Author: Huzaif Maqsood Dar, Kashmir Law College
To the Point
For more than a century, killings carried out by mobs in India were prosecuted, when they were prosecuted at all, under the general provisions of murder and culpable homicide contained in the Indian Penal Code, 1860. The statute book carried no acknowledgment that a killing driven by collective prejudice against a person’s caste, religion, sex, or language differs in character and consequence from an individual act of violence arising out of personal enmity or a sudden quarrel. The Bharatiya Nyaya Sanhita, 2023, which came into force on 1 July 2024, has altered this position in a fundamental way. Section 103(2) of the BNS now treats murder committed by a group of five or more persons acting in concert, on grounds such as race, caste, community, sex, place of birth, language, personal belief, or any other similar ground, as a distinct and aggravated offence attracting punishment that may extend to death or imprisonment for life. This article examines the scope, rationale, and emerging judicial interpretation of this provision, and situates it within the constitutional guarantee of equality and the right to life that Indian criminal law is meant to protect.
Use of Legal Jargon
A reader engaging with this subject will come across certain recurring terms of art, explained briefly below for ease of reference.
• Mens rea. The guilty mind or mental element that the prosecution must establish before a person can be convicted of an offence; in murder, this ordinarily means the intention to cause death, or to cause an injury that the offender knows is likely to cause death.
• Actus reus. The physical act or unlawful conduct that constitutes an offence, as distinguished from the accompanying state of mind.
• Common intention. The principle contained in Section 3(5) of the BNS, formerly Section 34 of the IPC, under which every person who takes part in a criminal act carried out in furtherance of a plan shared by a group is held liable for the entire act as though that person had committed it alone.
• Constructive liability. Liability imposed on a person for an offence physically committed by another member of a group, on the basis of a common intention or shared design, rather than on the basis of that person’s individual act.
• Culpable homicide amounting to murder. The category into which an unlawful killing falls where the act is done with the intention of causing death, or with the intention of causing an injury that the offender knows is likely to cause death.
• Suo motu cognizance. Action that a court takes on its own motion, without any party having filed a formal petition seeking that action.
• Article 141 of the Constitution. The provision under which the law declared by the Supreme Court binds every court within the territory of India.
• Vigilantism. Conduct in which a self appointed group assumes law enforcement or punitive functions without legal sanction, often resulting in extrajudicial violence.
The Proof
The case for treating mob lynching as a distinct offence rests on both statutory text and documented institutional failure. Section 103(2) of the BNS provides that when a group of five or more persons, acting in concert, commits murder on the ground of race, caste, community, sex, place of birth, language, personal belief, or any other similar ground, every member of that group is to be punished with death or with imprisonment for life, in addition to a fine. A related provision, Section 117(4), addresses situations where a mob causes grievous hurt rather than death on the same discriminatory grounds, prescribing imprisonment that may extend to seven years along with a fine. Neither the Indian Penal Code, 1860, nor the Code of Criminal Procedure, 1973, contained an equivalent provision, which meant that for decades a lynching could be charged only as an ordinary murder, with the discriminatory and collective character of the killing playing no formal role in the definition of the offence itself.
The institutional gap this left behind is documented in the government’s own records. The National Crime Records Bureau attempted, for its 2017 Crime in India report, to introduce a new sub head specifically for deaths caused by mob lynching, alongside categories for murders linked to khap panchayats and religious motives. The Ministry of Home Affairs later informed Parliament that this data had in fact been collected but was found to be unreliable and was therefore never published, leaving India without any official statistical record of lynching incidents even as public reporting of such killings increased through the middle of the last decade. A reply given in the Rajya Sabha as recently as December 2022 confirmed that no separate data on mob lynching was maintained by the NCRB at all. It was against this backdrop of statistical invisibility, and the absence of a dedicated offence, that the Supreme Court in 2018 called upon Parliament to consider a specific law on the subject, a call that found partial fulfilment six years later in Section 103(2) of the BNS.
The difficulty of naming this offence with precision is not unique to India. In the United States, a federal law specifically designating lynching as a hate crime, the Emmett Till Antilynching Act, was signed only in March 2022, after roughly a century and around two hundred earlier legislative attempts had failed. The Indian experience, in which a clearly defined offence took shape within a few years of the Supreme Court’s intervention in Tehseen Poonawalla, compares favourably on this particular point, even though questions about effective enforcement remain open in both jurisdictions.
Abstract
This article studies Section 103(2) of the Bharatiya Nyaya Sanhita, 2023, the provision that for the first time gives Indian criminal law a named and distinct offence of mob lynching. It traces the legislative background of the provision to the Supreme Court’s 2018 judgment in Tehseen S. Poonawalla v. Union of India, which directed the Union and the States to adopt preventive, remedial, and punitive measures against mob violence and urged Parliament to enact a dedicated law. The article considers the elements of the offence, namely a group of five or more persons, common intention, and a discriminatory motive drawn from an enumerated or analogous ground, and contrasts this framework with the absence of any equivalent provision under the Indian Penal Code, 1860. It further examines recent judicial engagement with the provision, including the Kerala High Court’s 2026 ruling in the Walayar lynching matter, which held that an offence under Section 103(2) is graver than an ordinary murder for the purpose of bail. The article concludes that while the provision marks a meaningful doctrinal advance, its real value will depend on consistent investigation, fair trial safeguards, and continued judicial vigilance.
Case Laws
The foundational authority on this subject remains Tehseen S. Poonawalla v. Union of India, (2018) 9 SCC 501, decided by a bench headed by the then Chief Justice Dipak Misra on 17 July 2018. The petitions before the Court, filed by social activist Tehseen Poonawalla and others including a grandson of Mahatma Gandhi, arose out of a series of killings carried out by self appointed cow protection groups across several States. The Court held that no individual or group could be permitted to take the law into its own hands and pronounce another person guilty merely on suspicion, and that such conduct was wholly incompatible with a society governed by the rule of law. It issued a structured set of preventive, remedial, and punitive directions, requiring every district to appoint a senior police officer as a nodal officer for the prevention of mob violence, mandating that an FIR be registered without delay in every reported incident, and directing that compensation be assessed according to the nature of the injury suffered rather than the identity of the victim. Significantly, the Court also urged Parliament to consider creating a specific offence of lynching with commensurate punishment, a recommendation that found legislative expression six years later.
The directions given in Tehseen Poonawalla have continued to generate litigation testing the State’s compliance. In February 2025, the Supreme Court disposed of a public interest petition concerning cow vigilantism, observing that the directions issued in 2018 were already binding on every authority under Article 141 of the Constitution and that it was not practicable for the Court itself to monitor compliance across every State and Union Territory from Delhi. Two months later, in a separate proceeding tracing back to a petition filed in 2019 alleging continued non compliance, the Supreme Court directed the Union Government to file a status report addressing the implementation of Section 103(2) of the BNS, signalling that the judiciary regards the statutory provision and the original 2018 directions as parts of a single, continuing remedial framework. The Allahabad High Court took a similar approach later in 2025 while disposing of a petition filed by the Jamiat Ulema i Hind Public Trust concerning a lynching in Aligarh, holding that the Tehseen Poonawalla directives bind both the State and the Union, while declining to convert general compliance monitoring into a standing exercise of writ jurisdiction.
The most direct judicial engagement with the substance of Section 103(2) itself has come from the Kerala High Court in the Walayar lynching matter, State of Kerala v. Anu, decided in 2026. There, a migrant worker who had recently arrived in the State in search of work was attacked and killed by a group acting with common intention, and the accused were charged under Sections 103(1) and 103(2) of the BNS together with provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. A Special Judge had granted regular bail to eight of the accused after they had spent between 25 and 43 days in custody, reasoning that they had cooperated with the investigation. On appeal, the High Court cancelled that bail, holding that an offence under Section 103(2) carries a graver character than an ordinary murder precisely because it is committed by a discriminating collective rather than by an individual, and that this distinct gravity must inform the approach a court takes to bail.
A further illustration of how seriously courts are treating the precision of this new provision comes from the Jharkhand High Court, which took suo motu cognizance of a printing discrepancy in the official text of Section 103(2), where the words any other ground had been published in place of the words any other similar ground found in the enacted statute. Given that the provision carries a sentence of death or life imprisonment, the Court treated even this seemingly narrow textual variation as a matter warranting independent judicial attention, underscoring the broader principle that penal statutes attracting the most severe punishments must be applied strictly according to their precise enacted language.
Conclusion
Section 103(2) of the Bharatiya Nyaya Sanhita, 2023, closes a gap in Indian criminal law that the Indian Penal Code, 1860, left open for more than 150 years. By naming mob lynching as a distinct offence rather than treating it as an unremarkable variant of ordinary murder, the provision gives formal legal recognition to what the Supreme Court had already recognized as a fact in 2018, namely that a killing carried out by a prejudiced collective wounds the social fabric in a manner that an individual act of violence does not. The early judicial response, particularly the Kerala High Court’s treatment of the offence as graver than ordinary murder for purposes of bail, suggests that courts are prepared to give the provision real effect rather than allowing it to remain a dead letter.
Yet the legislative response remains incomplete in certain respects. The provision does not list religion among its enumerated grounds, relying instead on the residual phrase any other similar ground to cover such cases, and Parliament has still not enacted the comprehensive central law that the Supreme Court called for in Tehseen Poonawalla, leaving the field to be filled, unevenly, by individual State legislation and by Section 103(2) itself. The provision’s ultimate effectiveness will depend less on the text of the statute and more on the willingness of investigating agencies to register cases promptly, resist local pressure, and ensure that the discriminatory character of a killing is reflected accurately in the charge sheet from the very first day of investigation.
