Recently, the Mainstream English Media has been tirelessly pushing the “lynchistan” narrative which is aimed at maligning the Narendra Modi-led Union Government. While there are arguments made for and against the narrative, I will not further muddy the waters, as my article is regarding the stupidity of Maanav Suraksha Kaanoon (MASUKA) Act, (read the Draft here) which has been born out of the wider “#NotInMyName” movement.
A cursory glance at those involved in the so-called “National Campaign against Mob Lynching” makes it clear who are the political forces behind the drafting of the bill. The “campaign” was founded by “youth leaders” Tehseen Poonawalla, Shehla Rashid, Kanhaiya Kumar, Jignesh Mewani, while the drafting committee was headed by Sanjay Hegde, Senior Supreme Court lawyer.
The legislation is redundant and stupidly dangerous
While the intentions of the act are undoubtedly positive (“To prevent lynchings”), the law is stupidly dangerous and fails to tackle the root of the law and order problem. There are three general glaring flaws with the proposed legislation:
Firstly, the law is redundant; there might not be a specific section defining and punishing lynching, but reading sections 302, 326 and 149 of the Indian Penal Code makes it clear (as if it wasn’t) that a “lynching” is an illegal act. When Kum. Swara Bhaskar says “Lynching does not find mention in the Indian Penal Code. No particular law has been passed to deal with lynching,” she is right, but she fails to consider the fact that lynching is ALREADY a criminal Act.
Just because a particular offence has not per se found a mention in the Penal Code does not meant that Lynching is not an offence. The MASUKA Act thus deals with a set of offences that are already penalized. A special law to combat “lynching” would be just another statue that lies dead in the books or worse, an instrument utilized by the law enforcement agencies to browbeat unsuspecting citizens. Take the example of the SC/ST Atrocities Act: it is more or less a redundant legislation that can easily be misused. (Read Prof. Madhu Kishwar’s article on the Atrocities Act). By this argument itself, MASUKA is a sham that will achieve nothing.
Secondly, the law is badly drafted, has provisions that make no sense and some sections reads like lectures on propriety than a legislation. Section 5 for example goes thus: “It shall be duty of every police officer, in-charge of a police station to take all reasonable steps to prevent any incident of lynching, including its incitement, commission and possible spread.”
There are so many loopholes and provisions that can easily be misconstrued or misused by law enforcement agencies. Take for example the provision punishing the dissemination of “Offensive Materials” (the punishment is a minimum of one year up to three years and a fine of ₹50,000). What is the definition of “Offensive Materials”, you ask?
Section 2 (d) goes thus: ““Offensive material” shall mean any material that can be reasonably construed to have been made to incite a mob to lynch a person and shall include material promoting lynching on the grounds of religion, race, culture or any other ground.” I believe it is self evident how anything can be”reasonably” construed to be offensive material.
Also, one must not forget that the police would have additional power to harass and intimidate citizens. Section 3 clause 1 sub clause (i) states one of the “duties” of a police officer is to “make all possible efforts to identify instances of dissemination of offensive material or any other means employed in order to incite or promote lynching of a particular person or group of persons;” I could go on (for example, the statute creates yet another hierarchical judicial system to try cases of lynching), but I can feel my grey cells burning up in pain every second more I’m forced to spend reading the legislation.
Thirdly, even if we are to ignore the first two glaring problems with the enactment of the legislation, one needs to remember what caused this hullabaloo and the drafting of this proposed legislation: the lack of rule of law in the country. This is not a problem that can be solved by this legislation or any other for that matter – because the problem is not the law, the problem is the enforcement of the law. And the primary law enforcement agency, the Police – is a mess. As Jaggi points out in this piece :
Lynchistan is not something that got created after 2014. Its roots lie deeper in the lack of police reform for decades.
The answer to the lack of the rule of law is not more laws, it is rather much needed Police reforms.
The proposed legislation is redundant, stupidly dangerous, and if enacted, will not meaningfully improve the law and order situation in the country. In fact, it would have the opposite effect of further stifling the freedoms of citizens as well as subjecting to them to more harassment.
There are other points that can be made against the statute (Apetition is not really how the legislative process should work), but all that is subsumed by the graver faults of the legislation as illustrated above.
Considering all these, I am led to this conclusion: Either the proposal to enact the MASUKA law is a stupid stunt meant to garner publicity, or those behind the statute are (willingly?)ignorant of the problem with the proposed legislation. The proposed legislation has no merit and is best fit to be taught in law schools as to how a statute should not be drafted.
(This article first appeared on the author’s blog and and is being reproduced with his consent)