“The series of mob lynching incidents in India bolster what has been defined by Hobbes as the state of nature. At the status quo it would not be unjust to say that the democratic setup of India is inclining towards the rule of mobocracy. This article highlights undefined fiction of mob lynching and need to have judicial detour of constitutionalism and secularism.”
MOB LYNCHING – UNDEFINED FICTION OF LIBERTIES OF DEMOCRACY AND RELIGION
“Once the light is on it, it spreads automatically”- Immanuel Kant
The quote of one of the greatest philosopher fits best with regard to the rule of mobocracy. The rule of mobocracy or mob lynching has always been a disputatious practice in the society. The spike of the mob lynching incidents has now become the saddest reality of a democratic country which is embedded with the harsh and inhuman reality of the modern society.
“Dissent is always the symbol of a vibrant democracy. Voices in opposition cannot be muzzled by persecuting those who take up unpopular causes. Where however the expression of dissent appears upon the prohibited field of incitement to violence or the subversion of a democratically elected government by recourse to unlawful means the dissent ceases to mere expression of opinion.”[i]
After more than 74 years of India’s independence the emergence of mobocracy which is characterised by ostracism and violence against the lower caste, minorities or any other group tussle the religious and democratic freedom guaranteed by the Indian Constitution. The life of human being has come at the point of stake where there are deaths everywhere and there is no law and no government to protect the life of human being. Increase in the mob lynching incidents have aggravated and contravene the social and secular fabric of the democratic country. The rise in the incidents of mob lynching in India shows an odd and outrageous and barbarous behaviour of the mankind in the 21st century of modern world of science and technology. Thus mob lynching has created rifts and deep gorge between the different religious communities in India. The incident of mob lynching can be seen as unfettered eel of inhumanity and injustice. This clearly depicts the feeling of apathy towards the victims of such offence.
A three judge bench in Tehseen S. Poonawalla v. Union of India[ii] held that the concerned state government has to take stern measures to stop the incidents and violence of mob lynching also court further recommended Parliament to create a special law in order to curb the mob lynching and providing adequate punishment for the wrongdoers.
Right to propagate one’s religion does not give to anyone the right to forcibly convert any person to one’s own religion. Forcible conversion of any person to one’s own religion might disturb the public order and hence is prohibited by law as they are opposed to the principles quoted in the Indian Constitution. The idea of the Constitutionalism is to bring harmonious state and taking all the preventive action against all vulnerable activities which are provoking instability in the nation. Certifying such laws as unconstitutional and eradicating from the society is a way of preserving the true value of constitutionalism.
THE PARAMETER OF CONTEMPORARY PREDICAMENT OF CONSTITUTIONALISM AND SECULARISM
“I do not expect India of my dreams to develop one religion i.e. the wholly Hindu or wholly Christian or wholly Muslim, but I want it to be wholly tolerant with its religious working side by side with one another”- Father of the Nation (Mahatma Gandhi)
Modern constitutionalism requires some form of secularism. At a minimum, the constitutionalism in question calls for a limitation of powers of governments; adherence to the principle of rule of law; significant protection of fundamental rights of citizens, including some versions of a freedom of religion right and guarantees for maintaining an adequate level of democracy.[iii] On the other hand at the very least the secularism at stake must exclude complete fusion between the state and one particular religion, presumably the one followed by the country’s majority, while including some modicum of tolerance for religious diversity. In the context of contemporary Western Constitutional democracies, Secularism remains conceptually distinct from religion.
CONSTITUTIONALISM AND SECULARISM: DEFINING THE LINK
“A good and virtuous constitutionalism having moral foundation protects not only fundamental freedom but also creates a bridge between conflicting interests and becomes the harbinger to the social needs and produced good legislator and good citizens. The Constitutional Courts as sentinel on the qui vive therefore function objectively and dispassionately to correct imbalances and keep check on every wing of the state without trespassing upon the field assigned or power conferred upon the other wings and at the same time to maintain a delicate balance on even kneels.”
Constitutionalism and Secularism are guaranteed to the citizens of the country, giving an equal chance to every sect and community to be on the equal pedestal. India is constituted into sovereign, democratic republic to secure to all its citizens fraternity assuring the dignity of the individual and the unity of nation. The sovereign democratic republic exits to promote fraternity and the dignity of the individual citizen and to secure to the citizens certain rights. This is because of the objective of the state can be realised only in and through the individuals. The ideology behind calling India to be a secular country is to give people equal chance in the matters of religion and to represent the true feeling of democracy. Indian Constitutional framers sought to tie their new state to the ideas of modernity and liberalism by creating a government that would ensure citizen’s right while also creating the conditions for democratic citizenship. Balancing these two goals has been particularly challenging with regard to religion as exemplified by the emergence of a peculiarly Indian understanding of secularism which requires the non establishment of religion but not the separation of religion and state.
RIGMAROLE OF SECULARISM
“The concept of Secularism which is implicit in our Indian Constitution secures to all its citizens “liberty to thought, belief, faith and worship”. The 42nd Amendment Act of 1976 which has inserted a word “secular” in the Preamble gives a new impetus to the citizens of India to have freedom of religion. The Supreme Court of India in explaining the secular character of the Indian Constitution said, “There is no mysticism in the secular character of the State. Secularism is neither Anti- God nor Pro – God; it treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be discriminated against on the ground of religion.”[iv] The state has no official religion of its own. It should treat all religions equally without any distinction. The State must extend equal and similar treatment to the church, the mosque and the temple. Thus, every man should be allowed to go to heaven in his own way. Worshipping God should be according to the dictates of one’s own conscience.[v] Man is not answerable to the State for the variety of his religious views.[vi] The right of worship was granted by God for man to worship as he is pleased. There can be no compulsion in law of any creed or practice of any form of worship.[vii]”
In S.R. Bommai v. Union of India,[viii] The Supreme Court has held that “Secularism is basic feature of the Indian Constitution. The State shall treat equally all religions and religious denominations. Religion is matter of individual faith and cannot be mixed with secular activities. Secular activities can be regulated by the state by enacting law. Justice Ramaswami observed that secularism is not Anti- God. In the Indian context, secularism is a positive concept. Thus, the Indian context embodies the positive concept of secularism and has not accepted the American doctrine of secularism, which is the concept of erecting a wall of separation between Religion and State. The concept of positive secularism separates spiritualism with individual faith. The state is neither anti – religion nor pro-religion. In matters of religion, the state is neutral and treats every religion equally.”
Dr. Bhimrao Ambedkar’s conception towards democracy and secularism was summarised by the Supreme Court in the following observation:
“Secularism not only meant that the state should have no religion of its own and should be neutral as between different religions but that any political party which sought to capture or share power should not espouse a particular religion, for, if that party came into power, the religion espoused by it would become the official religion and all other religions would come to acquire a secondary or less favourable position.”[ix]
Thus the “essence of Secularism in India is the essence of recognition and preservation of the different types of people, with diverse languages and different beliefs and placing them together so as to form a whole united India”.[x] Thus, it is the contribution of our founding fathers that we have a Constitution which is secular in character and which caters to the tremendous diversity in our country. [xi]“Article 30 ensures the protection of linguistic religious minorities, thereby preserving the secularism in the country. Holding that word secularism used in the Preamble was reflected in provision contained in Articles 25 to Article 30 and Part IV–A to the Constitution, the Apex Court said that secularism was susceptible to a positive meaning, that was, developing understanding and respect towards different religions. The court thus ruled that study of religions in school education, could not be held to be an attempt against the secular philosophy of the Constitution.[xii]”
“Law and Order exist for the purpose of establishing justice and when they fail in this purpose they become dangerously structured dam that block the flow of social progress”[xiii]
Thus, in a nutshell, this article lays emphasis on the increasing incidents of mob lynching, which has brought the rule of mob in conflict with rule of law. The need for the time is to have the best set of laws for the offence of mob lynching which can curb the offence and would certainly change the mindset of the people living in the society. Individuals who are the part of mob lynching think themselves to be sole proprietors of Justice delivery system and completely negate the concept of rule of law and importance of the role of the judiciary and thus at times, kill innocent people in the name of justice and religion. If justice has to be delivered by way of mob justice then, why the Constitution makers constituted the social documents i.e. the Constitution of India? Thus, this remains still big question unless and until no steps would be taken by the government to curb mob lynching.
“To achieve the dream of becoming the successful democracy religious freedom are indispensible. As unfortunate as it may seem the most important development in our system over time has been the rapid decline in the quality of democracy and religious freedom followed by a constant deterioration of values.”
[i] Romila Thapar v. Union of India, (2018) 10 S.C.C. 753 (India)
[ii] Tehseen S. Poonawalla v. Union of India (2018) 6 S.C 72 (India).
[iii] Michel Rosenfeld, “ Constitutionalism and Secularism: A western Account”, Benjamin Cardozo Law Review, March 26 2019, accessed on dated 5th September 2020 https://poseidon01.ssrn.com/delivery.php?ID=4180830720210300101220T=pdf
[iv] St Xavier’s college v. State of Gujarat , AIR 1974 SC 1389 at 1414
[v] Dowens v. Bidwell, (1901) 182 US 244
[vi] United States v. Ballard, (1944) 322 US 78
[vii] Cantwall v. Connecticut, (1931) 310 US 295
[viii] S.R. Bommai V. Union of India AIR 1994 SC 1918
[x] Virodhak Sangh v. M.M.K. Jamat, AIR 2008 SC 1892.
[xi] T.M.A. PAI Foundation v. State of Karnataka, AIR 2003 SC 355
[xii] Santosh Kumar v. Secretary, Ministry of human resources AIR 1995 SC 293
[xiii] Letter From Birmingham Jail [Martin Luther King]