SEVENTH REPORT OF VII STATE LAW COMMISSION

ON MOB LYNCHING (Along with draft bill of)

UTTAR PRADESH COMBATING OF MOB LYNCHING BILL, 2019

SUBMITTED BY:

JUSTICE ADITYA NATH MITTAL

CHAIRMAN

INDEX

CHAPTER CONTENTS PAGE NUMBERS

I INTRODUCTION 1-17

II NEWS PAPER CUTTINGS REGARDING MOB LYNCHING CASES

18-31

III EXISTING LAW 32-35

IV ANTI-MOB LYNCHING LAW IN OTHER COUNTRIES

36-62

V ANTI-MOB LYNCHING LAW IN OTHER STATES

63-94

VI EXTRACTS OF IMPORTANT

JUDGDMENTS OF SUPREME

COURT AND HIGH COURTS

95-112

VII NEED FOR NEW LEGISLATION FOR UTTAR PRADESH

113-118

VIII DRAFT BILL- UTTAR PRADESH COMBATING OF MOB LYNCHING BILL 2019

119-129

CHAPTER – I INTRODUCTION

CHAPTER – I

INTRODUCTION

The Rule of Law is the backbone of Indian Democracy. Article 21 of the

Constitution of India guarantees to every person his life and liberty which can

only be deprived according to procedure established by law. Every person in

India as well as the Government are supposed to follow the Rule of law. If the

death penalty by way of shooting publicly is not permitted under the law, it

cannot be so executed even by the Government for, howsoever, serious and

heinous crime may be.

The preamble of our Constitution provides for “the government of

people, by the people and for the people”, and it further expects prevalence of

genuine orderliness, positive propriety, dedicated discipline and sanguine

sanctity by constant affirmance of constitutional morality. The success and

failure of democracy depends largely on the extent to which civil liberties are

enjoyed by the citizens in general. It is the duty of law to protect every member

of the society from his fellow members and to prevent their rights and liberties

from being encroached upon. Communal harmony is also one of the important

aspects of every democracy and our constitution specifically refers to

secularism.

Our country is governed by the Rule of Law. According to which, no

person can be punished without the authority of law. Any person who commits

a crime can be punished through procedure established by law.

Despite all these safeguards available to the Citizens of India, there has

been a constant increase in the incidents of mob lynching. Merely, on the basis

of suspicion, the mob takes the law into their hands and imparts so called

“justice” by lynching him.

In the case of National Human Rights Commission vs. State of Gujrat

and others (2009) 6 SCC 342, Hon’ble the Apex Court observed as under:

“Communal harmony is the hallmark of a democracy. No religion teaches hatred. If in the name of religion, people are killed, that is essentially a slur and blot on the society governed by the rule of law. The Constitution of India, in its Preamble refers to secularism. Religious fanatics really do not belong to any religion, they are “no better than terrorists who kill innocent people for no rhyme or reason in a society which as noted above is governed by the rule of law.”

The rule of law can prevail only if people and institutions respect and follow the laws.

Justice Dipak Misra, in S. Krishna Sradha v. State of A.P., (2017) 4 SCC 516, para 27 observed that

“A right is conferred on a person by the rule of law and if he seeks a remedy through the process meant for establishing the rule of law and it is denied to him, it would never subserve the cause of real justice.”

Justice Dr A.K. Sikri, in Cardamom Mktg. Corpn.v. State of Kerala, (2017) 5 SCC 255, para 13 observed that:

“When we talk of sound and stable system of administration of justice, all the stakeholders in the said legal system need to be taken care of………..The Rule of Law reflects a man’s sense of order and justice. There can be no Government without order; there can be no order without law…….”

It is the constitutional responsibility of the government to provide governance and maintain law and order and the responsibility lies on the state to protect life and property of the citizens. In this regard the police have the predominant role to play. Basically the success of the constitution largely depends upon the efficiency and effectiveness of criminal justice administration.

The criminal justice administration is the backbone of a peaceful society. The society should be made free from crimes so that every citizen of our country can lead a peaceful life and enjoy their rights. It is only possible through efficient criminal justice administration, which is one of the cornerstones of good governance. The criminal justice administration must perform its duty by punishing perpetrators of crime

/lynchers without any delay to inspire confidence and create an attitude of respect for the rule of law. But unfortunately many a time the police is not ready to register the FIR. If police registers an FIR, either a very weak case is made out or there are so many flaws in the case prepared that it cannot stand on the judicial scrutiny of the court and it ultimately helps the accused in acquittal YET the victim could not get justice. Justice eludes the victims. The criminal justice administration should maintain balance in the society in order to prevent crime and deliver justice to the victim.

Our Prime Minister Hon’ble Mr. Narendra Modi on June 29, 2017 slams so called ‘Gau Rakshak’. He said, killing in the name of Gau Bhakti is wrong, no person is allowed to take the law in their own hand. It is unfortunate that in the name of cow protection the human being are killed by so called ‘Gau Rakshak’. He said we are a land of non-violence, What are we doing? Does this country belong to Mahatma Gandhi and Vinoba Bhabe? Mahatma Gandhi would never approve of the present situation, there is no place for violence in India. He said “Let’s work together and create the India of Mahatma Gandhi’s dreams, lets create an India our freedom fighters would be proud of”. But a few hours before Prime Minister Narendra Modi invoked Mahatma Gandhi in an appeal to end such killings, an occupant of a van transporting meat was lynched in Ramgarh, Jharkhand.

Now the then President Hon’ble Mr. Pranab Mukherjee comments on the increasing incidents of lynchings, he said on July 1, 2017 that when “mob frenzy becomes so high and irrational, uncontrollable”, people “have to pause and reflect” and be proactively “vigilant” to “save the basic tenets of our country.” He has also asked the country to stand up against the rising trend of mob lynchings, stressing that the frenzy needed to be curbed.

But in India criminals have realised that the possibility of punishment is too remote, and hence they are flouting laws and orders. If government wants to uphold the rule of law in the country, it should prosecute and punish the criminals, otherwise it would be difficult to get any reasonable rule of law in the country.

I would like to appreciate that our Prime Minister has spoken something after the silent protest ‘Not in My Name’ throughout India and

even abroad. But merely lip service is not the solution of the problem. It is high time to take strict action against the so called ‘Gau Rakshak’. The government should uphold the rule of law by punishing those who involved, such kinds of incident of lynching in different part of the country. It is necessary that the government has to from the anti-lynching squad to prevent these kinds of lynching throughout India. It is also necessary that ‘Anti-lynching law’ should be passed.”

Certainly, there is a need to pass law prohibiting the mob lynching

because the current law contained in the Indian Penal Code in Section 302

(Murder), 307 (Attempt to Murder), 323 (Causing voluntary hurt), 147

(Rioting), 148 (Rioting, armed with deadly weapon) and 149 (Unlawful

Assembly) is not sufficient to meet the incidents of mob lynching for various

reasons which shall be discussed later on.

Now, the question arises as to what is meant by lynching?

“According to the Oxford English dictionary, lynching refers to the act

of killing/s done by a mob without any legal authority or process involved.

In older times, such acts of lynching used to involve hanging a person to

death. The mob usually killed someone accused of a wrongdoing based on their

suspicion and without looking into available evidence. Lynching is considered

as a major crime like murder or rape. The mob serving as “judge”, jury and

executioner” would carry out their spontaneous or pre-planned act of killing

with absolute impunity and without any fear of law.”

Hon’ble the Supreme Court has shown its concern in various cases and

has directed the Government to make special law on the subject which should

provide not only for the punishment of the wrongdoers but also provisions for

compensation as well as rehabilitation. It has further directed that it is the

responsibility of the State administration in association with the Intelligence

Agencies to prevent occurrence as well as recurrence of communal violence in

any part of the State.

In Tehseen S. Poonawalla vs. Union of India and Others, (2018) 9

SCC 501, Hon’ble the Apex Court dealing with the problem, has suggested

preventive measures, remedial measures as well as punitive measures, in the

following words:

Preventive Measures The State Governments shall designate, a senior police officer,

not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news. The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years within a period of three weeks.

The Secretary, Home Department of the States concerned shall issue directives/advisories to the Nodal Officers of the districts concerned for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice. The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents. The Director General of Police/the Secretary, Home Department of the States concerned shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of Cr PC, which in his opinion has a tendency to cause violence or wreak the havoc of

lynching in the disguise of vigilantism or otherwise. The Home Department of the Government of India must take initiative and work in co-ordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law. The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands. The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police Department of the States that lynching and mob violence of any kind shall invite serious consequence under the law. It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind. The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind. The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.

Remedial Measures Despite the preventive measures taken by the State Police, if it

comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.

It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in

the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be. The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of Cr. PC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching. The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. This direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial. To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC. The courts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness. The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction,

acquittal or sentencing. The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.

Punitive Measures Wherever it is found that a police officer or an officer of the

district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance. The States are directed to take disciplinary action against the officials concerned if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

The directed measures should be carried out within four

weeks by the Central and the State Governments, and compliance

report also to be filed within that period. Further, the Parliament is

recommended to create a separate offence for lynching and provide

adequate punishment for the same which would instill a sense of fear of

law amongst the people who involve themselves in such kinds of

activities. There can be no trace of doubt that fear of law and veneration

for the command of law constitute the foundation of a civilized society.”

In accordance with the directions of the Hon’ble Apex Court, the

proposed law on the subject of mob lynching must provide for the aforesaid

preventive, remedial as well as punitive measures.

Hon’ble the Apex Court in Kodungallur Film Society and another vs.

Union of India and others reported in (2018) 10 Supreme Court Cases 713,

dealing with the guidelines/recommendations in destruction of public and

private properties has also considered the aspect of mob violence. The Hon’ble

Apex Court has held as follows:-

“At this stage, it would be apposite to also consider the judgment rendered by a three-Judge bench of the Supreme Court in Tehseen S. Poonawalla (2018) 9 SCC 501, where the Supreme Court had to deal with a specific type of mob violence and the resulting restraints on personal liberty and free speech. Taking note of burgeoning instances of vigilantism and lynching, the Supreme Court propounded that the States had the duty to ensure that individuals or groups did not take the law into their own hands to prevent untoward incidents and to prevent crime which may include damage caused to property. The recommendations comprehensively set out the manner in which the State and law-enforcement agencies are expected to deal with the menace of mob violence specifically lynching and vigilantism and further, assign responsibility and accountability to officials to curb such incidents as also punitive measures to deter law enforcement agencies from shirking their duties.”

One of the most stringing descriptions of the dangers of mob violence

was Mark Twain’s response to a racial lynching in Missouri in 1901. He saw

in it the danger of America turning into “United States of Lyncherdom”. The

secular Republic of India more than a century later, appears to be amidst the

shadow of a similar fear.

There have been incidents of mob lynching in Uttar Pradesh also in

the name of “Cow Vigilantes” “Gau Rakshak”, “Beef Lynching”, “Cow

Slaughter”, “Cow Thieves”, “Beef Smuggling” and Cattle Trader. Dadri (Uttar

Pradesh) in the year 2015, invited huge attention because on 20.09.2015, a 52

year old Iron Smith was dragged from his house in the village of Bisahara,

District-Gautam Budh Nagar, after a local Hindu Temple announced that the

cow considered sacred by many Hindus had been slaughtered by him. The

victim was beaten to death and son also received injuries. Another incident

took place in district Bulanshahr and Police Outpost-Chingrawathi, Tehsil-

Syana, was set to fire and Inspector Subodh Kumar and one more person died

while seven police personnel, including Circle Officer got injuries. Hon’ble

Chief Minister of Uttar Pradesh, Shri Yogi Aditya Nath, took a quick

response and due to which, it could not flare up further. In other States, there

have been incidents of mob lynching on the suspicion of child lifting, suspected

thief, suspected kidnapping of girl and on other grounds.

It is necessary to point out that we have ample provisions in our criminal

law to punish the wrongdoers but certainly the growing incidents of mob

lynching need further specific attention by making provision for preventive

measures as well as for rehabilitation measures. It is also not out of the way to

say that the victims of mob lynching are also compelled to leave their parental

homes. Such incidents took place in the District of Muzaffar Nagar of Uttar

Pradesh, where some miscreants after committing violence compelled the

residents of a particular community to vacate their houses forever. The

extradition of Kashmiri Pandits from Kashmir by the so called Locals is also

one of the instances where they have to leave their home permanently. The

grand massacre of SIKHS after assassination of the then Prime Minister Mrs.

Indira Gandhi is also one of the instance of Mob Lynching. Certainly, such

incidents need special attention of the State Government so as to discourage and

prevent such incidents.

Recently on 24th June, 2019, there was an open

debate on India News TV Channel regarding the Jharkhand lynching case. In

Jharkhand, the victim was targeted by the culprits on the suspicion of a theft at

Dhatkidih village on the night of 18th June. Despite him pleading that he was

innocent and should be spared, they beat him up badly. He was rescued by the

police in the early hours of the next day and taken into hospital for treatment.

Following a theft complaint by the villagers against him, he was arrested and

produced in Court, who sent him to jail. On June 22th, his condition certainly

worsened and he was admitted in the district headquarter hospital where he

died. Most of the panelists stated that recently, there have been more than 250

cases of mob lynching in India, out of which 38% related to suspected

slaughtering of cows. It was also told in the debate that about 50% victims were

Muslims. However, no data is available with the Commission; therefore, the

Commission is not in a position to comment on such data.

The Times of India, Lucknow, has also published its editorial on June 26,

2019 which speaks that Jharkhand vigilantism exposes deep police malaise and

underlines need for reforms. The editorial has further stated that police force

have been found wanting in many States. Caught between the sense of

entitlement of VIPs and severe resource crunch, they prioritise keeping Netas

happy over tackling crime. As a result of biases creep in and police go slow in

cases where perpetrators appear to be in sync with the political regime of the

day. Jharkhand’s law and order situation underlines the crying need for police

reforms across India, to equip and incentivize the force to serve citizens

competently.

The Hindi Dainik Jagran also in its editorial dated 26th June, 2019 has

condemned the incidents of mob lynching and has mentioned that now the

Police, Doctors and other Non-governmental persons are also victims of mob

lynching. This editorial has further stated some recent incidents of Mathura.

On 26th June, 2019, Prime Minister Hon’ble Sri Narendra Modi, while

answering in RAJYA SABHA on Presidential Address condemned the

Jharkhand lynching and has said that the culprits should get maximum

punishment. This news has been published in almost all the leading news

Papers of India and abroad. Hon’ble Prime Minister further added that all such

violence, whether in Jharkhand, West Bengal or Kerala, must invite uniform

condemnation so that the perpetrators understand that there is strong political

consensus against them.

Recently, Union Cabinet Minister for Minorities, Shri Mukhtar Abbas

Naqvi, has also condemned the incidents of mob lynching and news in Dainik

Jagran dated 26.6.2019 further mentions that a Public Interest Litigation has

been filed in the Jharkhand High Court stating that since 2016 till date, about 18

persons have been killed but the State Government is not taking any effective

steps. It has further mentioned that such incidents are not properly investigated.

It has further stated that the State Government has not followed the guidelines

issued by the Hon’ble Supreme Court.

Hon’ble Mr. Justice S.U. Khan, delivering his judgment in Mohd.

Mohsin and another vs. District Judge, Meerut and others (2007) 69 ALR 696

(All) had also shown concern in the matters of landlord and tenant and has

expressed view that due to long litigation, the patience of landlords is being

exhausted. The relevant paragraph of the said judgment is as follows:

“The intention of the defendants appears quite clear that they do not want to allow the suit to be decided. Probably, the tenants are waiting for the moment when patience of the landlady exhausts, she loses faith in the judicial system and contacts house mafias to get the house in dispute vacated. This is not an imaginary scenario, it is actually happening. Recently, Supreme Court has orally observed that in view of recent happenings of lynching of people in Bihar, the judiciary must do some introspection and adopt the measures of quick dispensation of justice. First two sentences of today’s editorial of newspaper Hindustan Times, Lucknow are quoted below: “A Bench of the Supreme Court on Monday gave ample evidence that the judiciary, at lease at the higher level, is not blind to its own limitations or faults. It bravely took responsibility for the rising incidents of mob justice in the country by attributing it to the fact that people were fast losing faith in the courts due to long delays in the disposal of cases”

The Commission in its study also feels that the existing law to combat

mob lynching is not sufficient for various reasons to be discussed later on but

certainly, there should be a separate law to combat mob lynching which should

not only provide for punishment to the wrongdoers but also fix the liability of

public authorities responsible for maintaining law and order as well as for

providing compensation to the victim of the family for the loss of person and

property as well as for grievous injury. To combat with the terror and

apprehension of repeat incidents, there should also be provisions for

rehabilitation of the victims and their families so as to provide for complete

protection.

As per the data available on “India spend” website, in Uttar Pradesh,

since 2012 to 2019, about 50 incidents have taken place in which there are

about 50 victims. Out of these victims, 11 persons were killed while 25 were

major assaults.

In the backdrop of aforesaid situation, the Commission has taken up this

study suo motu and accordingly recommending to the State Government to

make a comprehensive law to combat mob lynching. The Commission is

providing Draft Bill which is annexed to this report.

The Commission is thankful to Shri Brajesh Pathak, Hon’ble Cabinet

Minister for Law and Justice, Additional Energy Resources, Political Pension,

U.P. Dr. Neelkanth Tiwari, Hon’ble State Minister for Law and Justice,

Information, Sports and Youth Welfare, U.P., Shri Sanjay Khare, HJS,

Principal Secretary, Legislative Department, Government of U.P. for their

valuable guidance and suggestions. The Commission is also thankful to Smt.

Sapna Tripathi, HJS, Full Time Secretary of the Commission for extending her

valuable support and assistance in preparation of this report.

(Justice Aditya Nath Mittal) Chairman

Date: 03 July 2019

CHAPTER-II NEWS PAPER CUTTINGS

CHAPTER-III

EXISTING LAW

CHAPTER-III

EXISTING LAW

CONSTITUTION OF INDIA

Article 21. Protection of life and personal liberty- No person shall be

deprived of his life or personal liberty except according to procedure established

by law.

INDIAN PENAL CODE 141. Unlawful assembly.- An assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is-

First.- To overawe by criminal force or show of criminal force, [the Central or any State Government or Parliament or the Legislature of any State], or any public servant in the exercise of the lawful power of such public servant; or

Second.- To resist the execution of any law, or of any legal process; or

Third.- To commit any mischief or criminal trespass, or other offence; or

Fourth.- By means of criminal force or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

Fifth.- By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.- An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.

147. Punishment for rioting.- Whoever is guilty of rioting, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

148. Rioting, armed with deadly weapon.- Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used as a weapon of offence, is likely to cause death, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

302. Punishment of murder.- Whoever commits murder shall be punished with death, or [imprisonment for life], and shall also be liable to fine.

307. Attempt to murder.- Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to [imprisonment for life], or to such punishment as is hereinbefore mentioned.

Attempts by life-convicts.- [When any person offending under this section is under sentence of A [imprisonment for life], he may, if hurt is caused, be punished with death]

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.

325. Punishment for voluntarily causing grievous hurt.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

326. Voluntarily causing grievous hurt by dangerous weapons or means.- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood or by means of any animal, shall be punished with A[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

436. Mischief by fire or explosive substance with intent to destroy house, etc.- Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

CODE OF CRIMINAL PROCEDURE Section: 223: What persons may ;be charged jointly:- The following

persons may be charged and tried together, namely-

(a) Persons accused of the same offence committed in the course of

same transaction,

(b) Persons accused of an offence and persons accused of

abatement of , or attempt to commit such offence,

(c) Persons accused of more than one offence of the same kind,

within the meaning of section 219 committed by them jointly

within the period of twelve months,

(d) Persons accused of different offences committed in the course

of the same transaction………………

******************************************

CHAPTER-IV ANTI-MOB LYNCHING LAW IN OTHER

COUNTRIES

CHAPTER-IV

ANTI-MOB LYNCHING LAW IN OTHER COUNTRIES

REPUBLIC OF SOUTH AFRICA

PREVENTION AND COMBATING OF HATE CRIMES AND HATE

SPEECH BILL

(As introduced in the National Assembly (proposed section 75); explanatory summary of Bill published in Government Gazette No. 41543 of 29 March 2018)

(The English text is the offıcial text of the Bill)

(MINISTER OF JUSTICE AND CORRECTIONAL SERVICES) GENERAL EXPLANATORY NOTE:

BILL To give effect to the Republic’s obligations in terms of the Constitution and international human rights instruments concerning racism, racial discrimination, xenophobia and related intolerance, in accordance with international law obligations; to provide for the offence of hate crime and the offence of hate speech and the prosecution of persons who commit those offences; to provide for appropriate sentences that may be imposed on persons who commit hate crime and hate speech offences; to provide for the prevention of hate crimes and hate speech; to provide for the reporting on the implementation, application and administration of this Act; to effect consequential amendments to certain Acts of Parliament; and to provide for matters connected therewith.

PREAMBLE

SINCE the Constitution of the Republic of South Africa, 1996, commits the Republic of South Africa and its people to establish a society that is based on democratic values of social justice, human dignity, equality and the advancement of human rights and freedoms, non-racialism and non-sexism; AND MINDFUL THAT— ● section 9(1) of the Constitution provides that everyone is equal before the law and has the right to equal protection and benefit of the law; ● section 9(3) and (4) of the Constitution provides that neither the State nor any person may, directly or indirectly, discriminate unfairly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth, and that national legislation must be enacted to prevent or prohibit unfair discrimination; ● section 10 of the Constitution provides that everyone has inherent dignity and the right to have their dignity respected and protected; ● the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 (Act No. 4 of 2000), prohibits unfair discrimination, hate speech and harassment and requires the State to promote the constitutional imperatives enshrined in section 9 of the Constitution; and ● section 16 of the Constitution gives everybody the right to freedom of expression, including— – freedom of the press and other media; – freedom to receive or impart information or ideas; - freedom of artistic creativity; and – academic freedom and freedom of scientific research, but that the right to freedom of expression does not extend to— – propaganda for war; – incitement of imminent violence; or – advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm; AND BEARING IN MIND THAT—

● section 7(2) of the Constitution provides that the State must respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights, which is the cornerstone of democracy in South Africa; ● section 8(2) of the Constitution provides that a provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right; ● the severity of the emotional and psychological impact of hate crimes and hate speech extends beyond the victim, to the group to which the victim belongs or is perceived to belong; and ● South Africa has committed itself to uphold the Declaration adopted at the United

Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban;

AND SINCE the International Convention on the Elimination of All Forms of Racial Discrimination, to which the Republic is a signatory, requires States Parties to declare, among others, an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin,

ARLIAMENT of the Republic of South Africa therefore enacts as follows:—

Definitions 1. In this Act, unless the context indicates otherwise— ‘‘communication’’ includes any— (a) display; (b) written, illustrated, visual or other descriptive matter; (c) oral statement; (d) representation or reference; or (e) an electronic communication,

and ‘‘communicates’’ and ‘‘communicated’’ have a corresponding meaning; ‘‘court’’ means a Division of the High Court or a magistrate’s court for any regional division established in terms of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944); ‘‘Criminal Procedure Act’’ means the Criminal Procedure Act, 1977 (Act No. 51 of 1977); ‘‘data’’ means electronic representations of information in any form; ‘‘data message’’ means data generated, sent, received or stored by electronic means;

‘‘Director of Public Prosecutions’’ means a Director of Public Prosecutions appointed in terms of section 13 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); ‘‘electronic communication’’ means a communication by means of data messages; ‘‘electronic communications system’’ means any electronic communications infrastructure or facility used for the conveyance of data; ‘‘harm’’ means any emotional, psychological, physical, social or economic harm; ‘‘hate crime’’ has the meaning assigned to it in terms of section 3(1); ‘‘hate speech’’ has the meaning assigned to it in terms of section 4(1); ‘‘intersex’’ means a congenital sexual differentiation which is atypical, to whatever degree; ‘‘National Director of Public Prosecutions’’ means the person appointed as such by the President in terms of section 10 of the National Prosecuting Authority Act, 1998 (Act No. 32 of 1998); ‘‘prescribed’’ means prescribed by regulation; ‘‘this Act’’ includes the regulations made in terms of the Act; and

P

‘‘victim’’ means a person, including a juristic person, or group of persons, against whom an offence referred to in section 3 or 4 has been committed.

Objects of Act

2. The objects of this Act are to— (a) give effect to the Republic’s obligations regarding prejudice and intolerance as contemplated in international instruments; (b) provide for the prosecution of persons who commit offences referred to in this Act and provide for appropriate sentences; (c) provide for the prevention of hate crimes and hate speech; (d) provide for effective enforcement measures; (e) provide for the co-ordinated implementation, application and administration of this Act; (f) combat the commission of hate crimes and hate speech in a co- ordinated manner; and

(g) gather and record data on hate crimes and hate speech. Offence of hate crime 3. (1) A hate crime is an offence recognised under any law, the commission of which by a person is motivated by that person’s prejudice or intolerance towards the victim of the crime in question because of one or more of the following characteristics or perceived characteristics of the victim or his or her family member or the victim’s association with, or support for, a group of persons who share the said characteristics: (a) age; (b) albinism; (c) birth; (d) colour (e) culture; (f) disability; (g) ethnic or social origin; (h) gender or gender identity; (i) HIV status; (j) language; (k) nationality, migrant or refugee status; (l) occupation or trade; (m) political affiliation or conviction; (n) race; (o) religion; (p) sex, which includes intersex; or (q) sexual orientation.

(2) Any person who commits a hate crime is guilty of an offence and liable on conviction to a sentence as contemplated in section 6(1). (3) Any prosecution in terms of this section must be authorised by the Director of Public Prosecutions having jurisdiction or a person delegated thereto by him or her.

Offence of hate speech 4. (1) (a) Any person who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably be construed to demonstrate a clear intention to— (i) be harmful or to incite harm; or

(ii) promote or propagate hatred, based on one or more of the following grounds: (aa) age; (bb) albinism; (cc) birth; (dd) colour; (ee) culture; (ff) disability; (gg) ethnic or social origin; (hh) gender or gender identity; (ii) HIV status; (jj) language; (kk) nationality, migrant or refugee status; (ll) race; (mm) religion; (nn) sex, which includes intersex; or (oo) sexual orientation, is guilty of an offence of hate speech. (b) Any person who intentionally distributes or makes available an electronic communication which that person knows constitutes hate speech as contemplated in paragraph (a), through an electronic communications system which is— (i) accessible by any member of the public; or (ii) accessible by, or directed at, a specific person who can be considered to be a victim of hate speech, is guilty of an offence. (c) Any person who intentionally, in any manner whatsoever, displays any material or makes available any material which is capable of being communicated and which that person knows constitutes hate speech as contemplated in paragraph (a), which is accessible by, or directed at, a specific person who can be considered to be a victim of hate speech, is guilty of an offence. (2) The provisions of subsection (1) do not apply in respect of anything done as contemplated in subsection (1) if it is done in good faith in the course of engagement in—

(a) any bona fide artistic creativity, performance or other form of expression, to the extent that such creativity, performance or expression does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a);

(b) any academic or scientific inquiry; (c) fair and accurate reporting or commentary in the public interest or in the publication

of any information, commentary, advertisement or notice, in accordance with section 16(1) of the Constitution of the Republic of South Africa, 1996; or

(d) the bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings, to the extent that such interpretation and proselytisation does not advocate hatred that constitutes incitement to cause harm, based on one or more of the grounds referred to in subsection (1)(a).

(3) Any prosecution in terms of this section must be authorised by the Director of Public Prosecutions having jurisdiction or a person delegated thereto by him or her. Victim impact statement

5. (1) For purposes of this section, a victim impact statement means a sworn statement or

affirmation by the victim or someone authorised by the victim to make a such statement on behalf of the victim, which contains the physical, psychological, social, economic or any other consequences of the offence for the victim and his or her family member or associate.

(2) The prosecutor must, when adducing evidence or addressing the court on sentence in respect of an offence under this Act, consider the interests of a victim of the offence and the impact of the offence on the victim and, where practicable, furnish the court with a victim impact statement provided for in subsection (1).

(3) The contents of a victim impact statement are admissible as evidence, unless the court, on good cause shown, decides otherwise.

Penalties or orders 6. (1) Subject to subsection (2), any person who is convicted of an offence referred to in

section 3 is liable, on conviction, to any of the following forms of penalties which the court sentencing the person considers appropriate and which is within that court’s penal jurisdiction:

(a) Imprisonment, periodical imprisonment, declaration as an habitual criminal,

committal to any institution established by law, a fine, correctional supervision or imprisonment from which a person may be placed under correction supervision, as contemplated in section 276 of the Criminal Procedure Act; or

(b) postponement or suspension of the sentence or a caution or reprimand, as

contemplated in section 297 of the Criminal Procedure Act. (2) If a person is convicted of an offence referred to in section 3, the court that imposes the sentence must— (a) if section 51 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), is not applicable; and (b) in the case of— (i) damage to, the loss of, or the destruction of, property or the loss of money; (ii) physical, or other injury; or (iii) loss of income or support, suffered by the victim as a result of the commission of the offence, regard the fact that the person has been convicted of a hate crime as an aggravating circumstance. (3) Any person who is convicted of an offence referred to in section 4 is liable, in the case of— (a) a first conviction, to a fine or to imprisonment for a period not exceeding three years, or to both a fine and such imprisonment; and (b) any subsequent conviction, to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment. Directives

7. The National Director of Public Prosecutions must, after consultation with the Director-General: Justice and Constitutional Development and the National Commissioner of the South African Police Service, issue directives regarding all matters which are reasonably necessary or expedient to be provided for, and which must be complied with by all members of the prosecuting authority who are tasked with the institution and conduct of prosecutions in cases relating to hate crimes and hate speech, in order to achieve the objects of this Act, including the following:

(a) The manner in which cases relating to hate crimes and hate speech are to be dealt with, including—

(i) the circumstances in which a charge in respect of such an offence may be withdrawn or a prosecution stopped; and (ii) the leading of relevant evidence indicating the presence of prejudice or intolerance towards the victim, in order to secure a conviction contemplated in section 3(2); and (b) the collection and analysis of information contemplated in section 8.

Reporting on implementation of Act

8. (1) The Cabinet member responsible for the administration of justice must— (a) after consultation with the Cabinet member responsible for policing, prescribe the

information that must be collected and collated by the South African Police Service; and

(b) after consultation with the National Director of Public Prosecutions, prescribe the information that must be collected and collated by the National Prosecuting Authority,

in order to enable effective monitoring, analysis of trends and interventions and to provide quantitative and qualitative data, in respect of the prevention and combating of hate crimes and hate speech.

(2) The information contemplated in subsection (1) must be made available in the prescribed manner and at the prescribed times to—

(a) Parliament; (b) the Chairperson of the South African Human Rights Commission; (c) the Chairperson of the Commission for Gender Equality; and (d) the Chairperson Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities. Prevention of hate crimes and hate speech 9. (1) The State, the South African Human Rights Commission and the Commission for

Gender Equality have a duty to promote awareness of the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences

(2) Without derogating from the general nature of the duty referred to in subsection (1), one or more Cabinet members, designated by the President, must cause programmes to be developed in order to—

(a) conduct education and information campaigns to inform the public about the prohibition against hate crimes and hate speech, aimed at the prevention and combating of these offences; (b) ensure that all public officials who may be involved in the investigation and

prosecution of hate crimes and hate speech are educated and informed of the prohibition against these offences;

(c) provide assistance and advice to any person who wants to lodge a complaint of a hate crime or hate speech; and

(d) train public officials on the prohibition, prevention and combating of hate crimes and hate speech, which training must include social context training. (3) The South African Judicial Education Institute established in terms of section 3 of the South African Judicial Education Institute Act, 2008 (Act No. 14 of 2008), must develop and implement training courses, including social context training courses, for judicial officers for purposes of presiding in court proceedings, for the purposes of this Act.

Regulations 10. (1) The Cabinet member responsible for the administration of justice may or must, where applicable, make regulations regarding any matter which is required or permitted by this Act to be prescribed by regulation or any other matter which is necessary or expedient to prescribe in order to achieve the objects of this Act. (2) Regulations made under this section— (a) must be submitted to Parliament for approval 60 days prior to the publication thereof in the Gazette; (b) which are not approved within the 60-day period referred to in paragraph (a) are deemed to have been approved by Parliament; and (c) which may result in expenditure for the State, must be made in consultation with the Cabinet member responsible for finance. Laws amended 11. The laws referred to in the second column of the Schedule are hereby amended to the extent indicated in the third column of the Schedule. Short title and commencement 12. This Act is called the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018, and comes into operation on a date fixed by the President by proclamation in the Gazette.

SCHEDULE AMENDMENTS

(Section 11)

Number and year of law- Act No. 51 of 1977 Short title - Criminal Procedure Act, 1977 Extent of amendment 1. The amendment of section 18—

(a) by the substitution for paragraph (a) of the following paragraph: ‘‘murder, including murder which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018;’’;

(b) by the substitution for paragraph (c) of the following paragraph: ‘‘robbery, if aggravating circumstances were present or if the victim of the robbery was also a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018;’’; and

(c) by the substitution for paragraph (f) of the following paragraph: ‘‘rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, including

rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018;’’.

2. The insertion after section 270 of the following section: ‘‘Hate crimes 270A. If the evidence on a charge for a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018, does not prove the commission of the offence so charged but proves the commission of the underlying offence on which the hate crime is based, the accused may be found guilty of the underlying offence in question so proved.’’. 3. The amendment of Schedule 5 by the insertion after the item 10 of the following item:

‘‘Arson, housebreaking, whether under the common law or a statutory provision, with the intention to 8 Number and year of law Short title Extent of amendment commit an offence, or an offence referred to in section 1 of the Intimidation Act, 1982 (Act No. 72 of 1982), any of which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’.

4. The amendment of Schedule 6— (a) by the deletion in item 1 of the word ‘‘or’’ at the end of paragraph (b)(i); (b) by the insertion in item 1 of the word ‘‘or’’ at the end of paragraph (b)(ii); (c) by the addition in paragraph (b) of item 1 of the following subparagraph: ‘‘(iii) a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018;’’;

(d) by the substitution in paragraph (c) of item 1 for subparagraphs (i) and (ii) of the following paragraphs:

‘‘(i) rape or compelled rape as contemplated in section 3 or 4 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, including rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018; or

(ii) robbery with aggravating circumstances or if the victim of the robbery was

also a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018; or’’;

(e) by the deletion in item 2 of the word ‘‘or’’ at the end of paragraph

(b)(ii); (f) by the insertion in item 2 of the word ‘‘or’’ at the end of paragraph (b)(iii); (g) by the addition in paragraph (b) of item 2 of the following subparagraph: ‘‘(iv) is a victim of a hate crime as defined in section 1 of the Prevention and

Combating of Hate Crimes and Hate Speech Act, 2018; or’’;

(h) by the substitution for item 4 of the following item:

‘‘Robbery[, involving]— (a) involving the use by the accused or any co-perpetrators or participants of a firearm

(b) involving the infliction of grievous bodily harm by the accused or any of the coperpetrators or participants; [or] (c) involving the taking of a motor vehicle; or

(d) where the victim is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’; and

(i) by the insertion after item 4 of the following item:

‘‘An offence referred to in section 1A of the Intimidation Act, 1982 (Act No. 72 of 1982), which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’.

Number and Year of Law - Act No. 105 of 1997 Shot title - Criminal Law Amendment Act, 1997 Extent of amendment - 1. The amendment of Part I of Schedule 2—

(a) by the substitution in item 1 for paragraph (b) of the following paragraph: ‘‘(b) the victim was— (i) a law enforcement officer performing his or her functions as such, whether on duty or not; [or] (ii) a person who has given or was likely to give material evidence with reference to any offence referred to in Schedule 1 to the Criminal Procedure Act, 1977 (Act No. 51 of 1977), at criminal proceedings in any court; or iii) a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018;’’; (b) by the substitution in paragraph (c) of item 1 for subparagraphs (i) and (ii) of the following subparagraphs: ‘‘(i) Rape or compelled rape as contemplated in section 3 or 4 of the Criminal

Law (Sexual Offences and Related Matters) Amendment Act, 2007, respectively, including rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018; or

(ii) robbery with aggravating circumstances as defined in section 1 of the Criminal Procedure Act, 1977 (Act 51 of 1977), or if the victim of the robbery was a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018;’’;

(c) by the substitution in paragraph (b) of item 2 for subparagraph (ii) of the following subparagraph:

‘‘(ii) is a physically disabled person who, due to his or her physical disability, is rendered particularly vulnerable; [or]’’;

(d) by the addition in paragraph (b) of item 2 of the following subparagraph: ‘‘(iv) is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018; or’’;

(e) by the deletion in paragraph (b) of item 3 of the word ‘‘or’’ at the end of

subparagraph (ii);

(f) by the addition in paragraph (b) of item 3 of the following subparagraph:

‘‘(iv) is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018; or’’; and

(g) by the addition of the following item:

‘‘An offence referred to in section 1A of the Intimidation Act, 1982 (Act No. 72 of 1982), which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’.

2. The amendment of Part II of Schedule 2— (a) by the substitution for item 2 of the following item: ‘‘Robbery— (a) when there are aggravating circumstances; [or] (b) involving the taking of a motor vehicle; or

(c) where the victim is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’; and

(b) by the addition of the following item:

‘‘Arson, housebreaking, whether under the common law or a statutory provision, with the intention to commit an offence or an offence referred to in section 1 of the Intimidation Act, 1982 (Act No. 72 of 1982), any of which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’.

Number and year of law - Act No. 75 of 2008 Short title - Child Justice Act, 2008 Extent of amendment - The amendment of Schedule 3— (a) by the substitution for item 3 of the following item:

‘‘3. Murder, including murder which constitutes part of a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’;

(b) by the substitution for items 6 and 7 of the following items, respectively: ‘‘6. Robbery— (a) where there are aggravating circumstances; [or] (b) involving the taking of a motor vehicle; or

(c) where the victim is a victim of a hate crime as defined in section 1 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.

7. Rape or compelled rape referred to in sections 3 and 4 of the Criminal Law (Sexual

Offences and Related Matters) Amendment Act, 2007 (Act No. 32 of 2007), respectively, including rape or compelled rape which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’; and

(c) by the addition of the following item:

‘‘23. Arson, housebreaking, whether under the common law or a statutory provision, with the intention to commit an offence or an offence referred to in section 1 or 1A of the Intimidation Act, 1982 (Act No. 72 of 1982), any of which constitutes a hate crime as contemplated in section 3 of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2018.’’.

13 MEMORANDUM ON THE OBJECTS OF THE PREVENTION AND

COMBATING OF HATE CRIMES AND HATE SPEECH BILL, 2018 1. BACKGROUND

1.1 The founding provisions of the Constitution of the Republic of South Africa, 1996, in section 1, set out certain basic values, amongst others, human dignity, the achievement of equality and the advancement of human rights and freedoms and non-racialism and non-sexism. The Bill of Rights, in section 9 of the Constitution, prohibits direct or indirect unfair discrimination against anyone on the grounds set out in section 9(3) of the Constitution, namely, race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth. The Bill of Rights, in section 10, gives everyone the right to dignity and, in section 12, gives everyone the right to freedom and security of the person, which includes the right to be free from all forms of violence from either public or private sources. In section 16, the Bill of Rights gives everyone the right to freedom of expression. This right is, however, limited in that it does not extend to propaganda for war, incitement to imminent violence or advocacy of hatred that is based on race, ethnicity, gender or religion, which constitutes incitement to cause harm. The State must, in terms of section 7(2) of the Constitution, ‘‘respect, protect, promote and fulfil the rights in the Bill of Rights’’.

1.2 It is against this backdrop that the Prevention and Combating of Hate Crimes and Hate Speech Bill (‘‘the Bill’’) has its origins. The Bill is intended to address frequently occurring and sometimes violent conduct of persons who are motivated by clear and defined prejudices.

2. OBJECTS OF BILL The primary aim of the Bill is to create the offences of hate crimes and hate speech and to put in place measures to prevent and combat these offences. 3. DISCUSSION AND CLAUSE-BY-CLAUSE ANALYSIS 3.1 Clause 1

Clause 1 of the Bill contains definitions which are self-explanatory. The definition of ‘‘court’’ excludes district courts from the application of the Act. Only the High Court and regional courts, where there are more experienced presiding officers, may deal with the adjudication of these offences. This clause also contains definitions which are necessary for purposes of clause 4(1)(b) when hate speech is distributed in cyberspace.

3.2 Clause 2

Clause 2 sets out the objects of the Bill. 3.3 Clause 3

3.3.1 Clause 3 creates the offence of hate crime. A hate crime is committed if a person commits any recognised offence under any law, commonly referred to as the ‘‘base

crime or offence and the commission of that offence is motivated by prejudice or intolerance on the basis of one or more characteristics or perceived characteristics of the victim, as listed in the Bill, a family member of the victim or the victim’s association with or support for a group of persons who share the said characteristics.

3.3.2 A prosecution in respect of this offence may only be instituted on the authorisation of the Director of Public Prosecutions having jurisdiction.

3.4 Clause 4

3.4.1 Clause 4 creates the offence of hate speech. Clause 4(1)(a) provides that any person who intentionally publishes, propagates or advocates anything or communicates to one or more persons in a manner that could reasonably construed to demonstrate a clear intention to be harmful or to incite harm or to promote or propagate hatred based on age, albinism, birth, colour, culture, disability, ethnic or social origin, gender or gender identity, HIV status, language, nationality or migrant or refugee status, race, religion, sex, which includes intersex or sexual orientation, is guilty of the offence of hate speech. Clause 4(1)(b) creates an offence when hate speech material is intentionally distributed or made available in cyber space, and the said person knows that such electronic communication constitutes hate speech. Clause 4(1)(c) provides that any person who intentionally displays any material or makes available any material, knowing that such material constitutes hate speech, which material is accessible by or directed at a specific person who can be considered to be a victim of hate speech, is guilty of an offence.

3.4.2 Clause 4(2) is critically important because it exempts certain communications from criminal sanction as contemplated in the Bill. The exemptions found in the provisions of clause 4(2)(a) to (c) of the Bill are nothing new but confirm the right of freedom of expression as enshrined in section 16(1) of the Constitution, which includes— (a) freedom of the press and other media; (b) freedom to receive or impart information or ideas; (c) freedom of artistic creativity; and (d) academic freedom and freedom of scientific research. 3.4.3 The provisions of clause 4(2)(a) to (c) of the Bill exclude from the ambit of hate speech anything done in good faith in the course of engagement in any bona fide artistic creativity, performance or other form of expression, academic or scientific inquiry or fair and accurate reporting or commentary in the public interest. Clause 4(2)(d) is a new exemption and excludes from the ambit of hate speech any bona fide interpretation and proselytising or espousing of any religious tenet, belief, teaching, doctrine or writings. However, artistic creativity or performance or espousal of religious doctrine will not qualify for the exemption from hate speech if it advocates hatred that constitutes incitement to cause harm based on any protected grounds. 3.4.4 A prosecution in respect of this offence may only be instituted on the authorisation of the Director of Public Prosecutions having jurisdiction.

3.5 Clause 5

Clause 5 deals with victim impact statements. Clause 5 sets out what a victim impact statement is, namely a sworn statement or affirmation by the victim which reflects the physical, psychological, social, economic or any other consequences of a hate crime on a victim. The contents of this statement will be admissible as evidence in court, unless good cause to the contrary is shown.

3.6 Clause 6 Clause 6 deals with penalties or orders. 3.6.1 Clause 6(1) provides for penalties in respect of hate crimes and provides that a person who is convicted of a hate crime is subject to the penalties set out in section 276 or 297 of the Criminal Procedure Act, 1977 (Act No. 51 of 1977), subject to the penal jurisdiction of that court (whether it be the High Court or the regional court). Section 276 15 of the Criminal Procedure Act, 1977, provides the sentencing options which courts may impose, including imprisonment, periodical imprisonment, a fine and correctional supervision. Section 297 of the Criminal Procedure Act, 1977, provides for the conditional or unconditional postponement or suspension of sentences, cautions and reprimands. 3.6.2 Clause 6(2) provides that if a person is convicted of a hate crime which is not subject to the obligatory minimum sentencing regime as provided for in section 51 of the Criminal Law Amendment Act, 1997 (Act No. 105 of 1997), and in the case of any damage, injury or loss of income or support, the court must regard the fact that the person has been convicted of a hate crime as an aggravating circumstance. 3.6.3 Clause 6(3) provides for penalties applicable in the case of hate speech, namely a fine or imprisonment for a period not exceeding three years in the case of a first conviction or a fine or imprisonment for a period not exceeding five years in the case of a subsequent conviction.

3.7 Clause 7

Clause 7 requires the National Director of Public Prosecutions, after consultation with the Director-General: Justice and Constitutional Development and the National Commissioner of the South African Police Service, to issue directives on relevant matters and these directives must be complied with by prosecutors in the execution of their functions under the Bill.

3.8 Clause 8

Clause 8 requires the Cabinet member responsible for the administration of justice, after consultation with the Cabinet member responsible for policing and the National Director of Public Prosecutions, to make regulations on the information to be collected and collated by the South African Police Service and the national prosecuting authority, respectively. The information obtained must be made available to Parliament, to the Chairperson of the South African Human Rights Commission, to the Chairperson of the Commission for Gender Equality and to the Chairperson of the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities.

3.9 Clause 9

Clause 9 provides for the prevention of hate crimes and hate speech and requires the State, the South African Human Rights Commission and the Commission for Gender Equality to promote awareness of the prohibition against these offences, with the view to preventing and combating them.

3.10 Clause 10

Clause 10 empowers the Cabinet member responsible for the administration of justice to make regulations as required by the Bill.

3.11 Clause 11

Clause 11, read with the Schedule to the Bill, sets out the consequential amendments to other Acts of Parliament, required by the Bill, namely amendments to the Criminal Procedure Act, 1977, the Criminal Law Amendment Act, 1997 (dealing with compulsory minimum sentences), and the Child Justice Act, 2008 (Act No. 75 of 2008). The amendments in the Schedule to the Bill only relate to hate crimes and not to hate speech.

3.12 Clause 12 Clause 12 contains the short title and commencement.

4. FINANCIAL IMPLICATIONS

The main financial implications for the State will be in the form of implementing the provisions of clause 7, dealing with directives, notably training in respect thereof and clause 9, dealing with the duty of the State to promote awareness of the prohibition against hate crimes and hate speech, aimed at the prevention of these offences. Existing budgets will be used for this purpose. No additional funding is being sought to implement the Bill.

5. PARTIES CONSULTED

A notice was published in the Gazette on 24 October 2016, inviting comments on the draft Bill. The request for comment on the Bill was also made available on the webpage of the Department of Justice and Constitutional Development. The deadline for comment was set as 1 December 2016, which was subsequently extended to 31 January 2017. Approximately 75 854 submissions, which included petitions, were received on the Bill. These comments were taken into consideration in the finalisation of the Bill.

6. PARLIAMENTARY PROCEDURE

6.1 The Constitution prescribes the procedure for the classification of Bills. A Bill must be correctly classified so that it does not become inconsistent with the Constitution.

6.2 The Bill has been considered against the provisions of the Constitution relating to the tagging of Bills and against the functional areas listed in Schedule 4 (functional areas of concurrent national and provincial legislative competence) and Schedule 5 (functional areas of exclusive provincial legislative competence) to the Constitution.

6.3 The established test for classification of a Bill is that any Bill whose provisions in substantial measure fall within a functional area listed in Schedule 4 to the Constitution must be classified in terms of that Schedule. The process is concerned with the question of how the Bill should be considered by the provinces and in the National Council of Provinces. Furthermore, how a Bill must be considered by the provincial legislatures depends on whether it affects the provinces. The more the Bill affects the interests, concerns and capacities of the provinces, the more say the provinces should have on the contents of the Bill.

6.4 Therefore the issue to be determined is whether the provisions of the Bill, in substantial measure, fall within a functional area listed in Schedule 4 to the Constitution.

6.5 The Bill primarily seeks to give effect to the Constitution and the Republic’s obligations regarding prejudice and intolerance in terms of international law and also seeks to prevent, combat and to regulate the offence of hate crime and the offence of hate speech and the prosecution of persons who commit these crimes and also provides for the appropriate sentences that may be imposed on persons who commit these offences. The Bill also provides for the prevention of hate crimes and hate speech, for the empowerment and support of victims of hate crimes and hate speech and also for effective enforcement measures. The Bill intends to ensure that

there is co-ordinated implementation, application and administration of the envisaged Prevention and Combating of Hate Crimes and Hate Speech Act along with the Criminal Procedure Act, 1977, the Criminal Law Amendment Act, 1997, and the Child Justice Act, 2008.

6.6 The provisions of the Bill have been carefully examined to establish whether, in

substantial measure, they fall within any of the functional areas listed in Schedule 4 to the Constitution.

6.7 The subject matter of the provisions of the Bill does not fall within any of the

functional areas listed in Schedule 4 to the Constitution and it does not affect provinces whereby the procedure set out in section 76 of the Constitution would be applicable.

6.8 Since the Bill does not deal with any of the matters listed in Schedule 4 of the

Constitution, it must be dealt with in accordance with the procedure set out in section 75 of the Constitution.

6.9 It is not necessary to refer this Bill to the National House of Traditional Leaders in

terms of section 18(1)(a) of the Traditional Leadership and Governance Framework Act, 2003 (Act No. 41 of 2003), since it does not contain provisions pertaining to customary law or customs of traditional communities.

ANTI-JUNGLE JUSTICE AND OTHER RELATED OFFENCES BILL, 2015 ARRANGEMENT OF SECTIONS

Section PART I - INTRODUCTORY Interpretation: Parties to the Offence: Application

1. Lynching

2. Mob Action

3. Riotous Assemblage

4. Summary Execution

5. Security Officer

6. Court of Competent Jurisdiction

7. Offence

8. Felony

9. Criminalization of death by Lynching, Mob Action or riotous

Assemblage

10. Criminalization of Extrajudicial Executions by Security Officers

11. Role and Obligation of the State to Protection of Lives

12. Liability of the State

13. Powers of the Attorney General of State

14. Offenders: Parties to Unlawful Killing by Lynching or Mob Action

PART- UNLAWFUL KILLING

Offences: Punishment

15. Punishment for Lynching through Mob Action

16. Criminal Liability of Security Officers in Lynching/ Mob Action Cases

17. Jurisdiction of Court/ Liability of the State

18. Balance of Proof

PART III- CRIMINAL LIABILITY

Compensation

19. Financial Compensation

20. Procedure Failure to Compensate

21. Joint and Several Liability of States

PART IV- EXTRAJUDICIAL KILLINGS

Offences: Punishment

22. Criminal Offence of Extrajudicial Killings

23. Punishment for Security Officers in Extrajudicial Killing

24. Criminal Liability of Senior Officers

25. Financial Compensation Against Summary Execution

26. Compulsory Autopsy

PART V- OTHER RELATED OFFENCES

Criminal Negligence

27. Denial of Access to Medical Treatment of Victims of Bullet Wounds

28. Liability of Security Officers to Victims of Bullet Wounds

29. Liability of Hospitals and Medical Personnel

30. Warrant of Liability

31. Petition to Attorney- General

32. Prosecution by Attorney- General

33. Citation

A BILL

FOR

AN ACT FOR THE PROHIBITION AND PROTECTION OF PERSONS FROM

LYNCHING, MOB ACTION AND EXTRAJUDICIAL EXECUTIONS AND OTHER

RELATED OFFENCES IN NIGERIA

Sponsored by Senator Dino Melaye

ENACTED by the National Assembly of the Federal Republic of Nigeria as

follows:

1. The word "lynching" when used in this Act, Shall mean an assemblage

composed of three or more persons acting in concert for the purpose of depriving any

person of his life without authority of law as a punishment for or to prevent the

commission of some actual or supposed public offense.

2. The phrase "mob action" when used in this Act, shall mean an assemblage

composed of three or more persons acting in concert for the purpose of causing severe

bodily harm capable of depriving any person of his life without authority of law as a

punishment for or to prevent the commission of some actual or supposed public offense.

3. The phrase "riotous assemblage" when used in this Act, shall mean an

assemblage composed of three or more persons acting in concert for the purpose of

disturbing the peace, destruction of private and public property and causing severe bodily

harm capable of depriving any person of his life without authority of law.

4. The phrase "extrajudicial execution" when used in this Act, shall mean any

physical act or act of omission, through torture or otherwise, carried out by a Security

officer of the Federal Republic of Nigeria for the purpose of depriving any person of his

life without authority of law.

5. The phrase "security officer" when used in this Act, shall mean any officer

of the Nigerian Police Force, Armed Forces of the Federal Republic of Nigeria,

Department of State Security Services, the Nigerian Civil Defence, and any other officer

of a Paramilitary Organization established under an Act of the National Assembly of the

Federal Republic of Nigeria.

6. The phrase "court of competent jurisdiction" when used in this Act, shall

mean a Magistrate or High Court within the Judicial Division where an offence of

lynching or unlawful killing by mob action or riotous assemblage or summary execution

occurs.

7. The word "offence" when used in this Act, shall mean an act or omission

which renders the person doing the act or making the omission liable to punishment under

Act.

8. The word "felony" when used in this Act shall mean any offence which is

declared by Law to be a felony, or is punishable, without proof of previous conviction,

with death or with imprisonment for three years or more.

9. That it shall be a criminal offence for any person to be deprived of his life

through lynching by a crowd, mob action or riotous assemblage.

10. That it shall be a criminal offence for any security officer of the Nigeria

Police Force, Armed Forces of the Federal Republic of Nigeria or any other paramilitary

organization to summarily execute, deprive any person of his life or engage in the

extrajudicial execution of any person within the Federal Republic of Nigeria without

authority of law.

11. That every State or Local government shall take seriously the protection of

lives of every person, citizen and non-citizen, present within the jurisdiction of that State

or Local Government and shall do all that is necessary within the powers of the State or

Local Government to prevent the loss of live of such persons, citizens or non-citizens as a

result of lynching, mob action, riotous assemblage or summary executions.

12. That if any State or Local Government thereof, fails neglects, or refuses to

provide and maintain protection to the life of any person within its Jurisdiction against a

mob or riotous assemblage, such State or Local Government shall by reason of such

failure, neglect, or refusal be deemed to have denied to such person the equal protection

of the Laws of the State, and to the end such protection as is guaranteed to the citizens of

the Federal Republic of Nigeria by its Constitution.

13.- (a) That the Attorney General of any State where an unlawful Killing by lynching

or mob action and or extrajudicial killing by security officers within the State has

occurred shall be empowered to commission criminal investigation and prosecution of

persons alleged to be parties to such unlawful killing or lynching.

(b) In the case of an unlawful killing by lynching or mob action or extrajudicial

killing by security officers within the Federal Capital Territory, Abuja, the Attorney

General of the Federation shall be empowered to commission criminal investigation and

prosecution of persons alleged to be parties to such unlawful killing or lynching.

14. That any person or persons who is or are identified as the primary agitator for a

lynching, mob action or riotous assemblage which results in the unlawful killing of a

person, citizen or non-citizen of the Federal Republic of Nigeria shall be held liable for a

felony of such unlawful Killing.

15. That any person or persons found guilty by a court of competent jurisdiction as the

primary agitator in the unlawful killing of a person, citizen or non-citizen through

lynching, mob action or riotous assemblage shall upon prosecution be punished by

imprisonment for life or not less than twenty-five years in prison.

16.- (a) That any security officer charged with the duty or who possesses the power or

authority as such officer to protect the life of any person that may be put to death or

lynched by any mob or riotous assemblage, but fails, neglects, or refuses to make all

reasonable efforts to prevent such person from being so lynched or lynched or put to

death, shall be guilty of a felony, and upon conviction thereof shall be punished by

imprisonment not exceeding five years or by a fine not exceeding N 500,00.00, or by both

such fine and imprisonment.

(b) That any security officer charged with the duty or who possesses the power or

authority as such officer to protect the life of any person in his charge as a prisoner, that

may be put to death or lynched by any mob or riotous assemblage, who fails, neglects, or

refuses to make all reasonable efforts to prevent such person or prisoner from being so

put to death, shall be guilty of a felony, and upon conviction thereof shall be punished by

imprisonment not exceeding five years or by a fine not exceeding N 500,00.00, or by

both such fine and imprisonment.

(c) Any security officer charged with the duty of apprehending or prosecuting any

person participating in such mob or riotous assemblage who fails, neglects, or refuses to

make all reasonable efforts to perform his duty in apprehending or prosecuting such

persons under the provisions of this Act and or under the provisions of the Criminal Laws

of the Federal Republic of Nigeria, shall be guilty of a felony, and upon conviction

thereof shall be punished by imprisonment not exceeding five years or by a fine not

exceeding N 500, 00.00, or by both such fine and imprisonment.

17.- (a) The Magistrate or High Court of the Judicial division wherein a person is put to

death by a mob or riotous assemblage shall have jurisdiction to try and punish those who

participate therein, in accordance with this Act or any other Act of the National Assembly

or Laws of the State where the unlawful killing is committed.

(b) Provided, that in the case of security officers charged in the indictment, that by

reason of the failure, neglect, or refusal of the security officer or officers charged with the

duty of protecting lives and prosecuting such offence under the provisions of this Act or

nay Act of the National Assembly or Laws of the State, to proceed with due diligence to

apprehend and prosecute such participants, the State is deemed to have denied to its

citizens the equal protection of the laws.

(c) The Magistrate or High Court of the judicial division wherein a Person is

summarily executed or put to death by a security officer acting alone or in collusion with

others shall have jurisdiction to try and punish those who participate therein, in

accordance with this Act any other Act of the National Assembly or Laws of the State

where the unlawful killing is Committed.

18. It shall not be necessary that the jurisdictional allegations Herein required shall be

proven beyond a reasonable doubt, and it shall be sufficient if such allegations are

sustained by a preponderance of evidence.

19.- (a) That any State in which a person is put to death by a mob or riotous

assemblage shall, if it is alleged and proven that the security officers in the State charged

with the duty of protecting lives and prosecuting criminally such offense under the

provisions of this Act or any Act of the National Assembly or Laws of the State, had

failed, neglected, or refused to proceed with due diligence to apprehend and prosecute the

participants in the mob or riotous assemblage, shall forfeit a compensation in the

minimum sum of N 500,00.00, which may be recovered by a civil action by the personal

representatives of the person put to death against any such State.

(b) Such action shall be brought and prosecuted against the State in the Supreme

Court of Nigeria.

20. Where such compensation is not paid upon recovery of a judgment thereof, such

court shall have jurisdiction to enforce payment thereof by levy of execution upon any

property of the State, or may compel the levy and collection of a tax, thereof, or may

otherwise compel payment thereof by mandamus or other appropriate process; and any

officer of such State or other person who disobeys or fails to comply with any lawful

order of the court shall be liable to punishment for contempt and to any other penalty

provided by Law thereof.

21. That in the event that any person so put to death shall have been transported by

such mob or riotous assemblage from one State to another State during the time

intervening between his capture and putting to death, the State in which he is seized and

the State in which he is put to death shall be jointly and severally liable to pay the

compensation herein provided.

22. That extrajudicial killing of any person, suspects or prisoners by security officers

shall be a felony;

(a) Any security officer acting as such officer under the authority of an Ant of the

National Assembly, having in his custody or control a suspect, who shall conspire,

combine, or confederate with any person to summarily execute or put such suspect to

death without authority of law as a punishment for some alleged public offense shall be

guilty of a felony.

(b) Any security officer having in his custody or control a suspect, who shall conspire,

combine, or confederate with any person to suffer such suspect to be taken or obtained

from his custody or control for the purpose of being summarily executed or put to death

without authority of law as a punishment for an alleged public offense, shall be guilty of a

capital offence, and those who so conspire, combine, or confederate with such officer

shall likewise be guilty of a felony.

23. That any security officer alleged to have carried out extrajudicial killing of a

suspect and who is found guilty of the allegation of extrajudicial killing, shall upon

conviction by a court of competent jurisdiction be sentenced to death.

24. That any senior security officer who is alleged to have failed or willingly refused

to exercise his authority to prevent the ill-treatment and extrajudicial killing of a suspect

of any crime shall upon investigation be guilty of a felony and upon conviction by a court

of competent jurisdiction, be dismissed from service and sentenced to imprisonment for

15 years.

25. That any security organization in which a person is summarily executed or put to

death by its officers, and if it is alleged and proven that the security officers are

responsible for the unlawful killing of such person, shall forfeit a compensation in the

minimum sum of N 10,000,000.00, which may be recovered by a civil action by the

personal representatives of the person so summarily killed or put to death.

(b) Such civil action shall be brought and prosecuted by the personal representatives

of the person summarily executed or put to death in any High Court of Nigeria Having

jurisdiction therein.

26.-(a) That any security organization in which a person is summarily executed or put to

death by its officers shall be responsible for the cost of autopsy of such death of persons in its

custody;

(b) A sealed copy of the official autopsy result shall be presented to the personal

representatives or family of the deceased person.

27.-(a) any person or persons who is in police detention or custody and suffers from bullet

wounds or any wound sustained during arrest shall be given immediate medical treatment in

the nearest general hospital within the vicinity of the police station or area where the injury

was sustained;

(b) Any security officer who denies access to immediate medical treatment to be given to a

person or persons suffering from bullet wounds or any wound sustained during arrest in

his/her custody shall be guilty of a felony.

28. Any security officer who is alleged to have denied access to immediate medical

treatment of a victim of bullet wounds or any wound sustained during arrest under Section

27 of this Act, resulting in the death of such victim or victims, upon conviction shall be

punished by imprisonment for life or not less than twenty-five years in prison.

29.- (a) It Shall be unlawful for any hospital or medical personnel to reject or refuse

medical treatment to any person or persons suffering from bullet wound.

(b) It shall be unlawful for any medical personnel to demand for a police

report from a victim or victims of bullet wound as a condition before treatment in any part

of the Federal Republic of Nigeria.

(c) any medical personnel who refuses, rejects or demands for a police report

as a condition before treatment of a victim of bullet wound shall be guilty of a felony and

where such victim dies as a result of any delay of medical attention due to such refusal,

rejection or demand for police report before treatment, the medical personnel involved

shall be guilty of criminal negligence and punished by imprisonment for life or not less

than twenty-five years in prison.

(d) Any hospital which refuses, rejects or demands for a police report as a condition

before treatment of a victim or victims of bullet wounds, upon investigation and

indictment in a report by the Nigerian Police Force and, or the Nigerian Medical

Association, shall be liable to a fine of N10, 000,000.00 to the victim and, or the personal

representatives of the victim where the victim dies from the bullet wounds.

30. Notwithstanding the provisions of section 29 (d), a report by either the Nigerian

Police Force or the Nigerian Medical Association shall suffice to warrant liability.

31. (a) That any victim of bullet wound who suffers discrimination or the Attorney

General of the State in writing, seeking criminal prosecution against such security officer,

hospital or medical personnel.

32. (a) Where any such petition is received by the Attorney-General of the state from

a victim of bullet wound, or from his/her personal representatives, the attorney-General

shall order criminal investigation into the matter;

(b) where a prima facie case is established under section 29 of this Act, the

Attorney-General of the State, or the Attorney-General of the Federation in the case of

occurrence in the Federal Capital Territory, shall commence criminal action against the

security officer, hospital or medical personnel.

33. This law may be cited as Anti-Jungle Justice and Other Related Offences Bill,

2015

CHAPTER- V ANTI-MOB LYNCHING LAW

IN OTHER STATES

CHAPTER- V

ANTI-MOB LYNCHING LAW

IN OTHER STATES

GOVERNMENT OF MANIPUR SECRETARIAT: LAW & LEGISLATIVE AFFAIRS DEPARTMENT --- NOTIFICATION Imphal, November 19, 2018 No. 2/79/2018-Leg/L: The following Ordinance promulgated by the Governor of Manipur on 08-11-2018 is hereby published in the Manipur Gazette for general information: THE MANIPUR PROTECTION FROM MOB VIOLENCE ORDINANCE, 2018 (Manipur Ordinance No. 3 of 2018)

Promulgated by the Governor of Manipur in the Sixty-ninth year of the Republic of India. An Ordinance

for the public to create a offence for lynching and providing adequate punishment for mob violence so as a special law in the field would instill a sense of fear against the people who involved themselves in such kind of actions and for rehabilitation of victims of lynching and their families and for matters connected therewith or incidental thereto. WHEREAS the Constitution of India guarantees to all persons the right to life and personal liberty and the Equal Protection of Laws;

AND WHEREAS in recent times, there have been a spate of incidents resulting in loss of livelihood, injuries and death of persons at the hands of lynch mobs; AND WHEREAS it is deemed necessary and expedient to enact legislation for the protection of these rights guaranteed by the Constitution in the light of the Supreme Court directions dated 17-07-2018 in W.P. (C) No. 754 of 2016 (Tahseen S. Poonawalia Vs. Union of India and Others); NOW THEREFORE, in exercise of the powers conferred by clause (1) of article 213 of the Constitution of India, the Governor of Manipur is pleased to promulgate the following Ordinance:- CHAPTER-I PRELIMINARY

1. Short title, extent and Commencement. (1) This Ordinance may be called the Manipur Protection from Mob Violence Ordinance, 2018.

(2) It extends to the whole of the State of Manipur. (3) It shall come into force at once.

2. Definitions. In this Ordinance, unless the context otherwise requires,- (a) “High Court” means High Court of Manipur; (b) “hostile environment” means intimidating or coercive environment

that is created against the victim or the family members of the victim or against any witnesses or any one providing assistance to the witness or victim, which includes being subjected to the following acts-

(i) boycott of the trade or businesses of such person or making it otherwise difficult for him or her to earn a living; or

(ii) public humiliation through exclusion from public services, including education, health and transportation or any act of indignity; or

(iii) deprive or threaten to deprive such person of his or her fundamental rights: or

(iv) force such person to leave his or her home or place of ordinary residence or livelihood without his or her express consent;

(v) extern such person/his or her family from the locality where he or she or family has normally been residing as permanent residents; or

(vi) any other act, whether or not it amounts to an offence under this Ordinance, that has the purpose or effect of creating an intimidating, hostile or offensive environment.

(c) “household” means the members of a family related to each other by blood, marriage or adoption and normally residing together and sharing meals or holding a common ration card;

(d) “lynching” means any act or series of acts of violence or aiding, abetting such act/acts thereof, 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 or any other related grounds or on mere suspicion of commission of a cognizable crime not amounting to a heinous one:

(e) “mob” means a group of two or more individuals, assembled with a common intention of lynching;

(f) “offensive material” means 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;

(g) “State Government” means State Government or Manipur; (h) “victim” means any person, who has suffered physical, mental,

psychological or monetary harm as a result of the commission of any offence under this Ordinance, and includes his or her relatives, legal guardian and legal heirs of a deceased victim;

(i) “witness” means any person who is acquainted with the facts and circumstances, or in possession of any information or has knowledge helpful and required for the purpose of investigation, inquiry or trial of any crime involving an offence under this Ordinance, and who is or may be required to give information or make a statement or produce any document during investigation, inquiry or trial of such case and includes a victim of such offence;

(j) Words and expressions used but not defined in this Ordinance and defined in the Code of Criminal Procedure, 1973 or the Indian Penal Code shall have the meanings assigned to them respectively in the Code of Criminal Procedure, 1973, or as the case may be, in the Indian Penal Code, 1860.

CHAPTER II DUTIES OF NODAL OFFICER AND POLICE OFFICER 3. Designation of Nodal Officer. (1) The State Government shall designate, a senior police officer, not below the rank of Superintendent of Police, as Nodal Officer in each district. (2) Such Nodal Officer shall be assisted by one of the Deputy Superintendent of Police rank officers in the district for taking measures to prevent incidents of mob violence and lynching. (3) They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news.

4. Duties of Nodal Officer. (1) The Nodal Officer so designated under section 3 of this Ordinance, shall hold regular meetings (at least once in a month) with the local intelligence units in the district along with all officers in-charge of Police Station of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. (2) The Nodal Officer shall-

(a) also make efforts to eradicate hostile environment against any community or caste which is targeted in such incidents. (b) bring to the notice of the Director General of Police any issue having inter district ramification of mob violence for devising a strategy to tackle the same at the State level. (c) monitor the investigation of such offences personally and shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be.

5. Duties of police officer. (1) Every police officer, directly in charge of maintaining law and order in an area shall take all reasonable steps to prevent any act of lynching including its incitement and commission; and to that end- (i) make all possible efforts to identify instances of dissemination of offensive material or any other means employed in order to incite or promote lynching of a particular person or group of persons; (ii) act in furtherance of the duty to prevent lynching in accordance with the powers vested in them; and (iii) make all possible efforts to prevent the creation of a hostile environment against a person or group of persons. (2) Every police officer shall take every possible action to the best of his or her ability, to prevent the commission of all offences under this Ordinance. CHAPTER III PREVENTION OF ACTS LEADING TO LYNCHING 6. Duty to prevent lynching. (1) It shall be duty of every police officer, in-charge of a police station to take all reasonable steps to prevent any incident or lynching, including its incitement, commission and possible spread in the area under his or her jurisdiction and to that end-

(i) Make all possible efforts to identify patterns of violence in the area under their jurisdiction, that has led to occurrence of targeted violence;

(ii) obtain information regarding the likelihood of an act of lynching; and (iii) act in furtherance of the duty to prevent any act of lynching in accordance

with the powers vested in them. (2) Every police officer exercising powers under this Ordinance in discharge of their duties shall act without any delay in a fair manner. 7. Power to exercise authority against mobs. (1) It shall be the duty of every police officer in-charge of a police station to exercise his authority on a mob in order to cause it to disperse within his jurisdiction. (2) In exercise of his authority, a police officer in-charge of a police station may use such powers as vested under Section 129 of the Code of Criminal Procedure, 1973. (3) The police shall cause to register FIR under section 153A of IPC and/ or other relevant provisions of law against person who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind. (4) It shall be the duty of the Officer in-charge of concerned Police Station, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment to the family member of the victim(s). CHAPTER IV OFFENCES AND PUNISHMENT UNDER THIS ORDINANCE 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.

9. Punishment for conspiracy or abetment or aides or attempt to lynch. Whoever takes part in a conspiracy or conspires to lynch another person, or abets or aides or attempts an act of lynching shall be punished in the same manner as if they had taken part in the actual incident of lynching. 10. Punishment for obstructing legal process. Any person who- (a) knows or have reasonable cause to believe that any other person is guilty of an offence under this Ordinance, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest for the said offence, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine. (b) threatens a witness with any injury to his person or property or to the person or property of any one in whom that person is interested, with intent to cause harm to that person, or to compel that person to refrain or withdraw from being a witness in any investigation or trial under this Ordinance shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine. CHAPTER V OTHER OFFENCES AND PUNISHMENT 11. Punishment for dissemination of offensive. Notwithstanding anything contained in any other law for the time being in force, whoever publishes, communicates or disseminates by any method, print or electronic, any offensive material, shall be punished with imprisonment imprisonment of either description for a term of not less than one year which may extend upto fifty thousand rupees. 12. Punishment for causing damage to any property movable and immovable. Notwithstanding anything contained in any other law for the time being in force, whoever causes damage to any property movable or immovable in the act of lynching, shall be punished with imprisonment of either description for a term of not less than one year which may extend upto three years, and with fine which may extend to twice the amount of damage or loss caused to the property, as may be determined by the Court. 13. Power of State Government to impose collective fine. (1) If, after an inquiry in the prescribed manner, the State Government is satisfied that the inhabitants of an area are concerned in, or abetting the commission of, any offence punishable under this Ordinance, or harbouring persons concerned in

the commission of such offence or failing to render all the assistance in their power to discover or apprehend the offender or offenders or suppressing material evidence of the commission of such offence, the State Government may, by notification in the Official Gazette, impose a collective fine on such households in the local area of place of occurrence of equal amount of fine from each household who are liable collectively to pay it. Provided that the fine imposed to a household shall not be realized until the petition, if any, filed by the household or representative under sub-section (3) is disposed of. (2) The notification made under sub-section (1) shall be proclaimed in the area by beat of drum or in such other manner as the State Government may think best in the circumstances to bring the imposition of the collective fine to the notice of the inhabitants of the said area. (3) (a) Any household aggrieved by the imposition of the collective fine under sub-section (1) or by the order of imposition, the household or representative may, within the prescribed period, file a petition before the State Government or such other authority as that Government may specify in this behalf for being exempted from such fine or modification of the same imposition. Provided that no fee shall be charged for filing such petition. (b) The State Government or the authority specified by it shall, after giving to the petitioner a reasonable opportunity of being heard, pass such order as it may think fit: Provided that the amount of the fine exempted or reduced under this section shall not be realizable from any household, and the total fine imposed on the households of an area under sub-section (1) shall be deemed to have been reduced to that extent. (4) Notwithstanding anything contained in sub-section (3), the State Government may exempt the victims of any offence punishable under this Ordinance or any person who does not, in its opinion, fall within the category of persons specified in sub-section (1), from the liability to pay the collective fine imposed under sub-section (1) of any portion thereof. (5) The portion of collective fine payable by household may be recovered in the manner provided by the Code of Criminal Procedure, 1973, for the recovery of fines imposed by a Court as if such portion were a fine imposed by a Court as if such portion were a fine imposed by a Magistrate. 14. Punishment for false information or failure to give information, etc. (1) Any person willfully and maliciously giving false information and so causing an arrest or a search to be made under this Ordinance shall on conviction be liable for imprisonment for a term which may extend to two years or with fine which may extend upto fifty thousand rupees or both.

(2) If any person,- (a) being legally bound to state the truth of any matter relating to an offence under this Ordinance, refuses to answer any question put to him by an authority in the exercise of its powers under this Ordinance; or (b) refuses to sign any statement made by him in the course of any proceedings under this Ordinance, which an authority may legally require to sigh; or (c) to whom a summon is issued under this Ordinance either to attend to give evidence at a certain place and time, omits to attend at the place or time, he shall pay, by way of penalty, a sum which shall not be less than five hundred rupees but which may extend upto ten thousand rupees for each such default or failure. (3) No order under this section shall be passed by an authority referred to in sub-section (2) unless the person on whom the penalty is proposed to be imposed is given an opportunity of being heard in the matter by such authority. (4) Notwithstanding anything contained in clause (c) of sub-section (2), a person who intentionally disobeys any direction issued under this Ordinance shall also be liable to be proceeded against under section 174 of the Indian Penal Code. 15. Dereliction of duty by Police Officer. (1) When any police officer, directly in charge of maintaining law and order in an area, omits to exercise lawful authority vested in them under law, without reasonable cause, and thereby fails to Officer. Explanation.- For the purposes of this section, dereliction of duty by a police officer shall also include the following:

(i) failure to provide protection to a victim of lynching; (ii) failure to act upon apprehended lynching;

(iii) refusing to record any information under sub-section(1) of section 154 of the Code of Criminal Procedure, 1973 relating to the Commission of an offence under this Ordinance; and

(iv) failure to perform his duties under sections 4,5 and 6 of this Ordinance.

16. Punishment for dereliction of duty by Police Officer. Notwithstanding anything contained in any other law being in force, whoever being a police officer is guilty of dereliction of duty shall be punished with imprisonment of one year, which may extend to three years, and with fine which may extend to fifty thousand rupees.

17. 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 for six months.

CHAPTER VI INVESTIGATION, PROSECUTION AND TRIAL 18. Application of Code of Criminal Procedure, 1973. The provisions of

the Code of Criminal Procedure, 1973 shall apply to this Ordinance, save and except as amended or supplemented to the extent provided under this Chapter.

19. Offences to be cognizable, non-bailable and non-compoundable . Unless otherwise specified, all offences specified under this Ordinance, shall be cognizable, non-bailable and non-compoundable.

20. Investigation by senior Police Officers. No police officer below the rank of sub-Inspector of Police shall investigate any offence committed under this Ordinance.

21. Sanction not required for offences under the Ordinance. The provisions of sections 196 and 197 of the Code of Criminal Procedure, 1973 shall not apply to offences committed under this Ordinance and the Court may take cognizance of such offence when satisfied that the said offence has been committed.

22. Cases Triable by Designated Judges. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, or in any other law for the time being in force, the offences specified under this Ordinance shall be tried by designated Judges appointed under this Ordinance.

23. Power to appoint Designated Judges. (1) The State Government by notification in the Official Gazette, appoint as many Designated Judges in consultation with the Chief Justice of the High Court of Manipur as it may be necessary to try offences punishable under this Ordinance.

(2) A person shall not be qualified for appointment as a Designated Judge under this Ordinance unless he or she is or has been a Sessions Judge under the Code of Criminal Procedure, 1973.

24. Procedure and power of the Designated Judge. (1) In trying the accused persons, the Designated Judge shall follow the procedure for the trial of warrant cases prescribed by the Code of Criminal Procedure, 1973.

(2) The provisions of the Code of Criminal Procedure, 1973, shall, so far as they are not inconsistent with this Ordinance apply to the proceedings before a Designated Judge; and for the purposes of the said provisions, the Court of the Designated Judge shall be deemed to be a Court of Session.

(3) When trying the accused person, a Designated Judge may also try any offence, other than an offence specified under this Ordinance, with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial if the offence is connected with the offence under this Ordinance.

(4) If, in the course of any trial under this Ordinance, it is found that the accused person has committed any other offence, the Designated Judge may, whether such offence is or is not an offence under this Ordinance, try such person of such offence and pass any sentence authorised by law for the punished thereof.

(5) Notwithstanding anything contained in the Code of CRiminal Procedure, 1973 a Designated Judge shall hold the trial of an offence on day-to-day basis, save and except for reasons beyond the control of parties:

Provided that where a Designated Judge is unable to hold the trial

of the offence on a day-to-day basis, the reasons for the same, shall be recorded in writing by the Designated Judge.

(6) In so far as reasonably possible, all statements of victims and witnesses should be recorded within a period of one hundred and eighty days from the date of incident.

(7) In so far as reasonably possible, it shall be the endeavour of the Court to ensure that any witness is not required to attend court on more than two dates of hearing.

25. Rights of victims and witnesses during trial. (1) A designated Judge may, on an application made by a witness in any proceedings before it or by the public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of the witness secret.

(2) A victim shall have the right to reasonable, accurate, and timely notice of any court proceeding and shall be entitled to be heard at any proceeding under this Ordinance in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submissions on conviction, acquittal or sentencing.

(3) The Superintendent of Police, or officer designated by him or her shall inform the victim in writing about the progress of investigations into the offence, whether or not the offender has been arrested, charge-sheeted, granted bail, charged, convicted or sentenced, and if a person has been charged with the offence, then the name of the suspected offender.

(4) The victim shall have the right to receive a copy of any statement of the witness recorded during investigation or inquiry, and a copy of all statements and documents filed under section 173 of the Code of Criminal Procedure, 1973 including the charge-sheet or closure report submitted by police.

(5) A victim shall be entitled to receive free legal aid if he or she so chooses and to engage any advocate who he or she chooses from among those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987 and the State Legal Aid Services Authority established under the said Act shall pay all costs, expenses and fees of the advocate appointed by the victim or informant in accordance with relevant rules.

(6) Notwithstanding anything contained in any other law being in force, the Designated Judge trying a case may permit the prosecution to be conducted by any advocate recommended by the victim:

Provided that no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to conduct the prosecution without the prior approval of the Designated Judge.

(7) Where the prosecution is conducted by an advocate recommended by the victim, the expenses arising out of such service, shall be borne by the State Government.

(8) It shall be the duty and responsibility of the State Government for making arrangements for the protection of victims and witnesses against any kind of intimidation, coercion or inducement or violence or threats of violence.

(9) The State Government shall inform the concerned Designated Judge about the protection provided to any victim, informant or witness and the Designated Judge shall periodically review the protection being offered under this section and pass appropriate orders.

(10) It shall be the duty of the Investigating Officer to record the complaint of victim, informant or witnesses against any kind of intimidation coercion or inducement or violence or threats of violence, whether given orally or in writing and copy of the same shall be sent to the Designated Judge within twenty-four hours of recording it.

26. Constitution of review committee. (1) Notwithstanding anything

contained in the Code of Criminal Procedure Act, 1973, every case, registered in connection with an offence under this Ordinance and where the Investigating Officer does not file a charge sheet within a period of three months from the date of registration of the First Information

Report, shall be reviewed by a committee headed by an officer of the level of an Inspector-General of Police to be constituted by the State Government and such committee may pass orders for a further investigation by another officer not below the rank of Deputy Superintendent of Police wherever it comes to the conclusion that, having regard to the nature of investigation already carried out, such investigation would be necessary.

(2) The Committee constituted under sub-section (1) may also review cases of such offences where the trial ends in acquittal and issue orders for filing appeal, wherever required.

(3) The committee shall submit a report of its findings and action taken in each case or cases to the Director General of Police.

CHAPTER VII RELIEF & REHABILITATION 27. Duty to provide compensation. (1) The State Government shall frame

a scheme namely, mob violence/lynching victim compensation scheme in the light of the provision of section 357A of the Code of Criminal Procedure Code, 1973 to be paid within thirty days of the incident. (2) Where the death of a person has occurred as a consequence of

lynching, the compensation for such death shall be paid to the next of kin of the deceased.

(3) While computing compensation, the State Government must give due regard to the bodily injury, psychological injury, material injury and loss of earnings including loss of opportunity of employment and education, expenses incurred on account of legal and medicinal assistance.

28. Displacement. (1) Where the offence under this Ordinance has led to

displacement of the victims from their residence, the State Government shall arrange for the accommodation of the victims and take all necessary steps to rehabilitate such victims.

(2) Where the offences under this Ordinance, has led to the displacement of more than fifty persons, the State Government shall setup relief camps in the manner specified under Section 29.

29. Establishment of relief Camps. (1) In accordance with sub-

section (2) of this section, the State Government shall establish relief camps in safe locations for all victims.

(2) Relief camps under sub-section (1) shall continue to be operated by the State Government until such persons return to their original habitations, or are resettled in a new suitable location.

(3) Relief camps established under sub-section (1) shall, at the minimum, regardless of the circumstances and without discrimination, provide such persons with:

(a) basic shelter which is appropriate and adequate to protect the

residents of the camps from extremes of the weather, and which provides due privacy especially to women and girls;

(b) twenty four hour security at the relief camp; (c) adequate nutritious and culturally appropriate food; (d) potable drinking water; (e) adequate clothing which is culturally appropriate and sufficient to

protect the residents of the camp from extremes of weather, (f) essential medical services including antenatal and postnatal care of

expectant mothers, pediatric care and emergency and rehabilitative services for the injured and referral services wherever necessary;

(g) adequate sanitation; (h) psycho-social and trauma counseling and psychiatric services; (i) child-care services for infants and small children; (j) educational facilities for children;

(k) special facilities and assistance, as may be necessary and reasonable for the medical condition and treatment of certain residents of the relief camps, as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of households, elderly and disabled persons with special needs;

CHAPTER VIII APPEALS 30. Appeals. Notwithstanding anything contained in the Code of Criminal

Procedure, 1973; (i) an appeal shall lie as a matter of right from any judgment, sentence

or order, not being interlocutory order, of a Designated Judge to the High Court both on facts and on law; and

(ii) Every appeal under this section shall be preferred within a period of sixty days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of sixty days.

CHAPTER IX MISCELLANEOUS 31. Power to remove difficulties. If any difficulty arises in giving effect to

the provisions of this Ordinance, the State Government, may by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Ordinance as appear to it to be necessary or expedient for removing the difficulty.

32. Act to be in addition to any other law. The provisions of this Ordinance shall be in addition to, and not in derogation of, any other law for the time being in force except to the extent the provisions of other laws are inconsistent with the provisions of this Ordinance.

33. Power to make rules. The State Government shall have the power to

make rules to give effect to the provisions of this Ordinance. Raj Bhavan, Imphal Sd/- The 8th November, 2018 (Najma A. Heptulla) --- (Nungshitombi Athokpam) Secretary (Law) to the Gove.of Manipur.

Protection from Lynching Bill, 2017 [29th December, 2017] PRIVATE MEMBER [Bill No. 44 of 2017]

……………………………………………………………………………..

AS INTRODUCED IN THE RAJYA SABHA BILL NO. XLIV OF 2017 PROTECTION FROM LYNCHING BILL, 2017 A BILL to provide for effective protection of the Constitutional rights of vulnerable persons, to punish acts of lynching, to provide for designated courts for the expeditious trial of such offences, for rehabilitation of victims of lynching and their families and for matters connected therewith or incidental thereto. WHEREAS the Constitution of India guarantees to all persons the right to life and personal liberty and the Equal Protection of Laws; AND WHEREAS in recent times, there have been a spate of incidents resulting in loss of livelihood, injuries and death of persons at the hands of lynch mods; AND WHEREAS it is deemed necessary and expedient to enact legislation for the protection of these rights guaranteed by the Constitution; BE it enacted by Parliament in the Sixty-eight Year of the Republic of India as follows:- CHAPTER I PRELIMINARY 1. Short Title, extent and commencement.- (1) This Act may be called the ‘Protection from Lynching Act, 2017.’ (2) It extends to the whole of India except the State of Jammu and Kashmir. (3) The Act shall come into force within thirty days of its enactment.

2. Definitions.- In this Act, unless the context otherwise requires;

(a) “appropriate Government” means in the case of a State, the Government of that State and in all other cases, the Central Government;

(b) “hostile environment” means intimidating or coercive environment that is created against the victim or the family members of the victim or against any witnesses or any one providing assistance to the witness or victim, which includes being subjected to the following act-

(i) boycott of the trade or businesses of such person or making it otherwise difficult for him or her to earn a living; or;

(ii) public humiliation through exclusion from public services, including education, health and transportation or any act of indignity; or

(iii) deprive or threaten to deprive such person of his or her fundamental right; or

(iv) force such person to leave his or her home or place of ordinary residence or livelihood without his or her express consent; or

(v) 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.

(c) “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 or any other related grounds.

(d) “mob” means a group of two or more individuals, assembled with an intention of lynching.

(e) “offensive material” means 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.

(f) “victim” means 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 or her relatives, legal guardian and legal heirs of a deceased victim.

(g) “witness” means any person who is acquainted with the facts and circumstances, or is in possession of any information or has knowledge necessary for the purpose of investigation, inquiry, or trial of any crime involving an offence under this Act, and who is or may be required to give information or make a statement or produce any document during investigation, inquiry or trial of such case and includes a victim of such offence.

(h) Words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974) or the Indian Penal Code shall have the meanings assigned to them respectively in the Code of Criminal Procedure, 1973, or as the case may be, in the Indian Penal Code, 1860 (45 of 1860).

CHAPTER II DUTIES OF POLICE OFFICER AND DISTRICT

MAGISTRATE 3. Duties of Police Officer.- (1) Every police officer, directly in charge of maintaining law and order in an area shall take all reasonable steps to prevent any act of lynching including its incitement and commission; and to that end-

(i) make all possible efforts to identify instances of dissemination of offensive material or any other means employed in order to incite or promote lynching of a particular person or group of persons;

(ii) act in furtherance of the duty to prevent lynching in accordance with the powers vested in them; and

(iii)make all possible efforts to prevent the creation of a hostile environment against a person or group of persons.

(2) Every police officer shall take every possible action to the best of their ability, to prevent the commission of all offences under this Act. 4. Duties of District Magistrate.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) whenever the District Magistrate has reason to believe that in any area within his jurisdiction, a situation has arisen where there is an apprehension of lynching, he may, by order in writing, prohibit any act which in his opinion is likely to lead to the incitement and commission of an act of lynching. (2) The District Magistrate shall take every possible action to the best of his or her ability to prevent the creation of a hostile environment against a person or group of persons. CHAPTER III

PREVENTION OF ACTS LEADING TO LYNCHING 5. Duty to prevent lynching.- (1) It shall be duty of every police officer, in charge of a police station to take all reasonable steps to prevent any incident of lynching, including its incitement, commission and possible spread in the area under their jurisdiction and to that end-

(i) make all possible efforts to identify patterns of violence in the area under their jurisdiction, that indicate occurrence of targeted violence;

(ii) obtain information regarding the likelihood of an act of lynching; and

(iii) act in furtherance of the duty to prevent any act of lynching in accordance with the powers vested in them;

(2) Every police officer exercising powers under this Act in discharge of their duties shall act without any delay in a fair, impartial and non-discriminatory manner. 6. Power to exercise authority against mobs.- (1) It shall be the duty of every police officer in-charge of a police station to exercise his authority on a mob in order to cause it to disperse. (2) In exercise of his authority, a police officer in-charge of a police station may use such powers as vested under Section 129 of the Code of Criminal Procedure, 1973 (2 of 1974). CHAPTER IV

PUNISHMENT FOR LYNCHING 7. Punishment for offence of lynching.- Whoever commits and 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 lone 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 conspiracy or abetment or aides or attempts to lynch.- Whoever takes part in a conspiracy or conspires to lynch another person, or abets or aides or attempts an act of lynching shall be punished in the same manner as if they had taken part in the actual incident of lynching. 9. Punishment for obstructing legal process.- Any person who-

(a) knows or have reasonable cause to believe that any other person is guilty of an offence under this Act, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial or punishment for the said offence, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine.

(b) threatens a witness with any injury to his person or property or to the person or property of any one in whom that person is interested, with intent to cause harm to that person, or to compel that person to refrain or withdraw from being a witness in any investigation or trial under this Act shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine.

CHAPTER V OTHER OFFENCES AND PUNISHMENT 10. Punishment for dissemination of offensive material.- Notwithstanding anything contained in any other law for the time being in force, 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 which may extend to three years, and with fine which may extend to fifty thousand rupees. 11. Dereliction of duty by Police Officer.- (1) When any Police Officer, directly in charge of maintaining law and order in an area, omits to exercise lawful authority vested in them under law, without reasonable cause, and thereby fails to prevent lynching, shall be guilty of dereliction of duty.

Explanation: - For the purposes of this section, dereliction of duty by a police officer shall also include the following:

(i) failure to provide protection to a victim of lynching : (ii) failure to act upon apprehended lynching:

(iii) refusing to record any information under sub-section (1) of section 154 of the code of criminal procedure , 1973 (2 of 1974) relating to the commission of an offence under this Act : and

(iv) failure to perform his duties under sections 3,4 and 5 of this Act.

12. Punishment for dereliction of duty by police officer.- Notwithstanding anything contained in any other law being in force, whoever being a police officer is guilty of dereliction of duty shall be punished with imprisonment of one year, which may extend to three years, and with fine which may extend to fifty thousand rupees.

13. Dereliction of duty by District Magistrate.- Whoever being District Magistrate authorized to act under any provisions of this act-

(a) exercised the lawful authority vested in him under this Act in a mala fide manner, which causes harm or injury to any person or property, or

(b) willfully omits to exercise lawful authority vested in him under this

Act and thereby fails to prevent the commission of any act of

lynching,

shall be guilty of dereliction of duty.

14. Punishment for dereliction of duty by District Magistrate.- Whoever being a District Magistrate is guilty of dereliction of duty shall be punished with imprisonment for a term of one year which may extend to three years, and with fine which may extend to fifty thousand rupees.

15. 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 for six months.

CHAPTER VI

INVESTIGATION, PROSECUTION AND TRIAL

16. Application of Code of Criminal Procedure, 1973.- The provisions of the Code of Criminal procedure , 1973 (7 of 1974), shall apply to this Act, save and except as amended or supplemented to the extent provided under this chapter.

17. Offences to be Cognizable, non–bailable and non-compoundable.- Unless otherwise specified, all offences specified under this Act, shall be cognizable, non-boilable and non–compoundable.

18. Investigation by senior police officer.- No police officer below the rank of inspector of police shall investigate any offence committed under this Act.

19. Sanction not required for offences under the Act- The provisions of sections 196 and 197 of the Code of Criminal Procedure, 1973 (2 of 1974 ) shall not apply to offences by police officers and the Court may take cognizance of such offence when satisfied that the said offence has been committed.

20. Cases triable by designated Judges.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified under this Act shall be tried by designated Judges appointed under this Act.

21. Power to appoint Designated Judges.- (1)The appropriate Government by notification in the Official Gazette, appoint as many Designated Judges in consultation with the Chief Justice of the High Court as it may be necessary to try offences punishable under this Act.

(2) A person shall not be qualified for appointment as a Designated Judge or Additional Designated Judge under this Act unless he or she is or has been a Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974).

22. Procedure and power of the Designated Judge.- (1) In trying the accused persons, the Designated Judge shall follow the procedure for the trial of warrant cases prescribed by the Code of Criminal Procedure, 1973 (2 of 1974)

(2) The provisions of the Code of Criminal Procedure, 1973, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Designated Judge; and for the purposes of the said provisions, the Court of the Designated Judge shall be deemed to be a Court of Session.

(3) When trying the accused person, a Designated Judge may also try any offence, other than an offence specified under this Act, with which the accused may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial if the offence is connected with the offence under this Act.

(4) If, in the course of any trial under this Act, it is found that the accused person has committed any other offence, the Designated Judge may, whether such offence is or is not an offence under this Act, try such person of such offence and pass any sentence authorized by law for the punishment thereof.

(5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) a Designated Judge shall hold the trial of an

offence on day-to-day basis save and except for reasons beyond the control of parties:

Provided that where a Designated Judge is unable to hold the trial of the offence on day-to-day basis, the reasons for the same, shall be recorded in writing by the Designated Judge.

(6) In so far as reasonably possible, all statements of victims and witnesses should be recorded within a period of one hundred and eighty days from the date of incident.

(7) In so far as reasonably possible, it shall be the endeavour of the Court to ensure that any witness is not required to attend court on more than two dates of hearing.

23. Rights of victims and witnesses during trial.- (1) A Designated Judge may, on an application made by a witness in any proceedings before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of the witness secret.

(2) A victim shall have the right to reasonable, accurate, and timely notice of any court proceeding and shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submissions on conviction, acquittal or sentencing.

(3) The Superintendent of Police, or officer designated by him or her shall inform the victim in writing about the progress of investigations into the offence, whether or not the offender has been arrested, charge-sheeted, granted bail, charged, convicted or sentenced, and if a person has been charged with the offence, then the name of the suspected offender.

(4) The victim shall have the right to receive a copy of any statement of the witness recorded during investigation or inquiry, and a copy of all statements and documents filed under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974) including the charge-sheet or closure report submitted by police.

(5) A victim shall be entitled to receive free legal aid if he or she so chooses and to engage any advocate who he or she chooses from among those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987 (39 of 1987) and the Legal Aid Services Authority established under the said

Act shall pay all costs, expenses and fees of the advocate appointed by the victim or informant in accordance with relevant rules.

(6) Notwithstanding anything contained in any other law being in force, the Designated Judge trying a case may permit the prosecution to be conducted by any advocate recommended by the victim:

Provided that no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to conduct the prosecution without the prior approval of the Designated Judge.

(7) Where the prosecution is conducted by an advocate recommended by the victim, the expenses arising out of such service, shall be borne by the appropriate Government.

(8) It shall be the duty and responsibility of the appropriate Government for making arrangements for the protection of victims and witnesses against any kind of intimidation, coercion or inducement of violence or threats of violence.

(9) The appropriate Government shall inform the concerned Designated Judge about the protection provided to any victim, informant or witness and the Designated Judge shall periodically review the protection being offered under this section and pass appropriate orders.

(10) It shall be the duty of the Investigating Officer to record the complaint of victim, informant or witnesses against any kind of intimidation coercion or inducement or violence or threats of violence, whether given orally or in writing and copy of the same shall be sent to the Designated Judge within twenty-four hours of recording it.

24. Constitution of review committee.- (1) Notwithstanding anything contained in the Code of Criminal Procedure Act, 1973 every case, registered in connection with an offence under this Act and where the Investigating Officer does not file a charge sheet within a period of three months from the date of registration of the First Information Report, shall be reviewed by a committee headed by an officer of the level of an Inspector-General of Police to be constituted by the appropriate Government and such committee may pass orders for a further investigation by another officer not below the rank of Deputy Superintendent of Police wherever it comes to the conclusion that, having regard to the nature of investigation already carried out, such investigation would be necessary.

(2) The committee constituted under sub-section (1) may also review cases of such offences where the trial ends in acquittal and issue orders for filing appeal, wherever required.

(3) The committee shall submit a report of its findings and action taken in each case or cases to the Director General of Police.

CHAPTER VII

RELIEF AND REHABILITATION

25. Duty to provide compensation.- (1) The appropriate Government through the office of the level of Chief Secretary shall provide Compensation to victims of lynching within thirty days of the incident.

(2) Where the death of a person has occurred as a consequence of lynching, the compensation for such death shall be paid to the next of kin of the deceased.

(3) While computing compensation, the appropriate Government must give due regard to the bodily injury, psychological injury, material injury and loss of earnings including loss of opportunity of employment and education, expenses incurred on account of legal and medicinal assistance:

Provided that in no case of death caused due to lynching, should the compensation given be less than twenty five lakh rupees.

26. Displacement.- (1) Where the offence under this Act has led to displacement of the victims from their residence, the appropriate Government shall arrange for the accommodation of the victims and take all necessary steps to rehabilitate such victims.

(2) Where the offences under this Act, has to lead to the displacement of more than fifty persons, the appropriate Government shall set up relief camps in the manner specified under Section 27.

27. Establishment of relief Camps.- (1) In accordance with sub-section 2 of section 27, the appropriate Government shall establish relief camps in safe locations for all victims.

(2) Relief camps under sub-section (1) shall continue to be operated by the appropriate Government until such persons return to their original habitations, or are resettled in a new suitable location.

(3) Relief camps established under sub-section (1) shall, at the minimum, regardless of the circumstances and without discrimination, provide such persons with:

(a) basic shelter which is appropriate and adequate to protect the residents of the camps from extremes of the weather, and which provides due privacy especially to women and girls;

(b) twenty four hour security at the relief camp;

(c) adequate nutritious and culturally appropriate food;

(d) potable drinking water;

(e) adequate clothing which is culturally appropriate and sufficient to protect the residents of the camp from extremes of weather;

(f) essential medical services including antenatal and postnatal care of expectant mothers, pediatric care and emergency and rehabilitative services for the injured and referral services wherever necessary;

(g) adequate sanitation;

(h) psycho-social and trauma counseling and psychiatric services;

(i) child-care services for infants and small children;

(j) educational facilities for children;

(k) special facilities and assistance, as may be necessary and reasonable for the medical condition and treatment of certain residents of the relief camps, as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of households, elderly and disabled persons with special needs;

CHAPTER VIII

APPEALS

28. Appeals.- Notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974);

(i) an appeal shall lie as a matter of right from any judgment, sentence or order, not being interlocutory order, of a Designated Judge to the High Court both on facts and on law; and

(ii) Every appeal under this section shall be preferred within a period of sixty days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of sixty days.

CHAPTER IX

MISCELLANEOUS

29. Power to remove difficulties.- If any difficulty arises in giving effect to the provisions of this Act, the Central Government, may by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty.

30. Act to be in addition to any other law.- The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force except to the extent the provisions of other laws are inconsistent with the provisions of this Act.

31. Power to make rules.- The Central Government shall have the power to make rules to give effect to the provisions of this Act.

STATEMENT OF OBJECTS AND REASONS

The idea of India, as envisaged by our founding fathers, is of one land embracing many, a nation that may endure differences of caste, creed, colour, conviction, culture, cuisine, costume and custom and continue to maintain its composition as a pluralistic democracy, the underlying seamless web that unites India as a sovereign, socialist, secular, democratic republic. Article 21 of the Constitution of India guarantees every person the right to life and personal liberty which includes the right to a dignified existence, in celebration of one's choices and social indentity.

The freedom of speech and expression under article 19 of the Constitution, which includes the freedom to express one's identity and choices without fear of repercussions, is the embodiment of the freedom that the makers of modern India dedicated their lives for. Every Indian has the right to a dignified existence irrespective of their religion, race, caste, sex, place of birth, language, dietary practices, sexual orientation, political affiliation, ethnicity.

The rising spate of vigilantism and mob lynching on the basis of one's individual identity and choices threatens the notion of an all-embracing India and is a direct threat to the Constitutional ethos of our country. This, therefore, necessitates the need for a special law to aid vulnerable individuals and communities.

The act of willful omissions and commissions by the custodians of the State, which facilitates mob lynching, must be recognized as a criminal act under the eyes of the law. The State must act as the bulwark of the freedoms enshrined in the Constitution of India, and special procedures are required to ensure an effective and independent prosecution of crimes, to deter the growing number of vigilante groups which act with impunity, in contempt of the secular fabric of India.

Therefore, there is an urgent requirement to re-enforce the founding values of our nation through special laws and procedure to curb mob lynching and related violence against an individual Indian citizen's identity.

Hence this Bill.

FINANCIAL MEMORANDUM

Clause 21 of this Bill provides for the appointment of Designated Judges to try offences under this Bill. Sub-clause 6 of Clause 23 of this Bill also mandates the appropriate governments to remunerate the expenses arising out of the prosecution in the manner set forth under such provision. Clause 25 to 27 of this Bill mandates various forms of compensatory, reliefs and rehabilitation

measures which need to be undertaken by the appropriate Governments. The maintenance of convicts and under trials, under this Bill, in the prisons of States and Union Territories will also require certain expenses. The expenditure relating to States shall be borne out of the Consolidated Funds of respective States. The expenditure relating to Union territories shall be incurred from the Consolidated Fund of India. The Bill, therefore, if enacted would involve expenditure from the Consolidated Fund of India. It is estimated that a recurring expenditure of about rupees two hundred crore per annum would be involved from the Consolidated Fund of India. A non-recurring expenditure of about rupees ten crore is also likely to be involved.

MEMODRADUM REGARDING DELEGATED LEGISLATION Clause 31 of the Bill empowers the Central Government to make rules for carrying out the purposes of this Bill. As the rules will relate to matters of detail only, the delegation of legislative power is of a normal character. *******

CHAPTER-VI EXTRACTS OF IMPORTANT JUDGMENTS OF

SUPREME COURT AND HIGH COURTS

CHAPTER-VI EXTRACTS OF IMPORTANT JUDGMENTS OF

SUPREME COURT AND HIGH COURTS

In Tehseen S. Poonawalla vs. Union of India and Others, Writ

Petition (C) No. 754 of 2016 and other connected matters decided on

17.07.2018, reported in (2018) 9 SCC 501, the Hon’ble Supreme Court has

held as under:-

“The controversy of the present nature deserves to be addressed with enormous sensitivity. The States have the onerous duty to ensure that no individual or any core group take law into their own hands. Every citizen has the right to intimate the police about the infraction of law. An accused booked for an offence is entitled to fair and speedy trial under the constitutional and statutory scheme and, thereafter, he may be convicted or acquitted as per the adjudication by the judiciary on the basis of the evidence brought on record and the application of legal principles. There cannot be an investigation, trial and punishment of any nature on the streets. The process of adjudication takes place within the hallowed precincts of the courts of justice and not on the streets. No one has the right to become the guardian of law claiming that he has to protect the law by any means. It is the duty of the States, to strive, incessantly and consistently, to promote fraternity amongst all citizens so that the dignity of every citizen is protected, nourished and promoted. That apart, it is the responsibility of the States to prevent untoward incidents and to prevent crime. 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. The primary goal of law is to have an orderly society where the citizenry dreams for change and progress is realized and the individual aspiration finds space for expression of his/her potential. In

such an atmosphere while every citizen is entitled to enjoy the rights and interest bestowed under the constitutional and statutory law, he is also obligated to remain obeisant to the command of law.

It is the responsibility of the State Administration in association with the intelligence agencies of both the State and the Centre to prevent recurrence of communal violence in any part of the State. If any officer responsible for maintaining law and order is found negligent, he/she should be brought within the ambit of law. The strengthening of police infrastructure in the district would undoubtedly help in curbing any recurrence of such communal violence. Besides, simultaneously peace-building measures were also required to be devised.

There can be no shadow of doubt that the authorities which are conferred with the responsibility to maintain law and order in the States have the principal obligation to see that vigilantism, be it cow vigilantism or any other vigilantism of any perception, does not take place. When any core group with some kind of idea take the law into their own hands, it ushers in anarchy, chaos, disorder and, eventually, there is an emergence of a violent society. Vigilantism cannot, by any stretch of imagination, be given room to take shape, for it is absolutely a perverse notion. Certain applications for intervention and written notes were filed supporting vigilantism on the basis that there is cattle smuggling and cruel treatment to animals. In this context, suffice it to say that it is the law enforcing agencies which have to survey, prevent and prosecute. No one has the authority to enter into the said field and harbour the feeling that he is the law and the punisher himself. A country where the rule of law prevails does not allow any such thought. It, in fact, commands for ostracisation of such thoughts with immediacy.

Lynching is an affront to the rule of law and to the exalted values of the Constitution itself which cannot be allowed to become the order of the day. Such vigilantism, be it for whatever purpose or borne out of whatever cause, has the effect of undermining the legal and formal institutions of the State and altering the constitutional order. These extra-judicial attempts under the guise of protection of the law have to be nipped in the bud; lest it would lead to rise of anarchy and lawlessness which would plague and corrode the nation like an epidemic.

Extra-judicial elements and non- State actors cannot be allowed to take the place of law or the law enforcing agency. A fabricated identity with bigoted approach sans acceptance of plurality and diversity results in provocative sentiments and display of reactionary retributive attitude transforming itself into dehumanisation of human beings. Such an atmosphere is one in which rational debate, logical discussion and sound administration of law eludes thereby manifesting clear danger to various freedoms including freedom of speech and expression. One man's freedom of thought, action, speech, expression, belief, conscience and personal choices is not being tolerated by the other and this is due to lack of objective rationalisation of acts and situations.

Freedom of speech and expression in different forms is the élan vital of sustenance of all other rights and is the very seed for germinating the growth of democratic views. Plurality of voices celebrates the constitutionalist idea of a liberal democracy and ought not to be suppressed. Pluralism and tolerance are essential virtues and constitute the building blocks of a truly free and democratic society. It must be emphatically stated that a dynamic contemporary constitutional democracy imbibes the essential feature of accommodating pluralism in thought and approach so as to preserve cohesiveness and unity. Intolerance arising out of a dogmatic mindset sows the seeds of upheaval and has a chilling effect on freedom of thought and expression. Hence, tolerance has to be fostered and practiced and not allowed to be diluted in any manner.

In a rights based approach to constitutional legitimacy, the right to life and liberty is considered paramount and, therefore, democratic governments must propel and drive towards stronger foothold for liberties so as to ensure sustenance of higher values of democracy thereby paving the path for a spontaneous constitutional order. Crime knows no religion and neither the perpetrator nor can the victim be viewed through the lens of race, caste, class or religion. The State has a positive obligation to protect the fundamental rights and freedoms of all individuals irrespective of race, caste, class or religion. The State has the primary responsibility to foster a secular, pluralistic and multi-culturalistic social order so as to allow free play of ideas and beliefs and co-existence of mutually contradictory perspectives. Stifling free voices can never bode well for a true democracy. It is essential to build societies which embrace diversity in all spheres and rebuild trust of the citizenry in the State machinery.

Lynching and mob violence are creeping threats that may gradually take the shape of a Typhon-like monster as evidenced in the wake of the rising wave of incidents of recurring patterns by frenzied mobs across the country instigated by intolerance and misinformed by circulation of fake news and false stories. There has been an unfortunate litany of spiralling mob violence and agonized horror presenting a grim and gruesome picture that compels reflection as to whether the populace of a great Republic like ours has lost the values of tolerance to sustain a diverse culture. Besides, bystander apathy, numbness of the mute spectators of the scene of the crime, inertia of the law-enforcing machinery to prevent such crimes and nip them in the bud and grandstanding of the incident by the perpetrators of the crimes including in the social media aggravates the entire problem. An attitude of morbid intolerance is absolutely intolerable and agonizingly painful.

"Unity" in the context of a nation means unity amongst the fellow citizens. It implies integration of the citizens whereby the citizens embrace a feeling of "We" with a sense of bonding with fellow citizens which would definitely go a long way in holding the Indian society together. The unique feature of “Unity in Diversity” inculcates in the citizens the virtue of respecting the opinions and choices of others. Such respect imbibes the feeling of acceptance of plurality and elevates the idea of tolerance by promoting social cohesion and infusing a sense of fraternity and comity. For a nation to survive, without being whittled down, it is a necessary precondition that all must embrace the sentiments that they are the essential constituents of diversity that galvanizes for preservation of unity and respects pluralistic perceptions in cohesion with the constitutional.

The law provides a procedure for arrest, investigation and consequential trial. As the investigating agency has to show fidelity to the statutory safeguards, similarly, every citizen is required to express loyalty to law and the legal procedure. No one is entitled to take law in his or her own hands and annihilate anything that the majesty of law protects. When the vigilantes involve themselves in lynching or any kind of brutality, they, in fact, put the requisite accountability of a citizen to law on the ventilator. That cannot be countenanced. Their only right is to inform the crime, if any, to the law enforcing-agency. It is imperative for them to remember that they are subservient to the law and cannot be guided by notions or emotions or sentiments or, for that matter, faith.

The menace of lynching, at one point of time, was very rampant in American society. The American Courts deplored this menace and dealt it with iron hands so as to eradicate the same.

The act of lynching is undoubtedly unlawful. It is the constitutional duty of courts to protect lives and human rights. There cannot be a right higher than the right to live with dignity and to be treated with humanness that the law provides. What the law provides may be taken away by lawful means; that is the fundamental concept of law and no one is entitled to shake that foundation. When the preventive measures face failure, the crime takes place and then there have to be remedial and punitive measures. Steps to be taken at every stage for implementation of law are extremely important. Hence, the guidelines are necessary to be prescribed.

Preventive Measures The State Governments shall designate, a senior police officer,

not below the rank of Superintendent of Police, as Nodal Officer in each district. Such Nodal Officer shall be assisted by one of the DSP rank officers in the district for taking measures to prevent incidents of mob violence and lynching. They shall constitute a special task force so as to procure intelligence reports about the people who are likely to commit such crimes or who are involved in spreading hate speeches, provocative statements and fake news. The State Governments shall forthwith identify Districts, Sub-Divisions and/or Villages where instances of lynching and mob violence have been reported in the recent past, say, in the last five years within a period of three weeks.

The Secretary, Home Department of the States concerned shall issue directives/advisories to the Nodal Officers of the districts concerned for ensuring that the Officer In-charge of the Police Stations of the identified areas are extra cautious if any instance of mob violence within their jurisdiction comes to their notice. The Nodal Officer, so designated, shall hold regular meetings (at least once a month) with the local intelligence units in the district along with all Station House Officers of the district so as to identify the existence of the tendencies of vigilantism, mob violence or lynching in the district and take steps to prohibit instances of dissemination of offensive material through different social media platforms or any other means for inciting such tendencies. The Nodal Officer shall also make efforts to eradicate

hostile environment against any community or caste which is targeted in such incidents. The Director General of Police/the Secretary, Home Department of the States concerned shall take regular review meetings (at least once a quarter) with all the Nodal Officers and State Police Intelligence heads. The Nodal Officers shall bring to the notice of the DGP any inter-district co-ordination issues for devising a strategy to tackle lynching and mob violence related issues at the State level.

It shall be the duty of every police officer to cause a mob to disperse, by exercising his power under Section 129 of Cr PC, which in his opinion has a tendency to cause violence or wreak the havoc of lynching in the disguise of vigilantism or otherwise. The Home Department of the Government of India must take initiative and work in co-ordination with the State Governments for sensitising the law enforcement agencies and by involving all the stake holders to identify the measures for prevention of mob violence and lynching against any caste or community and to implement the constitutional goal of social justice and the Rule of Law. The Director General of Police shall issue a circular to the Superintendents of Police with regard to police patrolling in the sensitive areas keeping in view the incidents of the past and the intelligence obtained by the office of the Director General. It singularly means that there should be seriousness in patrolling so that the anti-social elements involved in such crimes are discouraged and remain within the boundaries of law thus fearing to even think of taking the law into their own hands. The Central and the State Governments should broadcast on radio and television and other media platforms including the official websites of the Home Department and Police Department of the States that lynching and mob violence of any kind shall invite serious consequence under the law. It shall be the duty of the Central Government as well as the State Governments to take steps to curb and stop dissemination of irresponsible and explosive messages, videos and other material on various social media platforms which have a tendency to incite mob violence and lynching of any kind. The police shall cause to register FIR under Section 153A of IPC and/or other relevant provisions of law against persons who disseminate irresponsible and explosive messages and videos having content which is likely to incite mob violence and lynching of any kind. The Central Government shall also issue appropriate directions/advisories to the State Governments which would reflect the gravity and seriousness of the situation and the measures to be taken.

Remedial Measures Despite the preventive measures taken by the State Police, if it

comes to the notice of the local police that an incident of lynching or mob violence has taken place, the jurisdictional police station shall immediately cause to lodge an FIR, without any undue delay, under the relevant provisions of IPC and/or other provisions of law.

It shall be the duty of the Station House Officer, in whose police station such FIR is registered, to forthwith intimate the Nodal Officer in the district who shall, in turn, ensure that there is no further harassment of the family members of the victim(s).

Investigation in such offences shall be personally monitored by the Nodal Officer who shall be duty bound to ensure that the investigation is carried out effectively and the charge-sheet in such cases is filed within the statutory period from the date of registration of the FIR or arrest of the accused, as the case may be. The State Governments shall prepare a lynching/mob violence victim compensation scheme in the light of the provisions of Section 357A of Cr. PC within one month from the date of this judgment. In the said scheme for computation of compensation, the State Governments shall give due regard to the nature of bodily injury, psychological injury and loss of earnings including loss of opportunities of employment and education and expenses incurred on account of legal and medical expenses. The said compensation scheme must also have a provision for interim relief to be paid to the victim(s) or to the next of kin of the deceased within a period of thirty days of the incident of mob violence/lynching. The cases of lynching and mob violence shall be specifically tried by designated court/Fast Track Courts earmarked for that purpose in each district. Such courts shall hold trial of the case on a day to day basis. The trial shall preferably be concluded within six months from the date of taking cognizance. This direction shall apply to even pending cases. The District Judge shall assign those cases as far as possible to one jurisdictional court so as to ensure expeditious disposal thereof. It shall be the duty of the State Governments and the Nodal Officers in particular to see that the prosecuting agency strictly carries out its role in appropriate furtherance of the trial. To set a stern example in cases of mob violence and lynching, upon conviction of the accused person(s), the trial court must ordinarily award maximum sentence as provided for various offences under the provisions of the IPC. The

courts trying the cases of mob violence and lynching may, on application by a witness or by the public prosecutor in relation to such witness or on its own motion, take such measures, as it deems fit, for protection and for concealing the identity and address of the witness. The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall be given timely notice of any court proceedings and he/she shall be entitled to be heard at the trial in respect of applications such as bail, discharge, release and parole filed by the accused persons. They shall also have the right to file written submissions on conviction, acquittal or sentencing. The victim(s) or the next of kin of the deceased in cases of mob violence and lynching shall receive free legal aid if he or she so chooses and engage any advocate of his/her choice from amongst those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987.

Punitive Measures- Wherever it is found that a police officer or an officer of the

district administration has failed to comply with the aforesaid directions in order to prevent and/or investigate and/or facilitate expeditious trial of any crime of mob violence and lynching, the same shall be considered as an act of deliberate negligence and/or misconduct for which appropriate action must be taken against him/her and not limited to departmental action under the service rules. The departmental action shall be taken to its logical conclusion preferably within six months by the authority of the first instance. The States are directed to take disciplinary action against the officials concerned if it is found that (i) such official(s) did not prevent the incident, despite having prior knowledge of it, or (ii) where the incident has already occurred, such official(s) did not promptly apprehend and institute criminal proceedings against the culprits.

The directed measures should be carried out within four weeks by the Central and the State Governments, and compliance report also to be filed within that period. Further, the Parliament is recommended to create a separate offence for lynching and provide adequate punishment for the same which would instill a sense of fear of law amongst the people who involve themselves in such kinds of activities. There can be no trace of doubt that fear of law and veneration for the command of law constitute the foundation of a civilized society.”

In Kodungallur Film Society and another vs. Union of India and

others reported in (2018) 10 Supreme Court Cases 713, Writ Petition (C) No.

330 of 2018, decided on 01.10.2018, the Hon’ble Supreme Court has held as

under:

“The petitioners have filed the present writ petition on 25.01.2018, in the backdrop of mob violence, protests and demonstrations which erupted across the nation in the recent past, especially against cultural programmes and establishments and the ensuing damage to public and private properties arising out of such violence. Petitioner No. 1 is a registered film society and petitioner no. 2, is a member of the petitioner 1 film society. They have highlighted law and order problems arising out of the release of several films, especially the violence surrounding the release of the film “Padmaavat”, and submit that fundamentalist outfits and fringe groups have been issuing threats and engaging in acts of violence against people and property to disrupt and prevent public exhibitions of these films on the pretext that they offend their cultural/religious sentiments. These groups engage in violence against artistic expression, with utter impunity and show complete disregard for the rule of law and constitutional values. The films which are protested against are certified for public exhibition in accordance with law under the Cinematograph Act and by attempting to stop their exhibition, these groups operate as “super censors”, exercising unlawful authority and power outside the control and without the sanction of the State. These attacks on films are part of a larger problem whereby private individuals and groups impose unlawful restraints by threatening violence upon citizens‘ artistic freedoms and thereby impinge on the freedom of speech and expression under Article 19(1)(a) of the Constitution. The petitioners contend that the respondent state governments then themselves ban the exhibition of such films, citing law and order problems, without clamping down on the root cause of such problems namely the individuals and groups who incite and commit violence. It is also

contended that many such groups have tacit support from the political parties in power.

The principal relief is to issue directions to the States/Union of India to strictly implement the decision rendered by the Supreme Court in Destruction of Public and Private Properties, In re, (2009) 5 SCC 212 concerning the large-scale destruction of properties in the name of agitations, bandhs, hartals etc.The Court, after taking note of certain suggestions given by the Committees appointed by the Court inter alia recommended amendments to the Prevention of Damage to Public Property Act, 1984 (the PDPP Act’), Criminal Procedure Code, 1973 and other criminal law statutes; and also set out guidelines to assess damages to property in the absence of a statutory framework.

The present petition highlights the disconcerting rise in the protests and demonstrations by private entities targeting, amongst others, exhibition of films and social functions and including sections of people, on moral grounds, in particular, using threats and actual violence. In addition to being patently illegal and unlawful, such acts of violence highlight a deeper malaise, one of intolerance towards others’ views which then results in attempts to suppress alternate view points, artistic integrity and the freedom of speech and expression guaranteed by the Constitution of India. Indeed, the people who perpetrate such actions, especially against private parties, do so without fear of consequence and reprisal, probably believing that private parties do not have the wherewithal to hold them accountable for such actions. In such situations, the State must step in and perform its duty by taking measures to prevent such actions from occurring in the first place, ensuring that law-enforcement agencies exercise their power to bring the guilty parties to book and imposing time-bound and adequate punishment for any lapses.

One must not forget that administration of law can only be done by law-enforcing agencies recognised by law. Nobody has the right to become a self-appointed guardian of the law and forcibly administer his or her own interpretation of the law on others, especially not with violent means. Mob violence runs against the very core of our established legal principles since it signals chaos and lawlessness and the State has a duty to protect its citizens against the illegal and reprehensible acts of such groups.

The recommendations made and directions given in Destruction of Public and Private Properties, In re case, at para 3 are comprehensive to deal with the issue of large-scale destruction of private and public properties which unwinds during violent protests and demonstrations. As far as implementation of the said recommendations, is concerned, the Union is mindful of the dictum in In Re: Destruction of Public and Private Properties, In re case, and has advised the States to follow the same in its letter and spirit and also drafted a bill for initiating legislative changes in conformity with the recommendations of the Supreme Court, namely, The Prevention of Damage to Public Property (Amendment) Bill, 2015, which is currently being examined in consultation with the Ministry of Law and Justice.

For the time being, there is no need to comment on the efficacy of the proposed legislative changes including as to whether it would fully address the points noted in the guidelines/recommendations in Destruction of Public and Private Properties, in re case. That issue is kept open to be decided in appropriate proceedings if and when the occasion arises. It is hoped that the said Bill will be taken to its logical end in the right earnest.

At this stage, it would be apposite to also consider the judgment rendered by a three-Judge bench of the Supreme Court in Tehseen S. Poonawalla (2018) 9 SCC 501, where the Supreme Court had to deal with a specific type of mob violence and the resulting restraints on personal liberty and free speech. Taking note of burgeoning instances of vigilantism and lynching, the Supreme Court propounded that the States had the duty to ensure that individuals or groups did not take the law into their own hands to prevent untoward incidents and to prevent crime which may include damage caused to property. The recommendations comprehensively set out the manner in which the State and law-enforcement agencies are expected to deal with the menace of mob violence specifically lynching and vigilantism and further, assign responsibility and accountability to officials to curb such incidents as also punitive measures to deter law enforcement agencies from shirking their duties.

The Court is conscious of the fact that the crimes committed by groups of self-appointed keepers of public morality may be on account of different reasons or causes, but the underlying purpose of such

group of persons is to exercise unlawful power of authority and that too, without sanction of State and create fear in the minds of the public or, in a given situation, section of the community. The dispensation for preventing occurrences of such crimes or remedial measures and punitive measures would vest in the police in the State. Therefore, a comprehensive structure will have to be evolved in the respective States so that the issues of accountability and efficiency in curbing incidents of peaceful protests turning into mob violence, causing damage to property, including investigation, remedial and punitive measures, are duly addressed. While doing so, the directions given by the Supreme Court in Destruction of Public and Private Properties, in re case Shakti Vahini (2018) 7 SCC 192 and Tehseen Poonawalla case, must be borne in mind.

The petitioners have consequently prayed for the following reliefs:

"(a) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to strictly follow and implement the guidelines formulated by this Hon‘ble Court in Destruction of Public and Private Properties, with regard to measures to be taken to prevent destruction of public and private properties in mass protests and demonstrations, and also regarding the modalities of fixing liability and recovering compensation for damages caused to public and private properties during such demonstrations and protests, particularly mentioned in Paras 12 and 15 of SCC Report of the said judgment.

(b) Appoint Claims Commissioner in the manner stated in para 15 of the judgment in Destruction of Public and Private Properties to assess damages caused to public and private properties by protestors and also to fix liability not only on the perpetrators but also on the leaders of the groups/outfits/organizations which instigated agitations with their threats against film makers and exhibitors and through their call for destroying multiplexes, malls, cinema- halls, theaters etc. in order to prevent the exhibition of films;

(c) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing all the state governments to initiate forthwith action under the Penal Code 1860 and the Prevention of Destruction to Public Property Act 1984 against persons who commit, cause to commit and incite violence and acts of destruction

with the intention of preventing and disrupting the screening of films which are certified for public exhibition under the Cinematograph Act, 1952 as it is violative of Article 19 (1)(a) of the Constitution of India, in the interest of justice;

(d) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to recover the additional expenditure involved in providing security to film exhibition centers from those people who have raised threats against exhibiting certified films, in the interest of justice;

(e) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order directing the respondents to complete the investigation and trial in such offences in a time bound manner, in the interest of justice;

(f) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the bail applications, if any, moved by persons arrested for committing, causing, abetting or inciting acts of violence and destruction with the intention of preventing and disrupting the screening of films certified for public exhibition under the Cinematograph Act 1952 will be allowed only on condition that they deposit the sum equivalent to the loss quantified to have been caused by them, or furnish security for such quantified loss and also, in the interest of justice;

(g) Issue a writ or order or direction in the nature of Mandamus or any other appropriate Writ or order that the assets and properties of such arrested persons and also the leaders of protesting groups which incited or abetted violence and destruction, will remain under attachment for the loss quantified to have been caused until its realization, in the interest of justice;

(h) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to file status reports regarding the implementation of actions taken by them with respect to guidelines formulated by this Hon‘ble Court to strictly follow and implement the guidelines formulated by this Hon‘ble Court in Destruction of Public and Private Properties, particularly mentioned in Paras 12 and 15 of the SCC Report of the said judgment.

(i) Issue a writ in the nature of mandamus, or any other appropriate writ, direction or order directing the respondents to explore the options of invoking the provisions of Unlawful Activities (Prevention) Act 1967 against the outfits/groups/organizations which make brazen threats on film makers and artists, and indulge in systematic and organized acts of destruction and damage of property so as to achieve their unlawful ends by striking terror in society; and

(j) Please to issue any other writ or direction(s) or Order(s) as the Hon‘ble Court may deem fit and proper in view of the facts and circumstances of the case and in the interest of justice.

3. The principal relief is to issue directions to the States/Union of India to strictly implement the decision rendered by this Court in Destruction of Public and Private Properties, in re concerning the large-scale destruction of properties in the name of agitations, bandhs, hartals etc.”

In Mohd. Mohsin and another vs. District Judge, Meerut

and others reported in 2007 SCC Online All 692: (2007) 69 ALR 696

(All) C.M.W.P. No. 47058 of 2007 decided on 26.09.2007, it has been observed

as under:

“The intention of the defendants appears quite clear that they do not want to allow the suit to be decided. Probably, the tenants are waiting for the moment when patience of the landlady exhausts, she loses faith in the judicial system and contacts house mafias to get the house in dispute vacated. This is not an imaginary scenario, it is actually happening. Recently, Supreme Court has orally observed that in view of recent happenings of lynching of people in Bihar, the judiciary must do some introspection and adopt the measures of quick dispensation of justice.”

*********************************************************************

CHAPTER-VII

NEED FOR NEW LEGISLATION

CHAPTER-VII

NEED FOR NEW LEGISLATION Punishment for the wrongdoer is the duty of the State. By punishing the

culprit, ego of the victim as well as the society may be said to have been

satisfied. But in the matters of mob lynching, some more steps are required,

that is to say, constant vigilance by the agencies responsible for maintaining law

and order, responsibility to prevent the repetition of such incidents, measures to

be adopted by the law enforcement agencies against perpetrators of such

offences, rehabilitation of the victim and the families of the victims, security of

witnesses of such incidents and many more other things.

Although, our Constitution provides the fundamental right of life and

liberty, but it has to be secured at all costs by the States.

If we look into the existing provisions of law under Sections 141 to 149

IPC, the unlawful assembly has been prohibited. In most of the cases, under the

suspicion of theft, cow slaughter, child lifting, girl kidnapping, assault, gang

rape and in some matters of other kinds of theft, the victim is brutally beaten,

chained, stripped and hanged by the mob who takes the law into their own

hands. Beating a person and causing him injury, may cover under Sections 323

to 326 IPC, Section 304, 308 IPC as well as Section 307 IPC. In most of the

cases, if the victim survives, there is no much hue and cry and in such cases, the

victim shall be a competent witness but in the matters where the victim dies, the

provisions of Section 302 IPC could be attracted. But the important part is that

culprits of such beatings are rarely identified and furthermore, due to huge

pendency in the courts, trial of such persons consumes a considerable time.

As mentioned above, mere punishment to the wrongdoer is not sufficient

in the matters of mob lynching because such person receives injury and in some

cases dies due to such injuries, is prosecuted by the mob without affording him

opportunity of hearing. Such person is presumed to be guilty of the suspicious

offence and sentence is granted by the mob which is not permitted under any

law of the country. As has been noticed in various cases that the District

Administration as well as the Police Administration do not take sufficient steps

to prevent such incidents, may be due to engagement in other duties or may be

due to failure of local intelligence.

Hon’ble the Supreme Court in the matter of Tehseen S. Poonawalla vs.

Union of India and Others, (2018) 9 SCC 501, has directed the Central as well

as State Governments to adopt preventive, remedial as well as punitive

measures.

If we only depend upon the Indian Penal Code and the Code of Criminal

Procedure, the preventive measures cannot be said to be sufficient and it is

required that some Nodal Officer of the Police should be designated and he

should constitute a Special Task Force to procure Intelligence Report so that

proper preventive measures may be taken. It shall also be the duty of the Nodal

Officer to make efforts to protect hostile environment against any person of any

community or caste, which is likely to be targeted in such incident. It is also not

out of the area to mention that whenever any such incident takes place, apart

from the alleged Thekedar of the society, some anti-social elements also join

their hands to facilitate such lynching. Therefore, there is need to provide a

Special Machinery for combating such lynching by way of preventive measures.

As far as the remedial measures are concerned, normally it is the

complaint of the victim that his First Information Report is not lodged unless he

has some resourceful person. Therefore, the Nodal Officer should be made duty

bound to ensure that First Information Report is registered forthwith and the

investigation should also be carried out effectively and impartially.

Although, there are provisions under Section 357A Cr.P.C. to grant

compensation to the victim but normally the trend of the Court in Uttar Pradesh

is that the compensation is awarded out of the fine awarded to the accused and

invariably in every case, the accused files an appeal or revision and the

realization of fine is also stayed by the Court. Normally, it takes about ten years

to decide the criminal case finally. Therefore, in the matters of mob lynching,

one should not depend upon the event of realization of fine awarded by the trial

court and a special provision has to be made for grant of compensation like

Rape Case in the matters of Scheduled Castes and Scheduled Tribes.

There is also need to expedite the trial of such cases. Therefore, the cases

of mob lynching should be tried by the designated Judge on a priority basis, so

that a message is given to the society that the trial of mob lynching cannot be

delayed. As a normal practice, there is no provision for giving opportunity of

hearing to the victim or the family of the victim while awarding the sentence.

In such matters, arguments of the Public Prosecutor are heard and after taking

into consideration the statements of the accused, the punishment is awarded. In

the matters of mob lynching, the right of hearing on the quantum of sentence

should be provided to the victim or his family. One more aspect also requires

consideration of the Courts i.e. the damages caused to the property. In India,

the Law of Tort is not applicable unless there is some specific provision.

Therefore, this aspect should also be considered while making a new legislation.

As far as punitive measures are concerned, certainly strict punishment

must be awarded and for this it should be made a separate offence called “Mob

Lynching” so that there should be fear in the mind of miscreants that if they are

held responsible, they shall be subjected to harsh punishment.

Keeping in view the law of other countries as mentioned in Chapter IV of

this Report and the law in other States of India as well as the judgments of

Hon’ble the Supreme Court and the Hon’ble High Courts, the Commission has

prepared a Draft Bill to combat mob lynching.

In this Draft Bill, various definitions like “hostile environment”,

“lynching”, “mob”, “victim” and “witness” have been defined. In Chapter-II of

the Draft Bill, the duties of Police Officers and District Magistrates have been

defined and it has also been provided that if there is dereliction of duty by

police officer, he shall also be punished. In the same way, if the District

Magistrate also exercises lawful authority in a malafide manner, he shall also be

guilty for dereliction of duty.

Chapter III deals with prevention of acts dealing with lynching which

contains the duty to prevent lynching and power to exercise authority against

mob.

In Chapter IV, the punishment for lynching as well as for conspiracy or

abetment and for obstructing legal process has also been provided and in the

matters of simple hurt, punishment of seven years and a fine of Rs. 1,00,000/-,

for grievous hurt, punishment for ten years and a fine of Rs. 3,00,000/- and in

the matters of death, rigorous imprisonment for life and a fine of Rs. 5,00,000/-

is proposed. The punishment for suffering hurt as well as grievous hurt may

appear to be much harsh as compared to corresponding provisions of Indian

Penal Code contained in Sections 323 to 326 but considering the increasing

tendency of mob lynching, harsh punishment appears to be the need of the day.

Apart from the aforesaid punishments, the punishment for dissemination

of offensive material as well as punishment for enforcing a hostile environment

has also been provided.

Chapter VI deals with the investigation, prosecution and trial and it has

been provided that the offences shall be cognizable, non-bailable and non-

compoundable. It has also been provided that the cases shall be tried by the

designated Judge, who shall be appointed by the State Government in

consultation with the Hon’ble Chief Justice of the High Court. Although, it

has been provided that the provisions of Code of Criminal Procedure, 1973 shall

apply but a special procedure for expeditious trial has also been provided under

the proposed Draft.

As mentioned earlier, the rights of victim and witness during trial have

also been specified and it has been provided that it shall be the duty of

designated officer to inform the victim in writing about the progress of

investigation as well as progress in the trial and the victim shall also have the

right to receive copy of any statement of the witness as well as he shall also be

entitled to receive free legal aid and can engage an advocate of his choice and

the expenses and fees of the advocate appointed by the victim or informant shall

be paid by the Government.

In the last, it has also been provided that where any case has been

registered under this Act, and the Investigating Officer does not file charge-

sheet/ closure report within a period of three months from the date of

registration of the First Information Report, the committee headed by an officer

to the level of Inspector General of Police shall be constituted by the State

Government along with other participants and such committee shall review

cases of such offences.

The most important part of this proposed legislation is relief and

rehabilitation as provided in Chapter VII of the Draft Bill. It contains the

provision to provide compensation to victim of lynching within 30 days of the

incident and in computing the compensation to give due regard to the bodily

injury, psychological injury, material injury and loss of earnings, including loss

of opportunity of employment and education shall also be considered and if the

offence under this Act has led the displacement of victims from their residence,

the State Government shall arrange for the accommodation of victim as well as

it has also been provided that the State Government shall also establish relief

camps whenever considered necessary.

Sub-clause 3 of Section 27 of the proposed Draft provides minimum

facilities in such relief camps which also includes adequate security, nutritious

food, drinking water, essential medical services, adequate sanitation and child

care services for infant as well as educational facilities for children. In Chapter

VIII, the Provisions for Appeal have been provided with a limitation of sixty

days.

Although, Private Member (Sri K.T.S.Tulsi, Senior Advocate and

Member of Rajya Sabha) had introduced Bill No. 44 of 2017 “PROTECTION

FROM LYNCHING BILL, 2017” in the Rajya Sabha on 29th December, 2017

but the said Bill has not yet been passed. Under the Seventh Schedule of the

Constitution, the State Government is competent to make law on the point of

mob lynching. Therefore, it is proposed that the State Government should take

immediate steps to legislate law to combat mob lynching.

In the aforesaid circumstances, in the opinion of the Commission, there is

need to legislate a new legislation to combat mob lynching.

******

CHAPTER-VIII DRAFT BILL

CHAPTER-VIII

DRAFT BILL UTTAR PRADESH COMBATING OF

MOB LYNCHING BILL, 2019

A

BILL to provide for combating of Mob Lynching, effective protection of the Constitutional rights of vulnerable persons, to punish acts of Mob lynching, to provide for designated courts for the expeditious trial of such offences, for rehabilitation of victims of mob lynching and their families and for matters connected therewith or incidental thereto. Be it enacted in the Seventieth year of Republic of India

CHAPTER I

PRELIMINARY

1. Short Title and commencement.- (1) This Act may be called the UTTAR PRADESH COMBATING OF MOB LYNCHING ACT, 2019

(2) The Act shall come into force from the date of its publication in the Official Gazette. 2. Definitions.- In this Act, unless the context otherwise requires;

(a) “hostile environment” means intimidating or coercive environment that is created against the victim or the family members of the victim or against any witnesses or any one providing assistance to the witness or victim, which includes being subjected to the following act-

(i) boycott of the trade or businesses of such person or making it otherwise difficult for him to earn a living; or;

(ii) extern such person or his family from the locality where he or his family has normally been residing as permanent resident,; or

(iii) public humiliation through exclusion from public services, including education, health and transportation or any act of indignity; or

(iv) deprive or threaten to deprive such person of his fundamental right; or

(v) force such person to leave his home or place of ordinary residence or livelihood without his express consent; or

(vi) 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.

(b) “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, or on mere suspicion of commission of a cognizable offense not amounting to a heinous crime or any other related grounds.

(c) “mob” means a group of two or more individuals, assembled with common intention of lynching.

(d) “offensive material” means 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.

(e) “victim” means 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 of a deceased victim.

(f) “witness” means any person who is acquainted with the facts and circumstances, or is in possession of any information or has knowledge necessary for the purpose of investigation, inquiry, or trial of any crime involving an offence under this Act, and who is or may be required to give information or make a statement or produce any document during investigation, inquiry or trial of such case and includes a victim of such offence.

(g) Words and expressions used but not defined in this Act and defined in the Code of Criminal Procedure, 1973 (2 of 1974) or the Indian Penal Code shall have the meanings assigned to them respectively in the Code of Criminal Procedure, 1973, or as the case may be, in the Indian Penal Code, 1860 (45 of 1860).

CHAPTER II

DUTIES OF POLICE OFFICER AND DISTRICT MAGISTRATE

3. Duties of Police Officer.- (1) Every police officer, directly in charge of maintaining law and order in an area shall take all reasonable steps to prevent any act of lynching including its incitement and commission; and to that end-

(i) make all possible efforts to identify instances of dissemination of offensive material or any other means employed in order to incite or promote lynching of a particular person or group of persons;

(ii) act in furtherance of the duty to prevent lynching in accordance with the powers vested in them; and

(iii)make all possible efforts to prevent and eradicate the creation of a hostile environment against a person or group of persons Which is targeted in such incidents.

(2) Every police officer shall take every possible action to the best of their ability, to prevent the commission of all offences under this Act. 4. Duties of District Magistrate.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) whenever the District Magistrate has reason to believe that in any area within his jurisdiction, a situation has arisen where there is an apprehension of lynching, he may, by order in writing, prohibit any act which in his opinion is likely to lead to the incitement and commission of an act of lynching. (2) The District Magistrate shall take every possible action to the best of his or her ability to prevent the creation of a hostile environment against a person or group of persons which is targeted in such incidents.

CHAPTER III

PREVENTION OF ACTS LEADING TO LYNCHING 5. Duty to prevent lynching.- (1) It shall be duty of every police officer, in charge of a police station to take all reasonable steps to prevent any incident of lynching, including its incitement, commission and possible spread in the area under their jurisdiction and to that end-

(i) make all possible efforts to identify patterns of violence in the area under their jurisdiction, that indicate occurrence of targeted violence;

(ii) obtain information regarding the likelihood of an act of lynching; and

(iii) act in furtherance of the duty to prevent any act of lynching in accordance with the powers vested in them;

(2) Every police officer exercising powers under this Act in discharge of their duties shall act without any delay in a fair, impartial and non-discriminatory manner.

6. Power to exercise authority against mobs.- (1) It shall be the duty of every police officer in-charge of a police station to exercise his authority on a mob in order to cause it to disperse. (2) In exercise of his authority, a police officer in-charge of a police station may use such powers as vested under Section 129 of the Code of Criminal Procedure, 1973 (2 of 1974). (3) The Police officer shall cause to register the First Information Report under relevant provisions of law 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.

CHAPTER IV

PUNISHMENT FOR LYNCHING

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 conspiracy or abetment or aides or attempts to lynch.- Whoever takes part in a conspiracy or conspires to lynch another person, or abets or aides or attempts an act of lynching shall be punished in the same manner as if they had taken part in the actual incident of lynching. 9. Punishment for obstructing legal process.- Any person who-

(a) knows or have reasonable cause to believe that any other person is guilty of an offence under this Act, gives that other person any assistance with intent thereby to prevent, hinder or otherwise interfere with his arrest, trial or punishment for the said offence, shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine.

(b) threatens a witness with any injury to his person or property or to the person or property of any one in whom that person is interested, with intent to cause harm to that person, or to compel that person to refrain or withdraw from being a witness in any investigation or

trial under this Act shall be punished with imprisonment for a term which may extend to five years and shall also be liable to fine.

CHAPTER V

OTHER OFFENCES AND PUNISHMENT 10. Punishment for dissemination of offensive material.- Notwithstanding anything contained in any other law for the time being in force, 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 which may extend to three years, and with fine which may extend to fifty thousand rupees. 11. Dereliction of duty by Police Officer.- (1) When any Police Officer, directly in charge of maintaining law and order in an area, omits to exercise lawful authority vested in them under law, without reasonable cause, and thereby fails to prevent lynching, shall be guilty of dereliction of duty. Explanation: - For the purposes of this section, dereliction of duty by a police officer shall also include the following:

(v) failure to provide protection to a victim of lynching : (vi) failure to act upon apprehended lynching: (vii) refusing to record any information under sub-section (1) of section

154 of the code of criminal procedure , 1973 (2 of 1974) relating to the commission of an offence under this Act : and

(viii) failure to perform his duties under sections 3,4 and 5 of this Act. 12. Punishment for dereliction of duty by police officer.- Notwithstanding anything contained in any other law being in force, whoever being a police officer is guilty of dereliction of duty shall be punished with imprisonment of one year, which may extend to three years, and with fine which may extend to fifty thousand rupees. 13. Dereliction of duty by District Magistrate.- Whoever being District Magistrate authorized to act under any provisions of this Act-

(a) exercises the lawful authority vested in him under this Act in a mala fide manner, which causes harm or injury to any person or property, or

(b) willfully omits to exercise lawful authority vested in him under this Act and thereby fails to prevent the commission of any act of lynching,

shall be guilty of dereliction of duty. 14. Punishment for dereliction of duty by District Magistrate.- Whoever being a District Magistrate is guilty of dereliction of duty shall be punished with

imprisonment for a term of one year which may extend to three years, and with fine which may extend to fifty thousand rupees. 15. 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 for six months.

CHAPTER VI

INVESTIGATION, PROSECUTION AND TRIAL

16. Application of Code of Criminal Procedure, 1973.- The provisions of the Code of Criminal procedure , 1973 (7 of 1974), shall apply to this Act, save and except as amended or supplemented to the extent provided under this chapter. 17. Offences to be Cognizable, non–bailable and non-compoundable.- Unless otherwise specified, all offences specified under this Act, shall be cognizable, non-bailable and non–compoundable. 18. Investigation by senior police officer.- No police officer below the rank of inspector of police shall investigate any offence committed under this Act. 19. Sanction not required for offences under the Act- The provisions of sections 196 and 197 of the Code of Criminal Procedure, 1973 (2 of 1974 ) shall not apply to offences by police officers and the Court may take cognizance of such offence when satisfied that the said offence has been committed. 20. Cases triable by designated Judges.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law for the time being in force, the offences specified under this Act shall be tried by designated Judges appointed under this Act. 21. Power to appoint Designated Judges.- (1)The State Government by notification in the Official Gazette, appoint as many Designated Judges in consultation with the Chief Justice of the High Court as it may be necessary to try offences punishable under this Act. (2) A person shall not be qualified for appointment as a Designated Judge or Additional Designated Judge under this Act unless he is or has been a Sessions Judge under the Code of Criminal Procedure, 1973 (2 of 1974). 22. Procedure and power of the Designated Judge.- (1) In trying the accused persons, the Designated Judge shall follow the procedure for the trial of warrant cases prescribed by the Code of Criminal Procedure, 1973 (2 of 1974) (2) The provisions of the Code of Criminal Procedure, 1973, shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Designated Judge; and for the purposes of the said provisions, the Court of the Designated Judge shall be deemed to be a Court of Session. (3) When trying the accused person, a Designated Judge may also try any offence, other than an offence specified under this Act, with which the accused

may, under the Code of Criminal Procedure, 1973 (2 of 1974), be charged at the same trial if the offence is connected with the offence under this Act. (4) If, in the course of any trial under this Act, it is found that the accused person has committed any other offence, the Designated Judge may, whether such offence is or is not an offence under this Act, try such person of such offence and pass any sentence authorized by law for the punishment thereof. (5) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) a Designated Judge shall hold the trial of an offence on day-to-day basis save and except for reasons beyond the control of parties: Provided that where a Designated Judge is unable to hold the trial of the offence on day-to-day basis, the reasons for the same, shall be recorded in writing by the Designated Judge. (6) In so far as reasonably possible, all statements of victims and witnesses should be recorded within a period of one hundred and eighty days from the date of framing the charge. (7) In so far as reasonably possible, it shall be the endeavor of the Court to ensure that any witness is not required to attend court on more than two dates of hearing. 23. Rights of victims and witnesses during trial.- (1) A Designated Judge may, on an application made by a witness in any proceedings before it or by the Public Prosecutor in relation to such witness or on its own motion, take such measures as it deems fit for keeping the identity and address of the witness secret. (2) A victim shall have the right to reasonable, accurate, and timely notice of any court proceeding and shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submissions on conviction, acquittal or sentencing. (3) The Superintendent of Police, or officer designated by him or her shall inform the victim in writing about the progress of investigations into the offence, whether or not the offender has been arrested, charge-sheeted, granted bail, charged, convicted or sentenced, and if a person has been charged with the offence, then the name of the suspected offender. (4) The victim shall have the right to receive a copy of any statement of the witness recorded during investigation or inquiry, and a copy of all statements and documents filed under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974) including the charge-sheet or closure report submitted by police. (5) A victim shall be entitled to receive free legal aid if he so chooses and to engage any advocate who he or she chooses from among those enrolled in the legal aid panel under the Legal Services Authorities Act, 1987 (39 of 1987) and the Legal Aid Services Authority established under the said Act shall pay all costs, expenses and fees of the advocate appointed by the victim or informant in accordance with relevant rules. (6) Notwithstanding anything contained in any other law being in force, the Designated Judge trying a case may permit the prosecution to be conducted by any advocate recommended by the victim:

Provided that no person, other than the Advocate-General or Government Advocate or a Public Prosecutor or Assistant Public Prosecutor, shall be entitled to conduct the prosecution without the prior approval of the Designated Judge. (7) Where the prosecution is conducted by an advocate recommended by the victim, the expenses arising out of such service, shall be borne by the State Government. (8) It shall be the duty and responsibility of the State Government for making arrangements for the protection of victims and witnesses against any kind of intimidation, coercion or inducement of violence or threats of violence. (9) The State Government shall inform the concerned Designated Judge about the protection provided to any victim, informant or witness and the Designated Judge shall periodically review the protection being offered under this section and pass appropriate orders. (10) It shall be the duty of the Police Officer to receive and record the complaint of victim, informant or witnesses against any kind of intimidation coercion or inducement or violence or threats of violence, whether given orally or in writing and copy of the same shall be sent to the Designated Judge within twenty-four hours of recording it. 24. Constitution of review committee.- (1) Notwithstanding anything contained in the Code of Criminal Procedure Act, 1973 every case, registered in connection with an offence under this Act and where the Investigating Officer does not file a charge sheet within a period of three months from the date of registration of the First Information Report, shall be reviewed by a committee headed by an officer of the level of an Inspector-General of Police to be constituted by the State Government and such committee may pass orders for a further investigation by another officer not below the rank of Deputy Superintendent of Police wherever it comes to the conclusion that, having regard to the nature of investigation already carried out, such investigation would be necessary. (2) The committee constituted under sub-section (1) may also review cases of such offences where the trial ends in acquittal and recommend for filing appeal, wherever required. (3) The committee shall submit a report of its findings and action taken in each case or cases to the Director General of Police.

CHAPTER VII

RELIEF AND REHABILITATION

25. Duty to provide compensation.- (1) The State Government through the office of the level of Chief Secretary shall provide Compensation to victims of lynching within thirty days of the incident. (2) Where the death of a person has occurred as a consequence of lynching, the compensation for such death shall be paid to the next of kin of the deceased.

(3) While computing compensation, the State Government shall give due regard to the bodily injury, psychological injury, material injury and loss of earnings including loss of opportunity of employment and education, expenses incurred on account of legal and medicinal assistance: Provided that in no case of death caused due to lynching, should the compensation given be less than twenty five lakh rupees.

26. Displacement.- (1) Where the offence under this Act has led to displacement of the victims from their residence, the State Government shall arrange for the accommodation of the victims and take all necessary steps to rehabilitate such victims. (2) Where the offences under this Act, has to lead to the displacement of more than fifty persons, the appropriate Government shall set up relief camps in the manner specified under Section 27. 27. Establishment of relief Camps.- (1) In accordance with sub-section 2 of section 27, the State Government shall establish relief camps in safe locations for all victims. (2) Relief camps under sub-section (1) shall continue to be operated by the State Government until such persons return to their original habitations, or are resettled in a new suitable location. (3) Relief camps established under sub-section (1) shall, at the minimum, regardless of the circumstances and without discrimination, provide such persons with:

(a) basic shelter which is appropriate and adequate to protect the residents of the camps from extremes of the weather, and which provides due privacy especially to women and girls;

(b) twenty four hour security at the relief camp; (c) adequate nutritious and culturally appropriate food; (d) potable drinking water; (e) adequate clothing which is culturally appropriate and sufficient to

protect the residents of the camp from extremes of weather; (f) essential medical services including antenatal and postnatal care of

expectant mothers, pediatric care and emergency and rehabilitative services for the injured and referral services wherever necessary;

(g) adequate sanitation; (h) psycho-social and trauma counseling and psychiatric services; (i) child-care services for infants and small children; (j) educational facilities for children; (k) special facilities and assistance, as may be necessary and reasonable

for the medical condition and treatment of certain residents of the relief camps, as children, especially unaccompanied minors, expectant mothers, mothers with young children, female heads of households, elderly and disabled persons with special needs;

CHAPTER VIII

APPEALS

28. Appeals.- Notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974);

(i) an appeal shall lie as a matter of right from any judgment, sentence or order, not being interlocutory order, of a Designated Judge to the High Court both on facts and on law; and

(ii) Every appeal under this section shall be preferred within a period of sixty days from the date of the judgment, sentence or order appealed from:

Provided that the High Court may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that the appellant had sufficient cause for not preferring the appeal within the period of sixty days.

CHAPTER IX

MISCELLANEOUS

29. Power to remove difficulties.- If any difficulty arises in giving effect to the provisions of this Act, the State Government, may by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this Act as appear to it to be necessary or expedient for removing the difficulty. 30. Act to be in addition to any other law.- The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force except to the extent the provisions of other laws are inconsistent with the provisions of this Act. 31. Power to make rules.- The State Government shall have the power to make rules to give effect to the provisions of this Act.

******************************