Lynching, and the Directions in Poonawalla

A judgment that asked Parliament for an offence of lynching, and the two sub-sections Parliament wrote five years later.

In the wording a student can write in an exam: section 103(2) of the Bharatiya Nyaya Sanhita 2023 provides that when 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 similar ground, each member of the group shall be punished with death or imprisonment for life and fine; and section 117(4) provides that when such a group causes grievous hurt on any of the same grounds, each member is guilty of causing grievous hurt and punishable with imprisonment up to seven years and fine.

Tehseen S. Poonawalla v. Union of India, AIR 2018 SC 3354, decided on 17 July 2018, laid down preventive, remedial and punitive measures against mob violence and lynching, and recommended to Parliament that it create a separate offence for lynching.

Why lynching needed a provision of its own

Before 2023 a lynching was prosecuted as murder, with the group brought in by common intention or common object. That is workable and it misses two things.

It does not name the ground. A murder is a murder whether the victim was chosen at random or because of his religion. The chapters on caste have already shown what naming does: it makes the harm visible, countable and expressible.

It does not describe the group. Common object under the old law required an unlawful assembly with a common object, and proving what the object was, in a crowd that formed in minutes, is the standard difficulty of every prosecution in this paper.

Sections 103(2) and 117(4) answer both. They name five or more persons acting in concert, and they name the ground: race, caste or community, sex, place of birth, language, personal belief or any other similar ground. The last words are wide, and they are what carry the provision beyond communal killing to any group violence directed at an identity.

The two provisions compared

Two features are examinable. The liability is on each member of the group, which is a statutory form of group liability that does not require proof of a common object. And the punishments are very far apart: death for the killing, seven years for the grievous hurt, with no intermediate provision for a victim who is left disabled by a mob. Section 117(3), which punishes grievous hurt causing permanent disability or a persistent vegetative state with ten years to imprisonment for life, is a general provision and is not confined to a group or to a ground.