Mohammad Umar Abdal 
Second year law student at Aligarh Muslim University 

 "A society where citizens punish instead of courts is governed not by the rule of law but by the rule of the mob."

Mob lynching stands out as one of the gravest threats to the rule of law and constitutional democracy in modern India. It occurs when a group of individuals takes the law into its own hands and inflicts violence on a person based on suspicion, rumours, religious identity, caste, or deep-seated prejudice. In doing so, it directly violates the core guarantees of equality, non-discrimination, and life enshrined under Articles 14, 15, and 21 of the Constitution of India.

Recognizing this growing menace, Parliament introduced Sections 103(2) and 117(4) into the Bharatiya Nyaya Sanhita, 2023 (BNS), which came into force on July 1, 2024. Section 103(2) prescribes death or life imprisonment where five or more persons acting together commit murder on the grounds of race, caste, community, sex, place of birth, language, or personal belief. Meanwhile, Section 117(4) provides enhanced punishment for grievous hurt caused by a mob on similar grounds.

Despite this legislative recognition, mob violence continues unabated. The APCR Hate Crime Report (covering June 2024 to June 2025) documented 602 hate crimes, including numerous incidents of mob violence targeting religious minorities, particularly Muslims, and noted a disturbing absence of any institutional mechanism for recording such offenses.

Recent real-world incidents demonstrate that the enactment of the BNS has not eliminated mob lynching. In June 2024, three Muslim cattle transporters were lynched in Raipur, Chhattisgarh by alleged cow vigilantes. In August 2024, Sabir Malik, a migrant worker from West Bengal, was lynched in Charkhi Dadri, Haryana, on the mere allegation of consuming beef. More recently, in the Moradabad lynching case (2025), the Allahabad High Court observed that the police had initially invoked ordinary murder provisions instead of Section 103(2) BNS, exposing a persistent failure in grassroots implementation.

This article argues that although Sections 103(2) and 117(4) represent a notable legislative milestone by explicitly recognizing mob lynching, the Bharatiya Nyaya Sanhita, 2023 remains fundamentally inadequate. It fails to incorporate the comprehensive framework of prevention, police accountability, victim compensation, witness protection, rehabilitation, and institutional reforms mandated by the Supreme Court in the landmark case of Tehseen S. Poonawalla v. Union of India.

Omission of the Supreme Court's Comprehensive Framework

The primary systemic failure of the BNS is its reductive focus on punitive sentencing while completely omitting the holistic, constitutional framework established by the Supreme Court in Tehseen S. Poonawalla v. Union of India (2018).

The apex court categorized mob lynching as an act of "mobocracy" that directly subverts human dignity and the rule of law. To counter this, the Court issued a set of binding, three-tiered directives—Preventive, Remedial, and Punitive—mandating that states:

• ·       Appoint Senior Police Officers as District Nodal Officers to oversee anti-lynching measures.
• ·       Identify vulnerable districts and actively gather intelligence on social media rumours.
• ·       Set up Designated Fast-Track Courts specifically earmarked for lynching trials to ensure speedy justice.
• ·       Establish structured victim compensation and rehabilitation schemes.

By restricting its intervention to the penal outcomes of Section 103(2) (murder by a group) and Section 117(4) (grievous hurt by a group), the BNS fails to codify these vital preventive and remedial mandates. This structural omission leaves crucial operational duties entirely dependent upon administrative whim and executive discretion rather than statutory obligation.

 The Under-Inclusive Scope of Section 103(2)

Section 103(2) BNS dictates that an identity-based collective killing constitutes an aggravated form of murder:

 "When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life..."

While this provision targets bias-motivated crimes, the strict requirement to prove a specific discriminatory motive ("on the ground of...") inadvertently excludes an extensive range of non-identity-based mob violence regularly observed in practice. Examples include:

• ·       Lynchings triggered by localized social media rumours, such as child-lifting scares.
• ·       Economic or vigilante violence targeting alleged cattle theft or suspected witchcraft.
• ·       Spontaneous collective violence arising from road rage or aggressive moral policing.

Because these incidents do not strictly satisfy the explicit statutory identity markers, prosecutors are frequently forced to fall back on general murder provisions under Section 103(1) BNS. This narrow phrasing directly conflicts with the Tehseen S. Poonawalla v. Union of India ruling, which condemned all extrajudicial vigilantism regardless of the underlying motive.

Absence of a Central Statutory Definition

The BNS penalizes the act without defining the broader phenomenon. Terms like "mob lynching," "mob violence," "vigilantism," or "hate crime" are conspicuously absent from the code's definitions section.

This lack of legislative definition contrasts sharply with progressive state-level legislations, such as the Manipur Protection from Mob Violence Act, 2018 and the Rajasthan Protection from Lynching Act, 2019, both of which explicitly define the elements of a "mob" and the act of "lynching." Without a central statutory definition, enforcement agencies lack uniform operational guidelines, forcing courts to rely heavily on variable, ad-hoc judicial interpretations.

 Dilution of Public Official Accountability

The principle of holding state actors accountable for institutional negligence is fundamental to protecting civil liberties under Article 21. In Tehseen S. Poonawalla v. Union of India (2018), the Supreme Court explicitly directed that departmental and disciplinary proceedings must be initiated against police or administrative officers who deliberately fail to prevent or properly investigate instances of mob vigilantism.

This built on long-standing constitutional principles established in landmark rulings such as:

 D.K. Basu v. State of West Bengal* (1997): Establishing that state-enforced omissions or the arbitrary exercise of police powers severely undermines the rule of law.

 Joginder Kumar v. State of Uttar Pradesh (1994): Asserting that systemic executive apathy directly violates personal liberty.

Despite these clear judicial baselines, the BNS provides no independent statutory framework to hold public servants criminally or procedurally liable for wilful blindness, systemic inaction, or gross negligence during a mob assault.

Neglect of Victim-Centric Safeguards

A comprehensive response to hate-driven group violence requires a robust post-crime infrastructure. The Supreme Court in Nilabati Behera v. State of Orissa (1993) ruled that monetary compensation is a strict, public law remedy for the violation of Article 21 rights. This principle was re-emphasized in the 2018 Tehseen S. Poonawalla v. Union of India guidelines, which mandated immediate interim relief and structured rehabilitation frameworks for the families of lynching victims.

The BNS completely fails to institutionalize these mandates. It lacks distinct statutory mechanisms for:

• ·       Mandatory, state-funded victim compensation specific to hate crimes.
• ·       Comprehensive physical and psychological rehabilitation.
• ·       Statutory witness protection protocols to guard against localized collective intimidation during trial.

Failure to Codify Vigilantism as a Distinct Constitutional Wrong

Mob lynching is structurally distinct from localized group murder; it is a direct challenge to the state's sovereignty wherein private citizens usurp the judicial and policing machinery. The Supreme Court has repeatedly affirmed that the state maintains an absolute monopoly on the lawful use of force:

 Nandini Sundar v. State of Chhattisgarh (2011): Clarifying that the maintenance of law and order is an un-delegable responsibility of the State, and private groups cannot be armed or authorized to execute coercive policing functions.

 Krishnamoorthy v. Sivakumar (2015): Declaring that constitutional morality must fiercely triumph over social intolerance, collective prejudice, and majoritarian vigilantism.

By treating the offense merely as an aggravated variant of homicide, the BNS fails to conceptually penalize vigilantism as an independent, systematic crime against the state's constitutional order.

 Inadequate Safeguards for Vulnerable Demographics

Case law surrounding majoritarian and communal violence emphasizes that the state owes an elevated duty of care to historically marginalized groups and minority populations. In rulings like Archbishop Raphael Cheenath S.V.D. v. State of Orissa (2012)  and Mohd. Haroon v. Union of India (2014) , the Supreme Court held that during outbreaks of communal or identity-driven violence, the state must deploy specialized, unbiased investigative units to ensure fair trials.

Because Section 103(2) BNS integrates these offenses into the ordinary, baseline penal machinery, it fails to construct the specialized, structurally insulated investigative safeguards required to protect highly vulnerable communities from localized bias.

The Procedural Disconnect: Silence of the BNSS

A critical flaw in the 2023 criminal law overhaul is the total silence of India's new procedural code—the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)—regarding mob violence. Substantive laws like Section 103(2) BNS cannot function in a vacuum; they require specific procedural mechanisms to survive trial court scrutiny.

The BNSS fails to provide specialized rules of evidence or specialized investigation procedures for mob violence. It completely ignores the Tehseen S. Poonawalla v. Union of India  mandate to establish designated fast-track trials for lynching cases. Furthermore, it fails to create a statutory mechanism for time-bound investigations in hate crimes, allowing cases to languish under ordinary procedural timelines. Without these concrete procedural teeth in the BNSS, Section 103(2) BNS remains a paper tiger.

Structural Gaps in Trial Court Implementation

The practical friction of enforcing Section 103(2) without an accompanying procedural overhaul is already apparent in the judiciary. As seen in early 2025, the Allahabad High Court openly admonished regional police forces for defaulting to standard, individualistic murder charges instead of properly invoking the specific collective provisions of Section 103(2) BNS in an active lynching trial.

The High Court was forced to issue a fresh mandamus ordering strict adherence to the Tehseen S. Poonawalla v. Union of India  directives. This judicial intervention highlights a stark reality: introducing severe penalties—even death or life imprisonment—on paper remains functionally ineffective without specialized police training, institutional accountability, and rigorous procedural safeguards built directly into the criminal code.

Conclusion

Behind the formal legal terminology of the Bharatiya Nyaya Sanhita, 2023 lies a devastating human cost. For India’s marginalized populations—most acutely visible in the recurring, brutal targeting of Muslim men like Sabir Malik—mob lynching remains a terrifying, daily threat to existence. By focusing purely on severe sentencing after a life has already been lost, the BNS merely treats the symptoms of a deep structural wound while leaving vulnerable minorities feeling profoundly abandoned by the state.

True safety requires active protection, not just post-mortem penalties. To genuinely safeguard minority lives, the statutory law must fully absorb the binding, three-tiered framework mandated in  Tehseen S. Poonawalla v. Union of India. This requires weaving active field-level intelligence gathering, mandatory senior police accountability for institutional negligence, fast-track judicial trials, and robust, state-funded victim rehabilitation directly into the text of the criminal code. Until the law transforms from a reactive judicial archive into a proactive, protective fortress, the new penal code will remain an inadequate shield for India's vulnerable citizens.

References

Statutes

1. 1.      Constitution of India, Arts. 14, 15 & 21.
2. 2.      Bharatiya Nyaya Sanhita, 2023.
3. 3.      Bharatiya Nagarik Suraksha Sanhita, 2023.
4. 4.      Manipur Protection from Mob Violence Act, 2018.
5. 5.      Rajasthan Protection from Lynching Act, 2019.

Cases

1. 1.      Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501.
2. 2.      D.K. Basu v. State of West Bengal, (1997) 1 SCC 416.
3. 3.      Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.
4. 4.      Nilabati Behera v. State of Orissa, (1993) 2 SCC 746.
5. 5.      Nandini Sundar v. State of Chhattisgarh, (2011) 7 SCC 547.
6. 6.      Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467.
7. 7.      Archbishop Raphael Cheenath S.V.D. v. State of Orissa, (2016) 3 SCC 62.
8. 8.      Mohd. Haroon v. Union of India, (2014) 5 SCC 252.

Reports & Articles

1. 1.      Association for Protection of Civil Rights (APCR), Hate Crime Report 2024–25.
2. 2.      National Crime Records Bureau (NCRB), Crime in India Reports.
3. 3.      Roshni Shrivastava, "Mob Lynching in India: Desperate Need of Law Against Unnecessary Vigilantism," NUJS Journal of Regulatory Studies. �
4. 4.      Arnold H.T. Sangma, "Mob Lynching: An Uprising Offence Needed to be Strenuous under the Indian Legal System," International Journal of Academic Research and Development (2017). �
5. Rakesh Chandra, "The Menacing Growth of Mob Lynching: A Study in Indian Legal Perspective," Journal