Collective Violence and Criminal Justice System Notes | LL.M. Semester 2 | Mumbai University | munotes

Contents

Module I

1. What This Paper Is About 1
2. The Criminal Justice System: Its Four Parts 6
3. Why a Crowd Defeats a Criminal Law Built for One Person 10
4. Force: The Ordinary Word and the Legal One 14
5. Criminal Force and Assault 19
6. The State's Monopoly of Legitimate Force 22
7. Coercion: Section 15 of the Contract Act 26
8. Coercion, Duress and Undue Influence Distinguished 30
9. Violence: The Word the Syllabus Does Not Define 34
10. Direct, Structural and Cultural Violence 38
11. Symbolic Violence 42
12. Institutionalised Violence 45
13. Structural Violence in India, Measured 49
14. What Makes Violence Collective 53
15. A Typology: Riot, Pogrom, Massacre, Lynching, Genocide, Terrorism, Insurgency 56
16. Common Intention and Common Object 60
17. Unlawful Assembly: The Five Common Objects 64
18. Rioting, and the Offences Around It 68
19. Affray, and How It Differs from Rioting 72
20. Promoting Enmity Between Groups 75
21. Mob Lynching, Named at Last 79
22. Destruction of Public Property 83
23. Dispersing an Unlawful Assembly: The Graduated Powers 87
24. Prohibitory and Preventive Orders 92
25. Private Defence, and the State's Use of Force 97
26. Article 19 and the Freedoms Collective Action Is Made Of 102
27. Processions, and the Right to Assemble 107
28. Ahimsa in the Indian Traditions 112
29. Gandhi's Ahimsa, and Satyagraha 117
30. Ambedkar's Objection, Which a Serious Answer Must Face 121
31. The Revolutionary Tradition in the Freedom Struggle 125
32. Sedition: From Tilak to Kedar Nath to the 2022 Abeyance 129
33. Section 152: What Replaced Sedition 135
34. The State's Approach: Preventive Detention 139
35. The State's Approach: The Special Criminal Statute 144
36. The Armed Forces and Internal Violence 152
37. The Maoist Approach, and the State's Answer to It 157
38. Upendra Baxi's Frame: Dissent, Development and Violence 162
39. The Human Rights Approach 166
40. Is Ahimsa Relevant Today? 171

Module II

1. What Agrarian Violence Is 175
2. The Agrarian Structure the Violence Grows Out Of 179
3. The Colonial Land Settlements 183
4. Phase One: Resistance to the New Revenue State 187
5. Phase Two: The Tribal Risings 190
6. Phase Three: Commercial Agriculture, Debt and Tenancy 194
7. The Peasant in the National Movement 198
8. The Telangana Armed Struggle 202
9. Tebhaga, and the Sharecropper 206
10. Naxalbari, and What Followed It 209
11. The Bihar Massacres 213
12. Arwal, and the Tribunal That Reported On It 217
13. The Private Caste Army 221
14. Repression: The Police Response to Agrarian Conflict 225
15. Repression: The Encounter 230
16. Repression: Arming Civilians, and Why the Court Stopped It 235
17. Land Reform: Abolition of Intermediaries 240
18. Land Reform: Ceilings on Holdings 244
19. Land Reform: Tenancy Security 248
20. Why Land Reform Failed, and What Followed 252
21. Bonded Labour: The System and the Act 256
22. Bonded Labour Before the Courts 261
23. The Agricultural Labourer and the Minimum Wage 265
24. The Forest, the Tribe, and the Forest Rights Act 269
25. The Fifth Schedule and PESA 274
26. Tribal Land Alienation Before the Courts 279
27. Development Displacement as Agrarian Violence 285
28. The Green Revolution and Its Consequences 289
29. Farmer Suicide as Agrarian Violence 293
30. The Farm Laws Protest 297
31. What the Criminal Justice System Does With Agrarian Violence 301
32. Commissions of Inquiry Into Agrarian Violence 305
33. Objective and Causative Factors of Collective Agrarian Violence 309
34. What the Law Can and Cannot Do Here 313

Module III

1. Who the Weaker Sections Are, and Who Decides 317
2. The Constitutional Vocabulary of Protection 321
3. Violence Against Women: The Scale, Counted 325
4. Rape: The Offence, and How Its Definition Changed 329
5. Mathura, and the Amendment It Forced 333
6. Consent, and the Presumption in Custodial Rape 338
7. The Two-Finger Test, and Its End 342
8. The 2013 Amendment, and the Committee Behind It 346
9. The Marital Rape Exception 350
10. The Trial: Dignity, In Camera, and the Victim's Identity 354
11. Sexual Harassment at the Workplace 359
12. Domestic Violence: A Civil Answer to a Criminal Problem 364
13. Dowry Death and Cruelty 369
14. Honour Killing, and the Khap 374
15. Acid Attack 379
16. Trafficking and Prostitution 383
17. Violence Against Children: The Scale, Counted 387
18. The POCSO Scheme 391
19. POCSO Before the Courts 396
20. Child Labour 400
21. Child Marriage 405
22. The Child in Conflict With Law 410
23. Corporal Punishment and Violence in Institutions 416
24. Violence Against Persons With Disabilities 422
25. Violence Against Transgender Persons 428
26. Violence Against the Migrant and Unorganised Worker 435
27. Custodial Violence: The Scale and the Law 441
28. Custodial Death, and the Constitutional Remedy 447
29. The Safeguards on Arrest, and How They Are Enforced 452
30. Encounter Killings, and the Guidelines 460
31. Institutionalised Violence: Causes and Remedies 466
32. Compensation as a Remedy for Institutional Violence 471
33. The Human Rights Commissions 477
34. Intersecting Disadvantage, and Why One Axis Is Not Enough 482
35. What Criminal Law Can and Cannot Do for the Weaker Sections 487

Module IV

1. Caste: What It Is, and Why the Law Had to Name It 492
2. Untouchability, and Article 17 496
3. The Protection of Civil Rights Act 1955 500
4. Why a Second Act Was Needed 505
5. The Notion of Atrocities 509
6. The Offences in Section 3(1) 514
7. The Aggravated Offences in Section 3(2) 519
8. Neglect of Duty by a Public Servant 524
9. The 2015 Amendment 528
10. Special Courts, Exclusive Courts, and the Right to Appeal 532
11. Rights of Victims and Witnesses 536
12. Presumption, Forfeiture, Collective Fine and Externment 540
13. The Bar on Anticipatory Bail, and the Challenge to It 545
14. Kashinath Mahajan, the Protest, and the Review 549
15. The 2018 Amendment and Section 18A 554
16. In Public View, and the Limits of the Offence 558
17. The Act in Practice: What the Figures Show 562
18. Manual Scavenging as Caste Violence 566
19. Social Boycott, and the Maharashtra Act 571
20. Caste Inside the Prison 577
21. Temple Entry, and the Freedom of Religion 581
22. Caste Amongst the Religious Communities 585
23. Communalism: What It Is, and What It Is Not 589
24. Communal Violence in Outline: The Pattern Since 1947 593
25. Partition, and What It Left Behind 597
26. The Anti-Sikh Violence of 1984 600
27. The Bombay Riots of 1992-93 604
28. The Srikrishna Commission 609
29. Gujarat 2002, and the Criminal Justice Response 613
30. Muzaffarnagar 2013 617
31. Lynching, and the Directions in Poonawalla 621
32. Hate Speech: The Offences 625
33. Hate Speech and the Freedom of Speech 631
34. Religious Places: The 1991 Act and the 1988 Act 635
35. The Ram Mandir and Babri Masjid Issue 639
36. Religion and Elections 643
37. Commissions of Inquiry: The Act, and What a Commission Can Do 648
38. The Findings of the Various Commissions of Inquiry 653
39. The Communal Violence Bill That Never Became Law 657
40. The Police and Communal Violence 661
41. The Union's Power When a State Cannot Keep Order 667
42. Remedies for Collective Violence, and How Well They Work 671