As the fault lines in the Punjab socio- religious inclusiveness deepen with every passing day, there is a rise in the number of episodes of people taking the law in their hands, while state acts as a mute spectator. The acceptance of any gruesome lynching is a portent departure from a tolerant civilisation to barbarianism. This downward spiraling coupled with the abracadabra by mute governments and their masters in light of the looming elections exhibits an obdurate behavior thereby adding fuel to the fire.
Mob-lynching is bringing back in vogue, the ancient precept of lex talionis, a justice system associated with the saying “an eye for an eye” as enshrined in the Hammurabi’s Code, which agitates against the fundamental canon of the rule of law. The broad acts of lynching must be condemned vehemently as an affront to the rule of law. The onus befalls upon the state to enact laws to instill deterrence in the minds of offenders and potential wrongdoers. The state must secure the constitutional values and protect people’s rights in these trying times where some forces coerce to destabilize the system, spread anarchy, and tear the fundamental fabric of democracy apart by foraying into turmoil and disorder.
Ida B Wells says “Our country’s national crime is lynching. It is not the creature of an hour, the sudden outburst of uncontrolled fury, or the unspeakable brutality of an insane mob” Any act of lynching by a mob is indefensible as it does not fall within the purview of the defense of “sudden and grave provocation” as provided under Section 300 of the Indian Penal Code. It is definitely not an equal and opposite reaction. The ultimate test is whether on the touchstone of reasonableness would these acts come out unscathed, therefore, any act of mob lynching cannot escape from the culpability threshold.
Rule of Law
A Constitution Bench of the Hon’ble Supreme Court of India headed by the then CJI Dipak Misra in Tehseen S. Poonawalla vs. Union of India (UOI) and Ors. [(2018) 9 SCC 501] has held as follows:
“Law, enacted for the benefit of the society by conferring rights on the citizens and to regulate social behaviour in many a sphere, is required to be implemented by the law enforcing agencies and the citizens are duty bound to follow the law treating it as sacred. Law has to be regarded as the foundation of a civilized society. It has been stated in Krishnamoorthy v. Sivakumar and Ors. (2015) 3 SCC 467, “the law, the mightiest sovereign in a civilized society”. The majesty of law cannot be sullied simply because an individual or a group generate the attitude that they have been empowered by the principles set out in law to take its enforcement into their own hands and gradually become law unto themselves and punish the violator on their own assumption and in the manner in which they deem fit.
Therefore, no matter what the compulsion, i.e. personal, political, social or perfidious, the Rule of law must prevail in all circumstances without exceptions. The power of the state and its inter-play with the criminal law, and the jurisprudence must see that justice is not only done but is seen to be done.
If we had the courage of conviction to condemn the crusaders who killed for the faith in the middle ages, and the mercenaries who in the name of their faith beheaded Daniel Pearl, in the same vain, we must unequivocally denunciate without compunction the recent mob lynching in the State of Punjab or elsewhere, and avow that the Rule of Law prevails without any limp.
Right to Life
In Francis Coralie Mullin vs The Administrator [1981 SCR (2) 516], Justice P. Bhagwati had said that Article 21 ‘embodies a constitutional value of supreme importance in a democratic society’. Further, Justice Iyer characterised Article 21 as ‘the procedural Magna Carta protective of life and liberty’. The Right to life is also protected under Article 3 of the UNHDR which states, “Everyone has the right to life, liberty and security of person.”
In the year 2000, the Hon’ble Supreme Court of India Shiromani Gurudwara Prabandhak Committee vs Shri Som Nath Dass [(2000) 4 SCC 146], had already declared the Sri Guru Granth Sahib as a juristic person. It had held hat “the very words Juristic Person connote recognition of an entity to be in law a person which otherwise it is not. In other words, it is not an individual natural person but an artificially created person which is to be recognised to be in law as such”…… In Pritam Dass Mahant Vs. Shiromani Gurdwara Prabandhak Committee, 1984 (2) SCC 600, followed by the judgment in 2000, the Supreme Court had held that the central body of worship in a Gurdwara is Guru Granth Sahib, the holy book, is a Juristic entity. Thus, like any other person, the rights of the Holy Granth are safeguarded under Article 21, the most organic provision of the Constitution of India which has also been regarded to be at the heart of the Indian Constitution. It is pertinent to remember that the incidents of sacrilege are punishable under Section 295A of the Indian Penal Code.
Unlike the other fundamental rights, the Right to Life is not subject to reasonable restrictions, no person can extinguish this right of another, and this is the foundation of our criminal jurisprudence. Thus, Sri Guru Granth Sahib being a juristic person, and the last and the only Guru of the Sikhs is entitled to protection by the State. It is imperative that the investigating agency and the judicial system must work in tandem to expeditiously dispose such matters of grave importance. The delay in disposal of such cases, apart from affecting the religious sentiments of a community, gives birth to another fear, as citizens begin to question their safety within the bounds of the State. Hence, the delay in adjudicating such matters ought not to be condoned.
However, it is equally important to examine the other side of the coin, i.e., in light of the principle “innocent until proven guilty beyond reasonable doubt” and rights of accused persons being protected under Article 22 of the Constitution, why do the people resort to such antics? Having said this, while we condemn these acts of desecration, it is equally imperative on the State to reverse engineer and contemplate the reason for the same. What is eroding the faith of the citizenry in the prosecution agencies and the police? Is it the utter delay? Back hand dealings or poor investigation? Could it possibly be delayed prosecution often leading to acquittal due to shoddy prosecution?
In a Constitutional democracy it is the secular state’s responsibility to not take positions but to rein in the bigots, and hobble its people in the solemn thread of the humane society. It is imperative to remember that crime has no religion. Hence, it is essential to bolster trust of the citizenry in the state machinery and well as respect for the Rule of Law. After all “Eye for an Eye will turn the whole World blind.”
(Jay Cheema is Lawyer, Bar-at-Law, Adjunct Professor)