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A FRAMEWORK TO
COUNTER MOBILISED
VIOLENCE
Madhav Chandavarkar*,
Ajay Patri* & Divij Joshi#
March 2019
* Researchers at the Takshashila Institution # Researcher at the Vidhi Centre for Legal Policy
2|
ProposedSolutionsfor
CounteringMobilised
Violence
The two primary recommendations for countering mobilised violence
are set out below:
1. Creation of a law that targets groups engaging in mobilised
violence and not just individual perpetrators of violence.
2. Refining the scope of hate speech under the IPC to focus on the
incitement of violence.
Mobilised violence can be better
targeted by making a few specific
changes to the legal instruments
currently in place to counter such
incidents.
3|
Whyisalegalintervention
necessary?
The costs to society from an incident of mobilised violence include:
1. Loss of life;
2. Damage to property;
3. Cessation of economic activity; and
4. Damage to regional reputation that hinders future growth.
Existing laws fall short because they:
1. Are overly broad or vague in their scope and application;
2. Have insufficient procedural safeguards to prevent abuse; and
3. Don’t target the leaders of groups committing mobilised violence
nor do they effectively target the groups themselves.
1. Incidents of mobilised violence have
massive costs to society. For
example, the cost due to cessation of
economic activity for one day in the
India can be to the tune of INR
20,500 crore.
2. Existing laws against mobilised
violence have significant
weaknesses that compromise their
enforcement.
4|
Whatis‘mobilisedviolence’? In India, the popular term for such acts of violence is ‘mob violence’.
But this term suggests that the violence is spontaneous and
uncontrolled. The use of the term ‘mobilised violence’ conveys
elements of premeditation and oversight involved in these acts of
violence.
Two features of ‘mobilised violence’:
1. The acts of violence are committed by persons who identify as
being part of a group (whether such group has a permanent or
temporary identity).
2. The violence is intended to achieve a political purpose, and is often
accompanied by public rhetoric.
Explanation - ‘Political purpose’ does not refer to party politics but
refers to the aim of the group to influence the exercise of lawful rights
and obligations by State authorities and private parties. This may
relate to issues of linguistic identity, religion, regional sharing of
resources, cultural practices, etc.
“Acts of violence perpetrated by
multiple people under the aegis of a
group, where the purpose of the
violence is to achieve an identified
political objective”
5|
Whatisnot‘mobilised
violence’?
There are many instances of violence
committed by multiple people that do
not qualify as mobilised violence. This
may be either because they:
1. Are not committed by people who
identify as being part of the same
group; OR
2. Are not intended to achieve a
political purpose.
Mobilised Violence Not Mobilised Violence
Violence committed by groups:
1. On the basis of religion,
ethnicity, culture, language
or other political ends, e.g. –
agitation for a Gorkhaland
State in West Bengal in 2017.
2. Against artists, including
painters, writers, musicians,
filmmakers, etc. in opposition
to their work, e.g. – the
protests against the movie
Padmaavat.
3. Protesting against State
actions, e.g. – fallout from the
Supreme Court’s order on
Cauvery water-sharing.
Violence committed by:
1. Organised crime outfits, e.g.
– the actions of the group led
by the dacoit Veerappan, in
the forest areas of Karnataka
and Tamil Nadu.
2. Instruments of the State in
the course of their official
functions, e.g. – the violence
against protestors of a
copper smelting factory in
Thoothukudi in 2018.
3. Individuals during
spontaneous outbreaks of
violence, e.g. – bar fights.
6|
Whatshouldthelawtarget? These characteristics offer two approaches to counter mobilised
violence:
Approach 1. Structured Grouping  Assign liability to groups
Members of a group often commit mobilised violence to further the
group’s goals. While members of the group may get punished in the
aftermath of an incident, the entire group often does not get punished
despite having the resources and having provided the platform for
individuals to engage in violence. Ensuring that the group also faces
criminal liability will help deter them from being involved in mobilised
violence.
Approach 2. Expression instigating violence  Refine the provisions
on hate speech in the Indian Penal Code, 1860 (IPC)
While the very act of mobilised violence may be sufficient to convey its
political purpose, it can also be accompanied by some expression. This
may either be expression instigating the violence before the act, or an
expression condoning the violence thereafter.
There are two characteristics of ‘mobilised
violence’ that must be considered while
devising solutions:
1. The structured grouping of the
perpetrators of such violence.
2. Any accompanying expression
instigating the violence.
7|
ApplicationFramework
The following framework illustrates the
usage of the two approaches. It has two
main axes: one signifying the presence or
absence of structured grouping, and the
other the presence or absence of an
expression instigating violence. Together,
these give rise to four scenarios in which
to apply the two approaches.
Approach 1: Assigning Liability to Groups
Approach 2: Refining the provisions on
hate speech in the IPC
Note that these approaches are not
mutually exclusive.
Expression instigating violence
Absence of expression instigating violence
Absence of
structured
grouping
Structured
grouping
Rhetoric from individuals
instigating mobilised violence
Mobilised violence with
rhetoric
Mobilised violence without
rhetoric
Spontaneous riots
Approach 2
Approach 1
Approach 1 + Approach 2
E.g. - Protests against the
movie Padmaavat
E.g. - Incidents of mob
lynching
E.g. - An incident of affray, i.e., fighting
between two or more individuals that
disturbs public peace
E.g. – Baba Ramdev’s comments on the
singing of the song Vande Mataram
8|
Approach1:Assignliabilityto
groups
Approach 1 has four different recommendations:
1. Passage of a new law to regulate groups that repeatedly engage in
mobilised violence.
2. Introduction of civil liability for groups for damage caused to
property.
3. Criminalisation of drilling and arms training.
4. Targeting leaders and organisers of mobilised violence.
The rationale for assigning liability to
groups instead of individuals is as follows:
1. Groups often have more assets than
the individuals. These can be used to
pay compensation for any damage
caused by the groups.
2. It is easier for law enforcement to
focus on one entity than on its
members in their individual capacity.
3. A group might enjoy perpetual
existence detached from its members,
allowing it the room to operate even if
some of its members are incarcerated.
9|
1a.Passageofanewlaw 1. The law will rely on the mechanism of a Watch List. Once it is
established that a certain number of members of a group have
engaged in mobilised violence OR the group’s leaders have
instigated or publicly condoned mobilised violence, the group will
be put on the Watch List.
2. Once the group is placed on the Watch List it will be treated
differently under the eyes of the law, but still be allowed to
continue its lawful activities. This will be subject to its compliance
with a host of additional measures. These include:
• Submitting a security deposit to cover costs for past and
future damages caused by its members.
• Additional regulations for its public activities.
• Subjecting the leadership of the group to a combination of
strict and vicarious liability for any mobilised violence
committed by its members in the future.
The regulation of groups engaging in
mobilised violence is preferable to an
outright prohibition on their existence or
their membership. A new law should thus
not target individual members, but merely
the conduct of the groups themselves.
10|
1b.Civilliabilityforproperty
damage
The Prevention of Damage to Public Property Act, 1984 should be
amended to cover private property as well as provide for punitive and
exemplary damages. In addition, it must account for the following
features:
1. Such cases should be heard by a specialised court that is assisted by
a Claims Commission and accompanied by a separate
prosecutorial and investigative wing.
2. The liability should be jointly and severally borne by the
perpetrators as well as the group itself, including the leadership.
3. Victim compensation should not be contingent on the perpetrators’
ability to pay. The State should first, given its failure to stop the
violence, pay for the claims in a codified, non-ad hoc manner and
adjust it from the perpetrators.
4. Remove archaic laws providing collective liability of all inhabitants
of an area for damage caused by riots in that area.
There are many reasons to legislate on
increasing civil liability for property
damage caused by mobilised violence:
1. Currently, civil liability is either
limited under statutory law or weak
under tort law.
2. Victim compensation is extremely
limited.
3. There is no settled mechanism to
determine the value of the
compensation and how it is to be
distributed.
11|
1c.Criminalisedrillingand
armstraining
The provisions in the law currently require prosecution of militia
drilling and arms training to prove either that:
1. These activities were intended to be used against a specific
community and that that community felt a sense of fear as a result
(S. 153A of the IPC);
or
2. These activities were in contravention of an order by an executive
magistrate under S.144A of the Code of Criminal Procedure, 1973
(CrPC) (S.153AA of the IPC).
Instead:
1. There should be no requirement to prove the effective intimidation
of a specific community. All acts of militia drilling and arms
training should be made punishable.
2. Exceptions, if any, to this position should be narrowly construed,
such as, for sporting activities. The law should also require a
license for any organisation trying to conduct these activities.
Perpetrators of mobilised violence who are
part of a group have often learnt how to
actually commit violence from training
conducted by the group itself.
12|
1d.Targetleadersand
organisersofmobilised
violence
The Prevention of Damage to Public Property Act, 1984 should be
amended to:
1. Also assign liability to people who call for violent action that
results in the commission of an offence under the Act by an
unlawful assembly.
2. Hold the leaders of any organisation liable for the damage caused
by the actions of the organisation’s members.
These presumptions should be narrowly drawn out with sufficient
exemptions and with reduced penalties as it circumvents the basic
assumption of ‘innocent until proven guilty’.
People committing mobilised violence are
rarely the ones actually mobilising it. The
leaders and instigators of mobilised
violence tend to escape legal action either
because the law doesn’t target them
specifically or because it is not easy to
prove abetment.
13|
Approach2:Refininghate
speechprovisionsintheIPC
Approach 2 sets out the following changes:
1. Removal of harm to a group as a requirement under current hate
speech provisions and substituting it for incitement to violence.
This produces two benefits:
a) Narrows the scope by eliminating the vague standards that
currently exist, including that of hurting religious sentiments
and promoting enmity between groups; and
b) Extends the protection under the provisions to individuals
instead of focusing on specific groups.
2. Improving the deterrent effect of the change by ensuring that a
conviction under such laws will lead to an automatic
disqualification to run for elections. This is particularly important
since speech and expressions instigating violence can be used to
gain political capital.
Mobilised violence can be instigated
through the use of speech and expression.
Further, the political purpose that propels
mobilised violence can sometimes also be
achieved by simply using the threat of use
of force. While the IPC already has
provisions on hate speech that are meant to
address these situations, they are overly broad
and have a history of abuse.
14|
Increasinginstitutional
capacity
1. Creation of Mobilised Violence Observatories.
The lack of data on mobilised violence hinders the design and
implementation of any policy measures seeking to curb it.
Specialised Mobilised Violence Observatories will help address this.
2. Appointment of a Special Public Prosecutor.
Public prosecutors face significant hurdles to successfully and
effectively carry out their duties. These include executive
interference, the threat of dismissal, and lack of adequate
renumeration. A Special Public Prosecutor for mobilised violence
who functions directly under the aegis of the Advocate General and
outside the regular prosecutorial service will be beneficial.
3. Reducing executive interference in prosecutions.
Many instances of mobilised violence require executive sanction
under the CrPC. While this measure helps prevent frivolous and
vexatious litigation, it also presents a hurdle given the political
nature of mobilised violence. This sanction should instead be
provided by an independent body.
The reforms set out here are designed to
improve the capacity of State institutions
in combating mobilised violence. These
will complement the two primary
approaches discussed earlier by ensuring
their effective implementation.
15|
Conclusion Mobilised violence is inimical to the rule of law and imposes
significant costs on society. Further, the existing legal instruments are
inadequate to effectively counter mobilised violence and require
changes.
The changes discussed here call for a shift in the way mobilised
violence is traditionally approached, to widen the law’s gaze from the
individual perpetrators to the individuals and organisations fostering
and instigating the violence. Doing so would help law enforcement
agencies better target mobilised violence in the country.
16|
FurtherReading The recommendations set out in this document are part of the report
A Framework for Countering Mobilised Violence, published in
December 2018 by the Takshashila Institution and the Vidhi Centre for
Legal Policy. A copy of the report can be accessed here.

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A Framework to Counter Mobilised Violence

  • 1. A FRAMEWORK TO COUNTER MOBILISED VIOLENCE Madhav Chandavarkar*, Ajay Patri* & Divij Joshi# March 2019 * Researchers at the Takshashila Institution # Researcher at the Vidhi Centre for Legal Policy
  • 2. 2| ProposedSolutionsfor CounteringMobilised Violence The two primary recommendations for countering mobilised violence are set out below: 1. Creation of a law that targets groups engaging in mobilised violence and not just individual perpetrators of violence. 2. Refining the scope of hate speech under the IPC to focus on the incitement of violence. Mobilised violence can be better targeted by making a few specific changes to the legal instruments currently in place to counter such incidents.
  • 3. 3| Whyisalegalintervention necessary? The costs to society from an incident of mobilised violence include: 1. Loss of life; 2. Damage to property; 3. Cessation of economic activity; and 4. Damage to regional reputation that hinders future growth. Existing laws fall short because they: 1. Are overly broad or vague in their scope and application; 2. Have insufficient procedural safeguards to prevent abuse; and 3. Don’t target the leaders of groups committing mobilised violence nor do they effectively target the groups themselves. 1. Incidents of mobilised violence have massive costs to society. For example, the cost due to cessation of economic activity for one day in the India can be to the tune of INR 20,500 crore. 2. Existing laws against mobilised violence have significant weaknesses that compromise their enforcement.
  • 4. 4| Whatis‘mobilisedviolence’? In India, the popular term for such acts of violence is ‘mob violence’. But this term suggests that the violence is spontaneous and uncontrolled. The use of the term ‘mobilised violence’ conveys elements of premeditation and oversight involved in these acts of violence. Two features of ‘mobilised violence’: 1. The acts of violence are committed by persons who identify as being part of a group (whether such group has a permanent or temporary identity). 2. The violence is intended to achieve a political purpose, and is often accompanied by public rhetoric. Explanation - ‘Political purpose’ does not refer to party politics but refers to the aim of the group to influence the exercise of lawful rights and obligations by State authorities and private parties. This may relate to issues of linguistic identity, religion, regional sharing of resources, cultural practices, etc. “Acts of violence perpetrated by multiple people under the aegis of a group, where the purpose of the violence is to achieve an identified political objective”
  • 5. 5| Whatisnot‘mobilised violence’? There are many instances of violence committed by multiple people that do not qualify as mobilised violence. This may be either because they: 1. Are not committed by people who identify as being part of the same group; OR 2. Are not intended to achieve a political purpose. Mobilised Violence Not Mobilised Violence Violence committed by groups: 1. On the basis of religion, ethnicity, culture, language or other political ends, e.g. – agitation for a Gorkhaland State in West Bengal in 2017. 2. Against artists, including painters, writers, musicians, filmmakers, etc. in opposition to their work, e.g. – the protests against the movie Padmaavat. 3. Protesting against State actions, e.g. – fallout from the Supreme Court’s order on Cauvery water-sharing. Violence committed by: 1. Organised crime outfits, e.g. – the actions of the group led by the dacoit Veerappan, in the forest areas of Karnataka and Tamil Nadu. 2. Instruments of the State in the course of their official functions, e.g. – the violence against protestors of a copper smelting factory in Thoothukudi in 2018. 3. Individuals during spontaneous outbreaks of violence, e.g. – bar fights.
  • 6. 6| Whatshouldthelawtarget? These characteristics offer two approaches to counter mobilised violence: Approach 1. Structured Grouping  Assign liability to groups Members of a group often commit mobilised violence to further the group’s goals. While members of the group may get punished in the aftermath of an incident, the entire group often does not get punished despite having the resources and having provided the platform for individuals to engage in violence. Ensuring that the group also faces criminal liability will help deter them from being involved in mobilised violence. Approach 2. Expression instigating violence  Refine the provisions on hate speech in the Indian Penal Code, 1860 (IPC) While the very act of mobilised violence may be sufficient to convey its political purpose, it can also be accompanied by some expression. This may either be expression instigating the violence before the act, or an expression condoning the violence thereafter. There are two characteristics of ‘mobilised violence’ that must be considered while devising solutions: 1. The structured grouping of the perpetrators of such violence. 2. Any accompanying expression instigating the violence.
  • 7. 7| ApplicationFramework The following framework illustrates the usage of the two approaches. It has two main axes: one signifying the presence or absence of structured grouping, and the other the presence or absence of an expression instigating violence. Together, these give rise to four scenarios in which to apply the two approaches. Approach 1: Assigning Liability to Groups Approach 2: Refining the provisions on hate speech in the IPC Note that these approaches are not mutually exclusive. Expression instigating violence Absence of expression instigating violence Absence of structured grouping Structured grouping Rhetoric from individuals instigating mobilised violence Mobilised violence with rhetoric Mobilised violence without rhetoric Spontaneous riots Approach 2 Approach 1 Approach 1 + Approach 2 E.g. - Protests against the movie Padmaavat E.g. - Incidents of mob lynching E.g. - An incident of affray, i.e., fighting between two or more individuals that disturbs public peace E.g. – Baba Ramdev’s comments on the singing of the song Vande Mataram
  • 8. 8| Approach1:Assignliabilityto groups Approach 1 has four different recommendations: 1. Passage of a new law to regulate groups that repeatedly engage in mobilised violence. 2. Introduction of civil liability for groups for damage caused to property. 3. Criminalisation of drilling and arms training. 4. Targeting leaders and organisers of mobilised violence. The rationale for assigning liability to groups instead of individuals is as follows: 1. Groups often have more assets than the individuals. These can be used to pay compensation for any damage caused by the groups. 2. It is easier for law enforcement to focus on one entity than on its members in their individual capacity. 3. A group might enjoy perpetual existence detached from its members, allowing it the room to operate even if some of its members are incarcerated.
  • 9. 9| 1a.Passageofanewlaw 1. The law will rely on the mechanism of a Watch List. Once it is established that a certain number of members of a group have engaged in mobilised violence OR the group’s leaders have instigated or publicly condoned mobilised violence, the group will be put on the Watch List. 2. Once the group is placed on the Watch List it will be treated differently under the eyes of the law, but still be allowed to continue its lawful activities. This will be subject to its compliance with a host of additional measures. These include: • Submitting a security deposit to cover costs for past and future damages caused by its members. • Additional regulations for its public activities. • Subjecting the leadership of the group to a combination of strict and vicarious liability for any mobilised violence committed by its members in the future. The regulation of groups engaging in mobilised violence is preferable to an outright prohibition on their existence or their membership. A new law should thus not target individual members, but merely the conduct of the groups themselves.
  • 10. 10| 1b.Civilliabilityforproperty damage The Prevention of Damage to Public Property Act, 1984 should be amended to cover private property as well as provide for punitive and exemplary damages. In addition, it must account for the following features: 1. Such cases should be heard by a specialised court that is assisted by a Claims Commission and accompanied by a separate prosecutorial and investigative wing. 2. The liability should be jointly and severally borne by the perpetrators as well as the group itself, including the leadership. 3. Victim compensation should not be contingent on the perpetrators’ ability to pay. The State should first, given its failure to stop the violence, pay for the claims in a codified, non-ad hoc manner and adjust it from the perpetrators. 4. Remove archaic laws providing collective liability of all inhabitants of an area for damage caused by riots in that area. There are many reasons to legislate on increasing civil liability for property damage caused by mobilised violence: 1. Currently, civil liability is either limited under statutory law or weak under tort law. 2. Victim compensation is extremely limited. 3. There is no settled mechanism to determine the value of the compensation and how it is to be distributed.
  • 11. 11| 1c.Criminalisedrillingand armstraining The provisions in the law currently require prosecution of militia drilling and arms training to prove either that: 1. These activities were intended to be used against a specific community and that that community felt a sense of fear as a result (S. 153A of the IPC); or 2. These activities were in contravention of an order by an executive magistrate under S.144A of the Code of Criminal Procedure, 1973 (CrPC) (S.153AA of the IPC). Instead: 1. There should be no requirement to prove the effective intimidation of a specific community. All acts of militia drilling and arms training should be made punishable. 2. Exceptions, if any, to this position should be narrowly construed, such as, for sporting activities. The law should also require a license for any organisation trying to conduct these activities. Perpetrators of mobilised violence who are part of a group have often learnt how to actually commit violence from training conducted by the group itself.
  • 12. 12| 1d.Targetleadersand organisersofmobilised violence The Prevention of Damage to Public Property Act, 1984 should be amended to: 1. Also assign liability to people who call for violent action that results in the commission of an offence under the Act by an unlawful assembly. 2. Hold the leaders of any organisation liable for the damage caused by the actions of the organisation’s members. These presumptions should be narrowly drawn out with sufficient exemptions and with reduced penalties as it circumvents the basic assumption of ‘innocent until proven guilty’. People committing mobilised violence are rarely the ones actually mobilising it. The leaders and instigators of mobilised violence tend to escape legal action either because the law doesn’t target them specifically or because it is not easy to prove abetment.
  • 13. 13| Approach2:Refininghate speechprovisionsintheIPC Approach 2 sets out the following changes: 1. Removal of harm to a group as a requirement under current hate speech provisions and substituting it for incitement to violence. This produces two benefits: a) Narrows the scope by eliminating the vague standards that currently exist, including that of hurting religious sentiments and promoting enmity between groups; and b) Extends the protection under the provisions to individuals instead of focusing on specific groups. 2. Improving the deterrent effect of the change by ensuring that a conviction under such laws will lead to an automatic disqualification to run for elections. This is particularly important since speech and expressions instigating violence can be used to gain political capital. Mobilised violence can be instigated through the use of speech and expression. Further, the political purpose that propels mobilised violence can sometimes also be achieved by simply using the threat of use of force. While the IPC already has provisions on hate speech that are meant to address these situations, they are overly broad and have a history of abuse.
  • 14. 14| Increasinginstitutional capacity 1. Creation of Mobilised Violence Observatories. The lack of data on mobilised violence hinders the design and implementation of any policy measures seeking to curb it. Specialised Mobilised Violence Observatories will help address this. 2. Appointment of a Special Public Prosecutor. Public prosecutors face significant hurdles to successfully and effectively carry out their duties. These include executive interference, the threat of dismissal, and lack of adequate renumeration. A Special Public Prosecutor for mobilised violence who functions directly under the aegis of the Advocate General and outside the regular prosecutorial service will be beneficial. 3. Reducing executive interference in prosecutions. Many instances of mobilised violence require executive sanction under the CrPC. While this measure helps prevent frivolous and vexatious litigation, it also presents a hurdle given the political nature of mobilised violence. This sanction should instead be provided by an independent body. The reforms set out here are designed to improve the capacity of State institutions in combating mobilised violence. These will complement the two primary approaches discussed earlier by ensuring their effective implementation.
  • 15. 15| Conclusion Mobilised violence is inimical to the rule of law and imposes significant costs on society. Further, the existing legal instruments are inadequate to effectively counter mobilised violence and require changes. The changes discussed here call for a shift in the way mobilised violence is traditionally approached, to widen the law’s gaze from the individual perpetrators to the individuals and organisations fostering and instigating the violence. Doing so would help law enforcement agencies better target mobilised violence in the country.
  • 16. 16| FurtherReading The recommendations set out in this document are part of the report A Framework for Countering Mobilised Violence, published in December 2018 by the Takshashila Institution and the Vidhi Centre for Legal Policy. A copy of the report can be accessed here.