The Crime Vanishes: Mob Lynching, Hate Crime and Police Discretion in India

Abstract

Amidst high-profile incidents of hate violence against religious and caste minorities, the Indian Supreme Court laid down a series of guidelines to address mob violence and lynching in its July 2018 Tehseen Poonawalla order. The order mandated a police supervisory structure and stronger official accountability, more stringent penal provisions, victim and witness protection, and more expansive compensation and rehabilitation schemes. It also recommended the enactment of anti-lynching legislation. This article contributes to the conversation about the order’s implementation by drawing from the empirical work conducted by Jindal Global Law School’s (JGLS) legal clinic on hate crimes. It focuses on how the police deploy their official discretion in investigating and prosecuting incidents of mob violence and lynching. First, based on detailed interviews of police officials, the article shows how the ambiguity of the category of lynching continues to plague the implementation of the order. Second, taking a case study of a potential hate crime investigation, it shows how the police structures investigations and charges to undermine the goals of criminal law. This article shows that police officials use their discretion to construct lynching — during various stages of investigation and charging — to obscure and invisibilise the crime. This quotidian exercise of discretion is shaped by broader systemic problems in India’s criminal justice system, especially its lack of independence, inadequate training, and institutional bias. The article advocates that these systemic concerns must be integrated in a meaningful response to mob lynching and hate crimes in India. In Part 2, we discuss the Tehseen Poonawalla Guidelines, specifically the background of the case, the key aspects of the Court’s directions, and the continuing evaluation of the order’s implementation. We also point out the weaknesses and ambiguities in the Court’s approach. These weaknesses appear to have been enhanced in the manner the police deploy their discretion in concrete cases. We focus on this issue in the following two parts. In Part 3, we give an account of how the police interpret the categories of lynching and mob violence based on a series of interviews with the police officers in charge of supervising and conducting investigations. These interviews reveal that despite the claims of state governments, police personnel have not evolved an operational definition of the category. Consequently, a range of background assumptions continue to filter into the manner in which the police construct lynching as a crime in concrete cases. Part 4 develops this theme further. It focuses on one case of lynching in the town of Bareilly in Uttar Pradesh, and studies how the police obscured the crime through the manner in which it structured the charge sheet. Part 5 attempts to situate these empirical insights in the broader literature on policing in India and suggests that any conversation around the implementation of the Guidelines must integrate the larger issues of policing culture and institutional design. Part 6 concludes that our account of police discretion illuminates the complex relationship between systemic weaknesses and the concrete context of violence. This, we argue, should direct us towards a more nuanced and comprehensive criminal law reform to address hate violence in India.