradesh compliance report, 4 September 2018, on file with authors.

  51. 51.

    The Quint did a Right to Information (RTI) – driven story to find out the extent to which the Supreme Court guidelines to curb lynching have been followed by the central and state governments. It focused on the Guideline where the government had to broadcast the message that lynchings are prohibited (See Tehseen S. Poonawalla v Union of India & Others (n 3) ‘A. Preventive Measures’ (ix) [40]). As per the report, the RTI queries were continuously transferred to different departments which claimed to not have the required information. Anjali Bhardwaj was quoted saying, ‘The info should be readily available with the govt. The fact that it needs to be transferred is an indication of a lack of political will of the govt to implement measures to curb lynchings.’ It further found, through RTIs, that the Bureau of Outreach and Communication (BOC) received ‘No such request’ to spread message on lynchings. Sanjay Hegde reacted to this and said, ‘It is obvious that the central government has chosen to ignore the SC guidelines as it has not expended any money on any direct campaign to spread awareness against lynchings as required by the SC judgment.’ He further stated that as the matter is not listed before the court for monitoring, it is unlikely that the situation will change. Aishwarya S Iyer, ‘Govt Did Little to Execute SC Guidelines on Lynchings, RTI Reveals’ (The Quint, 19 November 2019). https://www.thequint.com/news/politics/supreme-court-guidelines-on-lynching-rti-central-government. Accessed 25 February 2020. See also Manu Sebastian, ‘Whither Rule of Law? The Glaring Defiance of SC Guidelines to Curb Mob Lynching’ (LiveLaw, 27 June 2019). https://www.livelaw.in/columns/sc-guidelines-to-curb-mob-lynching-145924. Accessed 21 February 2020 (The article adumbrates that nothing substantial has changed on the ground as not even the bare minimum of broadcasting on radio, television and other media platforms that, lynching and mob violence will invite serious consequences has been done by the government.).

  52. 52.

    Salik Ahmad, ‘A Year On, State Govts Drag Feet on SC’s Guidelines to Combat Lynchings, Vigilantism’ (Outlook, 16 September 2019). https://www.outlookindia.com/magazine/story/india-news-mob-lynching-unlimited-vigilante-brutality-hits-top-gear-as-law-plays-catch-up/302095. Accessed 21 February 2020.

  53. 53.

    The Economic Times reported that the matter of lynching law came up in the Upper House of the Parliament (Rajya Sabha) where DMK member Tiruchi Siva had asked the government why the President had not given assent to the Manipur and Rajasthan Bills. The article states that Amit Shah had responded saying he will have a committee of public prosecutors look into it. See ET Bureau, ‘States' Views Sought on Need for Mob Lynching Law’ (The Economic Times, 4 December 2019). https://economictimes.indiatimes.com/news/politics-and-nation/states-views-sought-on-need-for-mob-lynching-law/articleshow/72374556.cms?from=mdr. Accessed 26 February 2020.

  54. 54.

    Pranjal Kishore and Sanjay Hegde, ‘One Year After SC Recommended a Lynching Law, Is Anybody Listening?’ (The Wire, 17 July 2019). https://thewire.in/law/supreme-court-lynching-law-guidelines. Accessed 25 February 2020.

  55. 55.

    ibid.

  56. 56.

    The central government has paid no heed to the Court’s preference for a special law to curb extra judicial activities. So far, the central government has only constituted an Empowered Group of Ministers (GoM) for consulting on the nature of the legislation. See Venkatasubramanian, ‘Mob Lynching: Loopholes in the Law’ (India Legal, 3 August 2019). https://www.indialegallive.com/constitutional-law-news/supreme-court-news/mob-lynching-loopholes-in-the-law-70241. Accessed 21 February 2020.

  57. 57.

    Express New Service, ‘Lynching: 10 States Ignore Supreme Court Guidelines, Get Notices’ (The New Indian Express, 27 July 2019). https://www.newindianexpress.com/nation/2019/jul/27/lynching-10-states-ignore-sc-guidelines-get-notices-2010028.html. Accessed 25 February 2020; ANI, ‘SC Notice to Centre, States for Implementation of Guidelines to Prevent Mob Lynching’ (Business Standard, 26 July 2019). https://www.business-standard.com/article/news-ani/sc-notice-to-centre-states-for-implementation-of-guidelines-to-prevent-mob-lynching-119072600706_1.html. Accessed 26 February 2020.

  58. 58.

    Both English and Hindi news media use the word lynching to describe these incidents. There is no specific Hindi word that is conventionally used to describe them.

  59. 59.

    See PTI, ‘Man Beaten to Death in Haryana over Suspicion of Cattle Theft’ (NDTV, 4 August 2018). https://www.ndtv.com/india-news/man-allegedly-beaten-to-death-in-haryana-over-suspicion-of-cattle-theft-1895131. Accessed 12 May 2020; India TV News Desk, ‘Man Beaten to Death in Palwal over Suspicion of Cattle Theft’ (India TV, 4 August 2018). https://www.indiatvnews.com/news/india-haryana-man-beaten-to-death-in-palwal-on-suspicion-of-cattle-theft-mob-lynching-456390. Accessed 12 May 2020; Navbharat Times, ‘Ab Palwal Mai Mob Lynching, Bheed ne Yuvak ko Peet-peettkar Maar Dia (Now Mob Lynching in Palwal, Young Man Beaten to Death)’ (Navbharat Times, 4 August 2018). https://navbharattimes.indiatimes.com/state/punjab-and-haryana/palwal/now-mob-lynching-in-palwal-young-man-died/articleshow/65263147.cms. Accessed 12 May 2020.

  60. 60.

    See Kunal Purohit, ‘How a Jumble of Politics, Gender Issues and Economics Foments Hate Crime in Uttar Pradesh’ (Bloomberg Quint, 26 January 2019). https://www.bloombergquint.com/politics/how-a-jumble-of-politics-gender-issues-and-economics-foments-hate-crime-in-uttar-pradesh. Accessed 12 May 2020; HT Correspondent, ‘Seven, Including Two of Victim’s Friends, Held in Bareilly Lynching Case’ (Hindustan Times, 31 August 2018). https://www.hindustantimes.com/india-news/seven-including-two-of-victim-s-friends-held-in-bareilly-lynching-case/story-6H5K8uU5RKDrmP4Fh0A3DK.html. Accessed 12 May 2020.

  61. 61.

    See Sat Singh, ‘“Cow Vigilantes” Beat 24-year-old Cattle Trader for 2 hours in Rohtak, Police Chain Victim Instead of Taking Him to Hospital’ (Firstpost, 24 January 2019). https://www.firstpost.com/india/chained-and-thrashed-cow-vigilantes-beat-24-year-old-cattle-trader-for-2-hours-in-rohtak-police-chain-victim-instead-of-taking-him-to-hospital-5944481.html. Accessed 12 May 2020.

  62. 62.

    During our conversations with the police officials, we did not assert or suggest any specific substantive definition of lynching and mob violence. Likewise, in this part, we do not propose or defend any specific definition of this phrase.

  63. 63.

    RTI responses on file with authors.

  64. 64.

    Interview in Rohtak (Haryana), 10 June 2019, on file with authors.

  65. 65.

    Interview in Bareilly (Uttar Pradesh), 4 May 2019, on file with authors.

  66. 66.

    Interview in Bareilly (Uttar Pradesh), 4 May 2019, on file with authors.

  67. 67.

    See Tehseen S. Poonawalla v Union of India & Others (n 3) ‘A. Preventive Measures’ [40].

  68. 68.

    Interview in Shamli (Uttar Pradesh), 27 April 2019, on file with authors.

  69. 69.

    Interview in Rohtak (Haryana), 10 June 2019, on file with authors.

  70. 70.

    Interview in Bareilly (Uttar Pradesh), 4 May 2019, on file with authors.

  71. 71.

    Interview in Rohtak (Haryana), 10 June 2019, on file with authors.

  72. 72.

    Interview in Palwal (Haryana), 15 April 2019, on file with authors.

  73. 73.

    Interview in Palwal (Haryana), 15 April 2019, on file with authors.

  74. 74.

    Interview in Bareilly (Uttar Pradesh), 4 May 2019, on file with authors.

  75. 75.

    See Tehseen S. Poonawalla v Union of India & Others (n 3) ‘B. Remedial Measures’ (v) [40].

  76. 76.

    See Benjamin Bowling, Robert Reiner, and James W E Sheptycki, The Politics of the Police (5th edn, Oxford University Press 2019) 164; Jeffrey T. Martin, ‘Police and Policing’ (2018) 47 Annual Review of Anthropology 133.

  77. 77.

    Elizabeth A Boyd, Richard A Berk, and Karl M. Hamner, ‘“Motivated by Hatred or Prejudice”: Categorization of Hate-motivated Crimes in Two Police Divisions’ (1996) 30(4) Law and Society Review 819, 848.

  78. 78.

    Valerie Jenness and Ryken Grattet, Making Hate A Crime: From Social Movement to Law Enforcement (Russell Sage Foundation 2001) 130.

  79. 79.

    See Boyd, Berk, and Hamner (n 77); Susan E Martin, ‘“A Cross-Burning is Not Just an Arson”: Police Social Construction of Hate Crimes in Baltimore County’ (1995) 33(3) Criminology 303; Susan E Martin, ‘Investigating Hate Crimes: Case Characteristics and Law Enforcement Responses’ (1996) 13(3) Justice Quarterly 455; Jenness and Grattet (n 78) 134 (noting that the variation in police interpretation and application of hate crimes was ‘in large part, attributable to differences in the philosophies and the routine practices in the different departments as well as the newness of the criminal category itself.’); Jeannine Bell (n 16) 453.

  80. 80.

    See Boyd, Berk, and Hamner (n 77) 827; Martin, ‘Investigating Hate Crimes: Case Characteristics and Law Enforcement Responses’ (n 79) 476-478.

  81. 81.

    Boyd, Berk, and Hamner (n 77) 821.

  82. 82.

    Jenness and Grattet (n 78) 133.

  83. 83.

    See Interview in Palwal (Haryana) (n 73).

  84. 84.

    The Meerut riots of 1987 and the Bhagalpur riots of 1989 saw a great deal of police atrocities and police collusion in killing members of the minority community. In Meerut, the police had dragged out 23 young Muslim boys from Hashimpura, shot them dead and thrown their bodies into a nearby canal. See Asghar Ali Engineer, ‘Gujarat Riots in the Light of the History of Communal Violence’ (2002) 37(50) Economic and Political Weekly 5047, 5051. Zoya Hasan reiterates police complicity and bias by pointing towards the unconcealed cooperation between the RSS, the police and the local and district administration in the Aligarh riots of 1978. Through various enquiries into several riots (Ranchi, Bhiwandi, and Ahmedabad), Hasan highlights how communal bias is ‘apparent either in the selective imposition of the curfew or in the refusal to prevent organized mobs from looting and killing’. She further states that in Uttar Pradesh, the government could not prevent the recurrence of riots in Aligarh as they as they ‘lacked the requisite political will to take action against erring official and politicians who were responsible for communal violence’. See Zoya Khaliq Hasan, ‘Communalism and Communal Violence in India’ (1982) 10(2) Social Scientist 25, 35-36.

  85. 85.

    Common Cause & Lokniti–Centre for the Study Developing Societies, Status of Policing in India Report 2019: Policy Adequacy and Working Conditions (2019) 33.

  86. 86.

    ibid 34.

  87. 87.

    ibid 110-130.

  88. 88.

    ibid 119, 121.

  89. 89.

    ibid 126-127.

  90. 90.

    ibid.

  91. 91.

    Lipsky (n 14) 45-48.

  92. 92.

    Bell (n 16) 449.

  93. 93.

    On the constructive role of clear guidelines, see Bell (n 16) 454-457; Martin, ‘Investigating Hate Crimes: Case Characteristics and Law Enforcement Responses’ (n 79) 460-461, 471 (Jurisdictions like New York have a better record of investigating and prosecuting hate crimes because of the creation of dedicated bias crime units.). Also see Paul Jonson, ‘Hate Crime’ in Jennifer M Brown (ed), The Future of Policing (Routledge 2014) 324 (‘Equipping officers with the analytic tools and skills to appropriately and accurately identify and classify incidents is vital.’).

  94. 94.

    Quite shockingly, the entry level qualifications for constable in many states is completion of 10th or 12th standard and training. Substandard training and low qualifications for constables is contemptible as they constitute 86% of the state police forces and their tasks and responsibilities are wide ranging and involve intelligence gathering and surveillance work. See Status of Policing in India Report 2019: Policy Adequacy and Working Conditions (n 87) 78.

  95. 95.

    ibid 116.

  96. 96.

    The Status of Policing in India Report 2019: Policy Adequacy and Working Conditions (n 87) 17 highlighted how the police works at 77.4 percent of its sanctioned strength and the vacancies in the senior rank are higher than at the constabulary rank. This problem of vacancy exacerbates another problem of overburdened police force, which is the root cause of physical and mental fatigue in police. The sanctioned police strength is 181 police per lakh persons in 2016 but India had the strength of 137 police. The United Nations recommends having 222 police per lakh persons. See Chaturvedi (n 12) 1.

  97. 97.

    James B Jacobs and Kimberly Potter, Hate Crimes: Criminal Law & Identity Politics (Oxford University Press 1998) 96.

  98. 98.

    ibid 97.

  99. 99.

    Bell (n 16) 457.

  100. 100.

    See Mihir Desai, ‘Red Herring in Police Reforms’ (2009) 44(10) Economic and Political Weekly 8.

  101. 101.

    See The Constitution of India, 1950, Schedule VII List II Entry 2.

  102. 102.

    See Government of India, Fifth Report Second Administrative Reforms Commission: Public Order (2007) 27-60; Sections 3, 4 and 43 of The Police Act, 1861.

  103. 103.

    Prakash Singh v Union of India (2006) 8 SCC 1.

  104. 104.

    ibid. The Supreme Court directed that the Director General of Police (DGP) should not be chosen at the state’s discretion but should be selected from the three seniors most candidates who have been empaneled for promotion by the Union Public Service Commission. There were many other key directions like separation of investigation police from the law and order police, constitution of State Security commission and Police Establishment Board in every state.

  105. 105.

    The Status of Policing in India Report 2019: Policy Adequacy and Working Conditions (n 87) further brings to light how states have circumvented the directions given in Prakash Singh. The Supreme Court directed the states to ensure that key police officers are guaranteed a minimum tenure of two years. While the case has affected the percentage of transfers which was 16% in 2016, the number of transfers has still been significantly high in Uttar Pradesh and Haryana. The Wire provides us with an assessment of the state compliance status and reports that, ‘there has not been “a single case of full compliance” and that the governments have “either blatantly rejected, ignored, or diluted significant features of the directives”.’ Further, only 18 states were to have passed the new Police Act after the 2006 judgment. While the State Security Commission has been constituted in 27 states, conditions and requirements for constitution have been ignored. Additionally, the article notes that, ‘while “all states have constituted Police Establishment Board on paper but only Arunachal Pradesh complies with the directive fully.”’ See GV Bhatnagar, ‘No State Fully Complied With SC Directives on Police Reforms, Finds Study’ (The Wire, 23 April 2018). https://thewire.in/government/sc-police-reforms-directives. Accessed 20 March 2020.

  106. 106.

    Broken System: Dysfunction, Abuse, and Impunity in the Indian Police (n 7) 8.

  107. 107.

    ibid.

  108. 108.

    Aston Joshua and VN Paranjape, ‘Restructuring the Indian Police System: The Need for Accountability and Efficiency’ (2012) 1(2) Nirma University Law Journal 1, 11.

  109. 109.

    See Harsh Mander and others, Accountability for Mass Violence: Examining State’s Record (Centre for Equity Studies 2012) 253-317. In discussing the accountability of public officials in relation to communal violence, the Report points to the failure of the police in preventing violence, the bias of the police once the violence unfolds, and the subversion of the proceedings — crediting this to the political atmosphere. It argues that public officials, including politicians and civil servants, more often than not, foster communal violence. In the instance of Bhagalpur 1989, the Bhagalpur Commission of Inquiry accused the administration of suffering from ‘culpable amnesia, deliberate indifference and patent communal bias, incompetence in not anticipating the riot’. The Report also alleges that the legislations are framed in a manner that makes initiating proceedings against public official’s complex. Also see Prakash Singh, ‘Crime, Politics and Governance’ (India Seminar, June 2001). http://www.india-seminar.com/2001/502/502%20prakash%20singh.htm. Accessed 12 May 2020. In this article, Prakash Singh suggests that the police are used for political purposes. The functions of the police are hardly independent. In referring to the emergency period, he claims that most arrests and releases were made as a result of political consideration to favour the ruling party. According to him, the political leadership is not willing to grant any autonomy to police officials as having them under their administrative wing is a ‘convenient tool to further its partisan objectives.’

  110. 110.

    See Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 26) 3-5. This Report states that between January 2009 and October 2018, 90 percent of lynching and mob violence were reported after BJP came to power in May 2014, and 66 percent occurred in BJP-run states. Muslims were victims in 62 percent of the cases and Christians in 14 percent. Further, the Report documents the statements of politicians that encourage violence and justify the acts of cow protectors. Some statements are reproduced below,

    ‘Till cow is not accorded the status of ‘Rashtra Mata’ (Mother of the Nation) I feel the war for gau raksha (cow protection) will not stop even if gau rakshaks (cow protectors) are put into jails or bullets are fired at them.’ – T Raja Singh Lodh, BJP lawmaker, Telangana state, July 2018.

    ‘Those who are dying without eating beef, can go to Pakistan or Arab countries or any other part of world where it is available.’ – Mukhtar Abbas Naqvi, BJP union minister of state for parliamentary affairs, May 2015

    ‘We won’t remain silent if somebody tries to kill our mother. We are ready to kill and be killed.’ – Sakshi Maharaj, BJP member of parliament, on the killing of Mohammad Akhlaq, October 2015.

    Also see Lynching Without End: Fact Finding Investigation into Religiously-Motivated Vigilante Violence in India (n 30) 40. According to this Report, there are no stringent laws against hate speech in India. No hate speech cases have been made out against those instigating violence.

  111. 111.

    For instance, Yogi Adityanath, the BJP Chief Minister of Uttar Pradesh in November 2017 said, ‘There is only one way to protect Indian culture: to protect gau (cows), Ganga, and (goddess) Gayatri…Only the community that can protect this heritage will survive. Otherwise there will be a huge crisis of identity, and this crisis of identity will endanger our existence.’ See Violent Cow Protection in India: Vigilante Groups Attack Minorities (n 26) 4.

  112. 112.

    For some of these debates, see Ahmad (n 52); Vijayta Lalwani, ‘India Doesn’t Need a New Law to Curb Lynchings, Enforcing Existing Laws is Enough, Say Legal Experts’ (Scroll.in, 22 July 2018). https://scroll.in/article/887295/india-doesnt-need-a-new-law-to-curb-lynchings-enforcing-existing-laws-is-enough-say-legal-experts. Accessed 12 May 2020; The Print Team, ‘Can a New Lynching Law Prevent ‘Mobocracy’ or Does the Political Climate Need to Change?’ (The Print, 17 July 2018). https://theprint.in/talk-point/can-a-new-lynching-law-prevent-mobocracy-or-does-the-political-climate-need-to-change/83957. Accessed 12 May 2020.

  113. 113.

    See e.g. Bindu Doddahatti, ‘Calling it What it is: Why India Desperately Needs a Law on ‘Lynching’’ (The Leaflet, 1 October 2018). http://theleaflet.in/calling-it-what-it-is-why-india-desperately-needs-a-law-on-lynching. Accessed 12 May 2020; Vakasha Sachdev, ‘Do We Really Need a Specific Law on Mob Lynchings? Yes and No’ (The Quint, 25 July 2018). https://www.thequint.com/videos/q-rant/mob-lynching-law-supreme-court-needed. Accessed 12 May 2020.

  114. 114.

    ‘The only way to fix the problem of mob justice is to start with police reform,’ – See Swarajya Staff, ‘Answer To Mob Lynching Lies In Independent Police Machinery, Not in New Laws’ (Swarajya, 17 July 2018). https://swarajyamag.com/politics/answer-to-mob-lynching-lies-in-independent-police-machinery-not-in-new-laws. Accessed 12 May 2020; Sunil Prabhu and Nidhi Sethi, ‘“No Need For Law On Lynching”, Says BJP Despite Supreme Court Advice’ (NDTV, 19 July 2018). https://www.ndtv.com/india-news/no-need-for-separate-law-on-lynching-bjp-sources-after-supreme-court-remark-1886108. Accessed 12 May 2020.

  115. 115.

    ‘Bringing out a new law will not suffice as the other problems on the ground remain,’ – See Rebecca Mammen John, ‘Supreme Court Order on Mob Lynching Strong, But New Law Will be Useless Unless Existing Rules are Enforced’ (Firstpost, 17 July 2018). https://www.firstpost.com/india/supreme-courts-order-on-mob-lynching-is-strong-but-new-law-will-be-useless-as-long-as-existing-rules-arent-implemented-4759151.html. Accessed 12 May 2020; ‘A better-equipped, more intelligent enforcement mechanism working within the existing legislative and judicial system will be far more valuable and effective in addressing concerns of lynching,’ – See Sumathi Chandrashekaran, ‘New Law for Mob Lynching Will Drain Legislative Time, SC Order an Open Invitation to Further Politicise Situation’ (Firstpost, 17 July 2018). https://www.firstpost.com/india/new-law-for-mob-lynching-will-drain-legislative-time-supreme-courts-order-an-open-invitation-to-further-politicise-situation-4761471.html. Accessed 12 May 2020.

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Correspondence to M Mohsin Alam Bhat.

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M Mohsin Alam Bhat—Associate Professor, Vidisha Bajaj, Sanjana Arvind Kumar—Students.

This article is based on the empirical findings of the legal clinic ‘Hate Crimes and Criminal Justice System’ in 2018-2019. The student participants who conducted and assisted in the research are Shuchi Purohit, Gurbani Walia, Bhavya Shyam, Jagatjeet Singh, Tanessa Puri, Romit Sarkar, Arshiya Qasba Nabi, Monjima Tia Ghosh, Rhea Chokshi Sunit, Noyonika Borah, and Sahaana A Chhabria. The research was ably supported by Vasudha Jain, Raunaq Kwatra, Vedant Singh, Adya Singh, Mantika Kaur Kandhari and Karthik Ranganathan. The authors would also like to acknowledge the contribution of the student participants in the previous iteration of the legal clinic, especially Tanvi Bharti, Rohini Thyagarajan, Rishabh Bajoria, Tejasvini Puri, Rakshita Verma, Manasa Ramakrishna and Tanya Manglik. The authors would like to thank Harsh Mander, Farah Naqvi, Navsharan Singh, Pooja Satyogi, Teesta Setalvad, Mangla Verma, Vipul Kumar, Devika Prasad, Ankur Otta, Fawaz Shaheen, Mohammad Aamir Khan, Atreyee Majumder, Sumeet Mhaskar, Revati Laul, Sajjad Hasan, Talha Abdul Rahman, Mahtab Alam, Niha Masih, Kajori Sen, Suroor Mander, and the participants of the consultation organised by the Commonwealth Human Rights Initiative and JGLS on 27 October 2018 in New Delhi for participating in and supporting the legal clinic. The research would not have been possible without the institutional support of C. Raj Kumar, S.G. Sreejith and the administrative officers at JGLS. The authors would also like to thank Oishik Sircar, Joanna Perry, Vandita Khanna, Ankita Gandhi, and the anonymous peer-reviewer of Jindal Global Law Review (JGLR) for their valuable and perceptive comments.

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Bhat, M.M.A., Bajaj, V. & Kumar, S.A. The crime vanishes: Mob lynching, hate crime, and police discretion in India. Jindal Global Law Review 11, 33–59 (2020). https://doi.org/10.1007/s41020-020-00115-4

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Keywords

  • Hate crime
  • Mob lynching
  • Police discretion
  • Institutional bias
  • Communal violence