The Great Evasion

Cow vigilantism and the SC

A social activist displays a placard during 'Bharat Jodo: Do or Die' protest over the incidents of lynching, religious polarisation and hate, at Parliament Street in New Delhi on August 9, 2018. PTI

“We, the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure to all its citizens Justice…Liberty…Equality…Fraternity…assuring the dignity of the individual...”

Reading the Preamble of the Constitution along with names of lynched victims show us what we have become as a nation and how the Constitution, a document of ideals and aspirations has proved itself to be an alienating liberal document which does not inform our practices and beliefs.

The apex court on July 17 came down hard on the rising instances of lynching and cow vigilante violence and gave a slew of guidelines and recommended to parliament that it draft an anti-lynching law in 21st century India! The familiar debate is if another law will solve the problem. Judicial responses have their limits in tackling an issue which has deep sociological, psychological and political roots.

The judgement is being hailed as a necessary intervention as it made all states parties to the case and issued a slew of directives, which are being monitored on a periodic basis. However, the highest constitutional court did the bare minimum when faced with the regularity of lynching incidents.

Sadly, the true stakes in the case is hidden from public discourse as the court reduced the scope of the challenge from one of constitutional guarantees to one of mere guidelines and monitoring.

The word is “Good Faith” Clause. What is not being discussed is that the lead petitioner Tehseen Poonawalla had specifically challenged the provisions of cow protection legislations in six states — Rajasthan, Uttar Pradesh, Maharashtra, Gujarat, Jharkhand and Karnataka — that give legitimacy to cow vigilantes apparently acting in “good faith”; but the court did not decide on the validity of the existing “good faith” clauses.

Sample this, Section 13 of the Maharashtra Animal Preservation Act reads: “…no suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith or intended to be done under this Act or the rules made there under”. There is an identical “good faith immunity clause” in the cow protection legislations of other states.

If the legal jargon is a bit much, consider this: the cow vigilantes are entrusted with all the police powers under the law – checking for beef possession, obstructing cattle transportation, inspecting private spaces and acting on the suspicion of beef consumption, with zilch police training and accountability. All they have to say for their deeds is that they were acting in ‘good faith’, and the law would bend over backwards to allow them safe passage!

The threshold for ‘good faith’ under the General Clauses Act is lower than under Indian Penal Code (IPC). Since ‘good faith’ is not defined under these specific legislations, so the definition of General Clauses Act would apply. If under IPC, ‘good faith’ means acting with due care or acting without negligence; under General Clause Act, the threshold for ‘good faith’ would mean showing that they acted “honestly”, regardless of acting negligently.

Simply put, as long as the killers of Mohammed Akhlaq, Pehlu Khan, Junaid Khan, Akbar Khan and many more believed that the victims were consuming or possessing beef, or transporting cattle, even without having basis for such belief or acting without due care, they are protected under the law.

It would be naivety of huge proportions to think that a mischievous provision giving cover to cow vigilantism would remain dormant once the outrage against vigilantism gets exhausted. As long as the undefined ‘good faith’ clause remains on the statute book, it could be invoked selectively, disproportionately, often choosing its victims, like has been the case with the draconian Section 377 IPC or the recently invalidated Bombay Prevention of Beggary Act, 1959.

The second folly of the July 17 judgement is its generic, impersonal, detached tone. Rather than being an iron hammer, the judgement can be looked upon more like an old-worldly advice from the senior of the family. We can no longer ignore these as stray incidents and swat the guilty away with the ever so convenient ‘fringe element’ nomenclature.

When a cabinet minister chooses to garland these ‘fringe elements’ in full public view, the fringe-ness pretty much becomes the norm. The comment of the Chief Justice of India that law and order is the state government’s responsibility, though correct, again hands the Centre an excuse to stand like a spectator while the cow vigilante runs amok.

A missed opportunity

In a case that screamed for judicial censure, the judgement was a missed opportunity in three ways: the court, without the legislative or implementation force, is only left with the power of the written word to drive home the point; by not naming any of the victims — Akhlaq, Junaid, Akbar, Pehlu Khan — and, instead, reducing it to statistics, it did not do justice to the specificity of violence.

Secondly, the court collapsed the distinction between lynching and mob violence. While both are heinous in their own way, lynching is an orchestrated mob spectacle to send a signal to a minority — linguistic, religious, etc., that they better behave.

Lastly, the court elaborated on principles of equality, fraternity, unity in diversity to censure vigilantism. But, if there is one value that needed reiteration, it was constitutional citizenship — supported on the dual strand of ‘equality’, where no one can be discriminated against on the basis of their ascriptive identity, and ‘liberty’, to speak, feel, and eat as one pleases.

A judgement by the top court ought to address the key constitutional enquiry, use the power of words to lay a theoretical moral paradigm while giving relief to victims. By only passing directives to step ‘mob violence’, the top court failed in its duty to address vigilantism rooted in existing laws or to stir the moral dark spaces through it words. Through its well-intentioned directive, but too keen to avoid an executive vs judiciary conflict, the court has at best applied band-aid to a septic wound.

(Satya Prasoon is a lawyer working with the Centre for Law and Policy Research (CLPR); Praveen Kashyap is an independent researcher based in Bengaluru)

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