Individual liberty should not be sacrificed for the large, but ultimately hollow, goal of public order.
The Bulandshahr incident of December 2018 bears all the hallmarks of mobilised violence: an undisguised political purpose, backing from well-organised groups, and a disregard for the lives of civilians and police personnel alike. In addition to the loss of life and property, such violence undermines the state of liberty in the country. For the violence is often directed against a diversity of opinions, be it on grounds of religion, language, eating habits, caste, or any of the other aspects of our lives that set us apart from each other and that form the basis for our richly plural society. The principle of liberty requires us to respect these differences and to let individuals determine for themselves the way they want to live. Mobilised violence strikes against this principle. It prevents individuals from expressing themselves in the present through brute force and creates a chilling effect that prevents more expression in the future for fear of reprisal. This erosion of liberty leaves our society poorer.
Any intervention to alter this status quo will not be an easy one. The change that is most needed is an enlightened citizenry, one that respects the liberty of others. After all, every individual acting as part of a mob has a choice to not engage in violence. We must move towards a society where more individuals make the right decision when faced with this choice.
This is not to say that legal interventions, including the creation or amendment of specific statutes, are not necessary. They can help bring perpetrators of violence to justice and, in the right conditions, act as a deterrent against further violence. They are also the lowest hanging fruit when it comes to effecting change, for it is easier to change laws than it is to change mindsets. The report A Framework for Countering Mobilised Violence (Disclaimer: I was an author of the document) looks at precisely this point of intervention.
Such legal interventions are also tricky to implement. Much of this has to do with the conundrum around how they operate: they legislate on liberty in a bid to protect liberty. They impose restrictions on speech and the ability of individuals to form groups with the objective of preventing harm to others. This trade-off, while acceptable in principle, must be approached with caution. There is a risk of the State assuming a disproportionate amount of power in the process, the power to determine the boundaries of acceptable speech and association. A poorly thought out intervention can thus leave liberty exposed to a more insidious threat instead of protecting it.
The status quo in India highlights this risk, with several statutes doing more harm than good. For example, the provisions against hate speech in the Indian Penal Code, 1860 adopt vague standards that have been used to target minority groups, dissidents, and artists. Similarly, the legal instruments that regulate groups, such as the Unlawful Activities (Prevention) Act, 1967, vest wide discretionary powers in the State apparatus to clamp down on the formation and operation of organised groups. Not only do such poorly drafted legal instruments fail to counter mobilised violence, they also dent the State’s reputation as a protector of liberty.
In the report mentioned before, we recommend turning around these failings while thinking about potential replacements for the statutes. So, any new provision of law that is introduced must have a narrow scope of application. The provisions around hate speech are a case in point. Instead of penalising vague actions such as promoting enmity between groups or hurting religious sentiments, the law must restrict itself to targeting speech that leads to incitement of violence, where there is proximity between the speech in question and the violence that is alleged to have resulted from it.
When it comes to regulating groups, the law must do away with criminalising the act of being a member of a designated group. Instead, the focus should be on imposing costs on groups that have a history of promoting mobilised violence. This must be accompanied by the necessary procedural safeguards, including a more dispersed decision-making process where both the executive and the judiciary have a say, as well as an opportunity for the groups to plead their case.
Consideration for individual liberty must thus be at the centre of any legal intervention to counter mobilised violence. It cannot be an afterthought and it certainly cannot be sacrificed for a larger, but ultimately hollow, goal of public order. The sooner the powers that be recognise this, the sooner we will be headed in the right direction to having a public policy solution to eradicate mobilised violence.