Takshashila Discussion Document - A Framework to Counter Mobilised Violence

A Takshashila Institution and Vidhi Centre for Legal Policy Research Report

Co-Authored with Divij Joshi, a researcher at Vidhi Centre for Legal Policy

Executive Summary

Mobilised violence is detrimental to the democratic fabric of India. It prevents individuals from enjoying their right to speak, move and conduct business freely. It can also cause injuries and loss of life to bystanders, in addition to significant economic costs from a cessation of economic activity and damage to property. In this report, ‘mobilised violence’ is defined as an act or series of acts of violence committed by a group with the intent of furthering a political purpose.

Existing legal measures have proved insufficient in addressing the problem as incidents of mobilised violence continue to occur. This is largely due to socio-political and economic concerns like societal divisions, but also because of the inability of the legal system to take into account this form of violence and adequately address it. While some laws aim to address mobilised violence by imposing restrictions on hate speech and the formation of associations or assemblies, they are insufficient and misused. The discretion given by these laws to the State is wide and prone to abuse.

The report suggests two approaches to correct some of these flaws:

1. Regulating groups with a history of engaging in mobilised violence: This approach seeks to impose costs on groups and their leadership to deter future instances of mobilised violence. However, it does not criminalise the membership of a group itself. It involves the following measures:

   1. Passage of a law that regulates groups that have a documented history of mobilised violence. This law will include procedural safeguards that ensure the law is applied only in relevant cases as well as the consequences for a group that falls within the ambit of the legislation.

   2. Introduction of civil penalties against groups that engage in mobilised violence. This is to ensure that victims of mobilised violence who have suffered damages can seek reparations. It is also to provide a tangible financial deterrent against engaging in future acts of mobilised violence.

   3. Criminalisation of militia training and arms drilling with narrowly defined exceptions. This accounts for the fact that incidents of mobilised violence are often preceded by groups facilitating the training of individuals in the use of arms to increase their ability to cause damage.

   4. Amendment of certain procedural and evidentiary standards that aid law enforcement to better target groups that engage in mobilised violence.

2. Reframing hate speech under the IPC: This approach is intended to deter the use of hate speech by individuals to incite violence. It calls for the introduction of narrowly tailored provisions in the Indian Penal Code, 1860 that penalise incitement or provocation of violence, accompanied by a repeal of certain existing provisions that are overly broad in scope and prone to abuse.

In addition to these approaches, it is also necessary to improve the capacity of the State to better address mobilised violence. State institutions are presently ill-equipped to do so. These institutions must be reformed to account for the phenomenon of mobilised violence and formulate appropriate responses. The report recommends that the National and State Human Rights Commissions act as mobilised violence observatories to observe, analyse and disseminate data on mobilised violence, as a starting point for framing policy and legal solutions to the issue. Further, the report recommends reforming the office of the public prosecutor for cases related to mobilised violence to increase transparency and accountability, as well as reduce political interference. Finally, the report proposes reforming the law around sanctions before prosecutions and the withdrawal of cases to reduce executive interference in the criminal justice system.

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