Objectionable features of The Rajasthan Protection from Lynching Bill, 2019

G S Gill

President 
Centre for Studies & Research of Constitutional Concepts
7300001111

gshergill55@gmail.com

The Rajasthan Protection from Lynching Bill, 2019.

Objectionable features of  The Rajasthan Protection from Lynching Bill, 2019

1. Presumption and presuppose of common intention.

It is the basic law that when any two or more persons are to be punished for  the act of any of them ,it is to be  established by the prosecution that there was a common intention . In this Bill deliberately such wordings have been omitted while  in the Manipur Ordinance and UP Draft Bill the words "common intention" are specifically mentioned . Such omission may facilitate the prosecution /investigation to book any person which may not be knowing the intention of the main person and might have gathered simply as a spectator. For common intention it is to be proved

i pre meeting of the mind before committing of the offence

ii  there should be an act by each of the person in furtherance of common intention

for ready reference Section 34 of the IPC is being reproduced

Section 34 in The Indian Penal Code

34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

In Rajasthan Bill word" Common Intention" is missing  a comparative chart  is being  submitted  for ready reference

Protection from Lynching Legal Provisions

issue	Manipur Ordinance	Uttar Pradesh  Bill	Rajasthan Bill
Meaning of Mob and Mens Rea	2(e) “mob” means a group of two or more individuals, assembled with a common intention of lynching;	2 (c) “mob” means a group of two or more individuals, assembled with common intention of lynching.	2 (e) “mob” means a group of two or more individuals;
Punishment	8. Punishment for offence of lynching. Whoever commits an act of lynching- (a) where the act leads to the victim suffering hurt, shall be punished with imprisonment of either description for a term which may extend upto seven years and with fine which may extend to one lakh rupees. (b) Where the act leads to the victim suffering grievous hurt, shall be punished with imprisonment of either description for a term which may extend upto ten years, and with fine which may extend to three lakh rupees. (c) where the act leads to the death of the victim, shall be punished with rigorous imprisonment for life and with fine which may extend to five lakh rupees.	7. Punishment for offence of lynching.- Whoever commits an act of lynching- (a) where the act leads to the victim suffering hurt, shall be punished with  imprisonment of either description for a term which may extend to seven years and with fine which may extend to one lakh rupees. (b) where the act leads to the victim suffering grievous hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and with fine which may extend to three lakh rupees. (c) where the act leads to the death of the victim, shall be punished with rigorous imprisonment for life and with fine which may extend to five lakh rupees.	8. Punishment for offence of lynching.- Whoever commits an act of lynching- (a) where the act leads to the victim suffering hurt, shall be punished with  imprisonment of either description for a term which may extend to seven years and with fine which may extend to one lakh rupees; (b) where the act leads to the victim suffering grievous hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and with fine which shall not be less than twenty five thousand rupees and may extend to three lakh rupees; (c) where the act leads to the death of the victim, shall be punished with rigorous imprisonment for life and with fine which shall not be less than one lakh rupees and may extend to five lakh rupees.

2  Conflict with basic law

The "mob " which is described in Bill is itself in conflict with the general connotation of "mob". Mob is the gathering  without common intention or object and without any relation or connection of the persons to each other who gathered there or used to gather . Crowd and Mob are synonym to each other .Mob never have" a group with common intention" so definition of "Mob" is misnomer here.

   Secondly the Apex court while issuing the direction to the state governments in curbing the Mob lynching used the word assembly which is described in Section 129 of CrPC .  The relevant part of the Apex Court Judgment is reproduced for ready reference

(vi) It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of CrPC, which, in his opinion, has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise.

Section 129 of CrPC is also being reproduced

Section 129 in The Code Of Criminal Procedure, 1973

129. Dispersal of assembly by use of civil force.

(1) Any executive Magistrate or officer in charge of a police station or, in the absence of such officer in charge, any police officer, not below the rank of a sub- inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly.

(2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub- section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law.

When the law  provides provisions to take action against memeber of any assembly which turned or declared unlaw ful  ,How its is justifiable to punish two or more persons  without being their overt act

3 Quantum  of punishment

 In the proposed Bill the quantum of punsihment is described as upto seven years for causing "hurt".

Hurt is not defined in the Bill but same is defined in Sectio 319 of the IPC and punishment is described upto period of one year only. Section 319 and 323 are being reproduced as below

Section 319 in The Indian Penal Code

319. Hurt.—Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.

Section 323 in The Indian Penal Code

323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.

In the CrPC  Schedule I the offence is NON COGNIZABLE , BAILABLE AND COMPOUNDABLE    while for the same act , offence will be  COGNIZABLE ,  NON BAILABLE AND  NON COMPOUNDABLE  . And punishabe upto seven Years insted of one year. The Apex Court observed to punish upto maximum of the sentence provided under the law .If taken together it is as grievous as murder because only in Section 303 of IPC  and  Anti High Jacking law  the minimum  and maximum punishment is same . Those offences are very grievous  while hurt is not grievous even for Section 8(a) of the proposed Bill 2019.

Furthermore lynching presupposes the killing itself but "hurt" means only causing pain so both can not be equated and weigh in the same balance.

4 Political misuse

In the  definitions Section 2 (d) of the proposed Bill 2019, "political affiliation" is also used so there is every possibility to invoke these provisions  for political motive to suppress the opponents or for vindictive purposes. Section 2 (d) of the proposed Bill 2019is reproduced for ready reference

“lynching” means 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;

assembly.

5 Concept of lynching

https://www.lexico.com/en/definition/lynch

lynch

·         (of a group of people) kill (someone) for an alleged offence without a legal trial, especially by hanging.

‘

Origin

Mid 19th century from Lynch's law, named after Capt. William Lynch, head of a self-constituted judicial tribunal in Virginia c1780.

https://dictionary.cambridge.org/dictionary/english/lynch

lynch

​

If a crowd of people lynch someone who they believe is guilty of a crime, theykill them without a legal trial, usually by hanging (= killing using a rope round the neck).

literal meaning of the word leads to two aspects in the act of lynching

1 commission of the offence by the offender  is the pre condition

2 commission of the offence of killing by the offender

G S Gill
President 
Centre for Studies & Research of Constitutional Concepts
7300001111

gshergill55@gmail.com