This series analyses the changes proposed by the Criminal Law Bills in 2023. This article was first published as part of Project 39A’s Bharatiya Nyaya Sanhita Bill, 2023: A Substantive Analysis, a complete version of which can be accessed here.
This post analyses concerns around the new additions for mob lynching in the provisions for murder and grievous hurt.
Cls. 101(2) and 115(4) of the BNS introduce new provisions against the âheinous’[1] crime of mob lynching. Without specifically using the term âmob lynchingâ, special categories have been created within the offence of murder and grievous hurt by âa group of five or more personsâ motivated by the social profile of the victim, specifically their ârace, caste or community, sex, place of birth, language, personal belief and any other groundâ.[2]
I. Background
The inclusion of special provisions for mob lynching appears to be a step in the direction recommended by the Supreme Court in Tehseen S. Poonawalla v. Union of India.[3] Recognising the growing problem of mob vigilantism and its implications on the rule of law, the Supreme Court had urged Parliament to create a special law against mob lynching and provide adequate punishment for the same. The Court also introduced certain preventive, remedial and punitive measures, including guidelines for effective investigation and trial, as well as special provisions regarding monetary compensation to victims of mob lynching. These other guidelines have not been included in the proposed criminal law bills.
II. Confusions in the punishment framework
This special category of murder has been introduced within âPunishment for murderâ (Cl. 101). While murder is punishable with death or life imprisonment, Cl. 101(2) provides a range of sentences – mandatory minimum of seven years imprisonment, life imprisonment or the death penalty, against âfive or more persons acting in concertâ. Curiously, this is the first time a punishment less than life imprisonment has been stipulated for murder.
On the other hand, Cl. 115(4) which deals with the offence of voluntarily causing grievous hurt includes a special category of grievous hurt committed by âfive or more personsâ on grounds of social profile of the victim. The offence here is also punishable with a term of imprisonment extending up to seven years, which is the same as the punishment for grievous hurt simpliciter.
III. Observation on identified grounds
The proposed Cl. 101(2) and Cl. 115(4) do not include religion as one of the social indicators/markers. In Tehseen S. Poonawalla, the Supreme Court recognised religion as a prominent factor in instances of mob lynching. Further, anti-mob lynching laws sought to be introduced by a few states,[4] also recognise religion as a motivating factor for the offence of lynching.
Instead, the provisions in the BNS employ the phrase âpersonal belief or any other groundâ, without any definitional clarity. While it is possible to interpret the scope of this phrase broadly to include religion within its ambit,[5] the absence of an explicit mention of religion in the provisions sits rather oddly. This is particularly so considering religion continues to be mentioned in other provisions of the BNS; such as Cl. 194 which criminalises enmity between groups on the grounds of âreligion, race, place of birth, residence, language, caste of community or any other groundâ, and Chapter XVI pertaining to offences relating to religion.
In any case, the language of Cl. 101(2) and Cl. 115(4) and their apparent implications, raise serious questions about the purpose behind including these provisions. They dispel any assumptions about mob lynching being an aggravated form of murder and grievous hurt.
IV. Concerns with provision for murder caused by mob lynching
The BNS does not create a new offence of mob-lynching resulting in murder, but only introduces a special category of murder, with a special range of punishment. This is introduced by way of an additional sub-clause in Cl. 101 âPunishment for murderâ. Cl. 99 provides the ingredients constituting the offence of murder, the actus reus (act or omission) and mens rea (criminal intent). However, a special qualification has been introduced in Cl. 101(2) – that the murder must be committed âon the ground of race, caste or community, sex, place of birth, language, personal belief or any other groundâ. It is unclear whether this creates an additional requirement for intent to murder on the basis of the social profile of the victim. The phrase âany other groundâ has also not been qualified and creates an ambiguity on whether it relates to the social profile of the victim or could extend to other reasons as well.
Additionally, though Cl. 101(2) uses the term âacting in concertâ to determine involvement of persons in the offence, the implication of this phrase and whether it creates common intention for murder, is unclear. This is because Cl. 101(2) is not a deeming provision; unlike the provision for gang rape (Cl. 70) where the persons involved have been deemed to have committed the offence of rape. Instead, it appears that for Cl. 101(2) to apply, the âfive or more persons acting in concertâ should first be found guilty of murder, as provided for by Cl. 99, and thereafter punished under Cl. 101(2). Therefore, from the language of Cl. 101(2), it appears that it only provides punishment for murder involving a special fact situation or a special category of murder and does not create a separate offence.
Curiously, a reduced range of punishment for murder due to mob lynching, has been introduced in Cl. 101(2), compared to the offence of murder simpliciter. The inclusion of a range of sentences might be to account for the different degrees of involvement and the role of multiple accused in a case of mob lynching. This rationale is also in tandem with jurisprudence on individualised sentencing and judicial discretion in cases of multiple accused. However, this provision creates an anomaly, where though all the accused have been found guilty for murder, the option for a punishment of at least 7 years imprisonment has been introduced only in special cases of murder caused by mob lynching. The relevance of differing levels of involvement of multiple accused is equally relevant for the purposes of punishment in instances of murder, beyond mob lynching. As Cl. 101(2) has been added as a separate section, those convicted of murder under Cl. 99 cannot be additionally punished under Cl. 101(1). In such cases, only Cl. 101(2) would be applicable.
Therefore, far from recognising mob lynching as an aggravated form of murder, this provision creates an anomalous situation where a minimum sentence of seven years is permissible only in cases of murder caused by mob lynching.
V. Concerns with provision for grievous hurt caused by mob lynching
The purpose behind including a separate sub-clause for mob lynching in the provision for âVoluntarily causing grievous hurtâ (Cl. 115) is unclear. Cl. 115(4) provides a special category of grievous hurt, by introducing a special requirement of intention, requiring that the commission of grievous hurt by âfive or more personsâ must be motivated by the social profile of the victim. Notably, this provision would only be applicable against persons directly causing (or intending to cause) grievous hurt, and would not include other persons inciting or involved in planning or âacting in concertâ,[6] because of the omission of this particular phrase from the provision.
However, there is no difference in the punishment provided for this special category of offence and the offence of grievous hurt simpliciter; both provide for punishment for a term of imprisonment which may extend to seven years. Therefore, there appears to be no difference in the treatment of grievous hurt and grievous hurt due to mob lynching, and raises questions about the legislative intent behind introducing this separate category of offence.
[1] PIB Delhi, âUnion Home Minister and Minister of Cooperation, Shri Amit Shah introduces the Bhartiya Nyaya Sanhita Bill 2023, the Bharatiya Nagarik Suraksha Sanhita Bill, 2023 and the Bharatiya Sakshya Bill, 2023 in the Lok Sabha, todayâ (Press India Bureau, 11 August 2023), last accessed on 30.08.2023. [2] Cl. 101 (2), BNS Punishment for murder: âWhen a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other ground each member of such group shall be punished with death or with imprisonment for life or imprisonment for a term which shall not be less than seven years, and shall also be liable to fineâ. [3] Writ Petition (Civil) No. 754 of 2016 dt.17.07.2018. [4] Manipur Protection from Mob Violence Ordinance, 2018; West Bengal (Prevention of Lynching) Bill, 2019; Jharkhand (Mob Violence and Mob Lynching Prevention) Bill, 2021; Rajasthan Protection from Lynching Bill, 2019. [5] S.R. Bommai v. Union of India (1994) 3 SCC 1, para 182. [6] This is in contrast to even the provision for punishment for murder for mob lynching (Cl. 101(2), BNS), or the offence of organised crime (Cl. 109, BNS).
