Mob Lynching, Named at Last

Then each member of such group is punished with death or imprisonment for life, and fine.

The fourth element is the innovation and the difficulty. The prosecution must prove why the victim was chosen. That is a question about the crowd's reason, and reasons are hard to prove. In practice it will be proved by what the crowd said, by what was recorded, by what was left alone, and by the surrounding history.

"Personal belief" is worth noticing. It is wider than religion and reaches a killing over what a person is thought to eat, to believe or to have done in private.

Section 117(4): the same structure for grievous hurt

When a group of five or more persons acting in concert causes grievous hurt to a person on the same grounds, each member of the group is guilty of causing grievous hurt and is punishable with imprisonment up to seven years and fine.

This matters because most lynchings do not end in death. The victim survives, and before 2023 the prosecution fell back on the ordinary provisions for hurt with the group liability sections. Section 117(4) gives the survivor's case the same structure as the deceased's.

Worked example

A man transporting cattle is stopped on a highway by about twenty people. He is accused of a purpose they attribute to him because of his community. He is beaten for forty minutes. Some of the crowd film it and the recording circulates the same evening. He dies in hospital two days later. Eleven people are eventually identified from the recording.

Charges.

• Section 103(2), against all eleven: a group of five or more acting in concert, murder, on the ground of community. Each of the eleven faces death or imprisonment for life, and none of them has to be shown to have struck the fatal blow.
• Sections 189 to 191, unlawful assembly and rioting, since the crowd had a common object and used force.
• Section 196, if what was said during or before the attack promoted enmity between communities.
• The recording is evidence and, in the hands of those who circulated it, may be a separate matter under the information technology law.

Where the case will actually be decided. Not on section 103(2), which is straightforward once membership is proved, but on the identification of the eleven, on whether the recording is proved to be authentic and unaltered, and on whether the witnesses hold. Naming the offence does not solve any of those.

Distinctions

What it does NOT mean

The word "lynching" does not appear in section 103(2). The sub-section describes the conduct without naming it. An answer should describe the elements rather than assume the label is statutory.

It does not displace group liability. Sections 3(5) and 190 remain available and are still used, particularly where the number is fewer than five or the ground of selection cannot be proved.

And it does not answer the enforcement problem. Every difficulty this book records about riot prosecutions applies here: registration, identification, the witness who must go on living there, and the delay. A new offence changes what can be charged and changes nothing about what can be proved.

Limits and criticism

The Supreme Court's directions on lynching, given in 2018 and examined in Module IV, were preventive, remedial and punitive, and the punitive limb asked Parliament to create a separate offence. Section 103(2) is the answer to that request, five years later.

Two criticisms survive it. The sentence is unchanged, so the provision adds no punishment to what murder already carried. And the requirement of five or more leaves a killing by three or four on the same ground outside the sub-section entirely, which is an arbitrary line in a provision whose whole purpose is to describe the wrong accurately.

Quick revision

• Section 103(2): group of five or more 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 punished with death or imprisonment for life, and fine.
• Section 117(4): the same structure for grievous hurt, seven years and fine.
• Before 2023 there was no offence of this name; a lynching was charged as murder with group liability.
• The innovation is that the ground of selection is an element, so it appears on the record.
• Criticisms: the sentence is unchanged, and the threshold of five is arbitrary.
• Naming the offence does nothing about registration, identification or witnesses.

Test yourself

1. State the four elements of section 103(2). 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 is then punished with death or imprisonment for life and fine.

2. What does section 103(2) add that section 103(1) with group liability did not? It makes the ground of selection an element that must be proved and found, so the record of the case states what the killing actually was, and it punishes each member of the group in terms without requiring proof of who struck the fatal blow.

3. Four men beat a fifth to death because of his community. Does section 103(2) apply? No. The sub-section requires a group of five or more. The killing is murder under section 103(1), with liability distributed under section 3(5), and the ground of selection has no statutory effect on the sentence.

4. Give the two standing criticisms of the new sub-section. That it leaves the sentence exactly where murder already had it, so its effect is expressive rather than operative; and that the threshold of five or more is arbitrary in a provision whose purpose is to describe the wrong accurately.