PREFACE:

Imagine a little town where there’s a rumour running round that a stranger is a kidnapper. In an hour, he gets surrounded by 30 people, and he is beaten to death before the police arrive. If a man throws the first blow, and all the rest join him in beating, who is to blame when the beating is brought to court? If a man slays, and others join him to wound, is anyone to be responsible for the wounding when they come to court?

There’s no such thing as too many proofs. The word “child-lifter” or “cattle thief” moves quicker than any police van and by the time the facts are understood by security guards, a mob has already issued its own judgment, using fists, sticks and stones. The dead man has been an anonymous citizen, seen in stores and among neighbours and passers-by by the “mob”. So, who is on trial then?

INTRODUCTION:

Say a mob beat someone to death, perhaps based on his caste, religion, or some rumour; there was no dedicated law against what was called “mob lynching” until very recently. Police/courts had to resort to vague statutes such as murder, rioting or unlawful assembly, which were patched together.

The Bharatiya Nyaya Sanhita (BNS) is the newer law that has replaced the IPC in India, and was enforced from July 1, 2024. This is the first time that mob lynching is defined as a specific crime in Section 103(2)[1] of this new law.

What does the “actually” in Section 103(2) mean?

In simple words:

Five or more persons, acting together, kill someone because of his race, caste, community, sex, place of birth, language or similar reasons; each one of these persons can be punished with:

• Death, or
• Life imprisonment, or
• Conditions to possibly be imprisoned for 7 years or longer (an absolute minimum). Plus, a fine.

This is critical; it doesn’t matter whether it was someone who called the shot or the player who actually hit the final shot. Even if there was a group, and you were part of it, and you were acting in concert with them, you can be held as liable as if you actually killed the person.

The Bharatiya Nyaya Sanhita (BNS), 2023, which replaced the Indian Penal Code (IPC), 1860, with effect from July 1, 2024, introduced several substantive changes to India’s criminal law architecture. Among the most significant is the express criminalisation of mob lynching as a distinct offence under Section 103(2), read alongside the grievous-hurt variant in Section 117(4)[2]. For decades, actions involving murder by groups outside the protection of law – prompted by caste and communal prejudice, diehards or rumour-mongers involved in cattle crimes were to be prosecuted under a series of loosely drafted laws: murder under Section 302 IPC, common intention under Section 34[3], unlawful assembly and rioting under Sections 141–149[4] and, at times, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act[5]. This piecemeal approach often minimised responsibility, kept individual attackers free from liability since they could lay the blame at the door of the crowd, while not accounting for the aggravated and targeted nature of lynching, a type of social terrorism targeting identity groups.

Part of the motivation for enacting Section 103(2) BNS was the Supreme Court’s decision in Tahseen S. Poonawalla v. Union of India (2018)[6], which addressed Parliament’s need to consider a dedicated law on cow vigilantism and lynching. This article explains the statutory deletions of Section 103(2), the reasons for the increased penalties and, importantly, the evidentiary challenges being faced by both prosecution and defence attorneys and the courts involved in collective violence trials.

THE STATUTORY TEXT AND ITS PLACEMENT:

An all-new provision: a group of five persons or more who act in concert to commit murder ‘for’ reason based on ‘race’, ‘caste or community’, ‘sex’, ‘place of birth’, ‘personal belief’, or similar bases shall be punishable with death or imprisonment of seven years or more, or with fine.

The placement matters. The legislature’s placement of mob lynching in Section 103 (which defines punishment for murder) as opposed to under some other provision in the law was an expressive indication that mob lynching is an aggravated form of murder and not a lesser or parallel wrong. Section 103(2) borrows the substantive definition of murder from Section 101 and adds two additional factors: an element of minimum group size; and a discriminatory motive, which further increase the seriousness of the offence.

A suo motu case by the Jharkhand High Court that noted that some versions of the documents misread the phrase as “any other ground” instead of “any other similar ground”, and ordered the publisher to correct the typographical error, should be noted. The difference is important; the same thing applies with ejusdem generis, and race, caste, community, sex, place of birth, language and personal belief will limit the generality of ‘any other ground’ to ‘any other ground of mutual prejudice’, but if any other ground was left unqualified, it could extend the provision to mob killing based on financial disagreements. The correction adopts a bias-crime/identity rather than a multi-person attack clause as the intent behind Section 103(2).

STATUTORY ELEMENTS:

1. A group of five or more persons. This threshold is the same as that under Section 189 BNS[7] (successor of Section 141 IPC), which will exercise the power of unlawful assembly along with that of rioting, where there is no exact certainty about the members of the mob.
2. Acting in concert. This will demand co-ordinated action, which involves more than simple presence and is, rather, similar to the “common intention” doctrine in Section 3(5) BNS[8], and the “common object” doctrine in the law of unlawful assembly. For fatal violence to result from an act of “shared” or “joint” mentality, it needs to be a moment when they see in the same direction. The environment for bystanders or late-arriving respondents does not fit into this, but it has been difficult to make clear the boundary within a hectic and speedy event.
3. Commission of murder. There must be intent to kill, intent to cause bodily harm of sufficient nature in the ordinary course of events to cause death or knowledge of an act of this kind that is so imminently dangerous that in all probability death will supervene. If injuries do not reach this threshold, then the case may go to Section 117(4) BNS[9] (mob-inflicted grievous hurt on discriminatory grounds, max seven years).
4. Discriminatory ground. Note the phrases “on the grounds of. . .” and the baselessness of the murder. The statute is more akin to a hate statute; this is most distinguishing it from the normal case of five individuals jointly committing murder for, say, a problem over a property. It’s a departure and a challenge to treat motive as a statutory element as opposed to merely finding motive, which is the usual way of approaching murder cases.

ENHANCED PENALTIES AND THEIR RATIONALE:

Section 103(2) lays its own minimum limit on murder, having made it a punishment of death, life imprisonment or seven years, whereas ordinary murder has no statutory minimum limit other than an alternative of life or death.

The Kerala High Court, rejecting bail to eight accused involved in the mob-lynching of a migrant worker from Jharkhand in the Walayar case, noted that Section 103(2) was meant to be more serious than ordinary murder, saying that in this regard, it was a graduated punishment. The two policy rationales are that collective killing based on bias can do lasting, compound social damage: it scares an entire identity group, and it messages informal sanction from the community that ignoring a crime constitutes “justice. Second, individual responsibility for each person in the group, irrespective of whether it was they who made the fatal blow, resolves the historical evidentiary issue of a crowd of anonymous actors, and often leads to mass acquittals because no evidence could be reached that showed who inflicted the fatal injury.

This moves some of the focus of trials away from “who was the ringleader?” to instead questioning whether or not this accused was part of a “group/ring” that was conspiring as a group. This echoes an existing form of constructive liability in the realm of unlawful assembly law, with a newer one now linking the murder sentencing scale with the other.

EVIDENTIARY CHALLENGES IN COLLECTIVE VIOLENCE TRIALS:

1. Identification and individuation of accused. Lynchings usually happen in traffic-heavy areas such as markets, streets or housing lanes, in conditions where it is difficult to see, and it involves people under stress. Defining and attributing participation in a fluid crowd as opposed to observers, who either witnessed or appeared later, can be the trickiest problem. Test identification parades, call detail records analysis, and CCTV or bystander phone footage are becoming very important, as eyewitness testimony is prone to be vague in a mob situation, particularly when accused and witnesses live in the same community.
2. Proving “acting in concert.” The common object inference that has long been developed in cases of riots will remain relevant in the context of “acting in concert” but will apply in a murder type of offence, imposing death or life imprisonment, with the appropriate level of significance.
3. Proving discriminatory motive. The prosecution here faces the challenge of reconstructing bias in a manner that is meant to be presented to a jury, as opposed to typical murder cases, and must piece together inferential observations made of the attitude of the people who posted the slogans unquestionably (like we did in some cases), the targeting patterns, earlier local events, material available on social media, and the statements made during the attack (all of which asks a question of authentication and reliability). Even if the accused have clearly joined in a killing in a group, if the particular murder can’t be proved here beyond reasonable doubt, it may be proved by ordinary murder or the rioting provisions.
4. Interface with the SC/ST (Prevention of Atrocities) Act. The Atrocities Act also has its own protection principles, like the requirement for a notice to be issued to the victim when it comes to the bail phase (Section 15A (3))[10] of the case; many of the lynchings against Dalits or Adivasis also receive that protection. The Kerala High Court cancelled bail in Walayar where this requirement was not followed. Courts must cross-reference between regimes and differences in evidentiary and safeguard requirements.
5. Witness hostility. When lynching is accepted as part of community life, eyewitnesses rarely feel compelled to take the stand, particularly in rural areas, where everyone involved retains their social connections, especially during indictments of fellow community members in mob-violence trials, where a national scheme to protect witnesses is completely lacking.

RELEVANT CASE LAW:

Tahseen S. Poonawalla v. Union of India (2018)[11]:

In its judgment, a bench of three, then CJI Dipak Misra, Justice A.M. Khanwilkar and Justice D.Y. Chandrachud, declared mob violence and lynching unacceptable and detrimental to constitutional pluralism and tolerance and added that no person or group has the right to inflict punishment based on mere suspicion. The Court called for measures, both preventive (district nodal officers, patrolling) and remedial (victim compensation schemes) and punitive (fast-track courts, timelines for trials); and recommended a dedicated anti-lynching bill by Parliament. Compliance litigation does not seem to have come to an end since the implementation of Section 103(2), with the Union government contending that the new provision does answer to the Supreme Court’s concerns to an appreciable extent.

Walayar mob-lynching case (Kerala High Court)[12]:

One of the early important appellate decisions interpreting Section 103(2) in so far as interpretation of that section is concerned. Justice A. Badharudeen ruled that it would be a newly created, more serious form of murder and thus cancelled the bail on this substantive point as well as on the ground of failure to comply with the requirement of providing a notice to the victim as prescribed in the SC/ST Atrocities Act. The court reiterates that the increased sentence threshold in Section 103(2) was a purposeful inclusion of this by the legislature to give greater weight to the crime of lynching than an ordinary murder and must be taken into account in applying for bail at the outset.

CONCLUSION:

Section 103(2) BNS is a thought-out but largely untested attempt to specifically identify and condemn mob lynching as a wrong of its own sort. The underlying innovations of this bill — numerical requirement for unlawful assembly, concerted-action requirement, explicit requirement of a discriminatory-motive element, and maximum concentration of each individual — address a historic problem in assigning blame in a mob and the Supreme Court’s consistent demands for specific legislation since Tahseen Poonawalla. It is precisely these features that raise the most obvious challenges at the evidentiary level in the provision, including the challenge of marking out accused from background noise, proof of common design, and proof of bias at the criminal level, and the interpretation of such a concept within multiple systems of regulatory control such as the Atrocities Act. The Indian courts will have to build up some clear principles on “acting in concert” so that they can reach consistent and sound convictions based on the evidence, but also on “discriminatory ground”, and whether the provision does so. Walayar will be the first test case, which will be followed by others.

FREQUENTLY ASKED QUESTIONS:

1. Can I be convicted of being present at the scene of the crime, but never touching the victim?

Possibly. The law does not mandate that the accused actually strike the victim, simply that he or she was working towards the group’s goal to harm. One shouldn’t expect to draw liability for merely being present (when the attack happened, it was really started by someone else, for example), but it is determined by conduct, not just where a person was.

2. What if the mob kills someone and there is no evidence of a caste, religious, identity, or motive bias?

If so, Section 103(2) is unlikely to apply. The key element here is not a motivation for discrimination as background but a discrimination motive as a requirement of statute. If it was not, it would become a “pure” murder under Section 103(1) or other group liability offences such as unlawful assembly or rioting, which are also serious — albeit not with the same mandatory minimum sentence.

3. Is mob lynching a manifestation of religious or communal enmity?

No, that’s a common misconception. This could be interpreted as extending to other grounds such as religion, personal belief, or for any other “similar ground,” in addition to the other grounds listed in the law. Traditional lynching has little to do with religious bigotry since it can extend to not only mob killings based on religious proclivities, but also mob killings based on gender or caste, for that matter, which is not religious in origin.

4. What will happen if the victim survived the attack but was left severely injured?

Both sections 103(2) and 103(3) are only applicable with respect to “death. However, if violence from the mob results in grievous hurt, but the victim can survive, then the relevant section, (s) 117(4), BNS, applies and has a lesser maximum punishment of seven years (whereas death or life imprisonment could apply if grievous hurt; however, if the victim did not survive).

5. If ordinary murder has no minimum punishment, why does the law require a minimum punishment for its cousin, murder?

It was a deliberate law-making decision, and the Kerala High Court has upheld it in the Walayar case. Participants who suggest lowering the sentence from seven years to less than seven are indicating that mob lynching is an issue that requires an assured severe penalty — it is more than just an individual being killed; it sends a message of terror to a whole community with the victim’s surname.

6. Is it possible for 103(2) accused to get bail?

Although bail is not categorically denied, it is approached with all the more care by courts in the case of an enhanced minimum sentence being administered in a murder case. This is an apt reminder from the case of Walayar – the Kerala High Court granted bail to the accused in part because the trial court failed to note the gravity with which this offence was marked by the legislature, and in part for a different procedural violation under the SC/ST Atrocities Act.

7. Does it make any procedural difference when the victim is a Scheduled tribe/ Scheduled caste?

Yes, significantly. The SC/ST (Prevention of Atrocities) Act is also invariably invoked in such cases, and the provisions of this Act have their own safeguards; for instance, in the granting of bail to the accused before any victim/dependant of SC/ST by application under the CrPC, 1971, section 15A (3), such persons are to be given notice and hearing. As in Walayar, it may be enough to cause the cancellation of bail itself to overlook this step.

8. Can this law only be applied to those killed by strangers, or can it be applied to family members, close friends, neighbours, etc?

No, the relationship between mob and victim does not matter: It’s not about strangers, but about group size, concerted action and discriminatory motive. In principle, if all four statutory ingredients of a mob attack are present, one motivated by a community-approved “honour crime” based on caste or belief could be included within this ambience.

[1] Bharatiya Nyaya Sanhita, 2023, § 103(2).

[2] Bharatiya Nyaya Sanhita, 2023, § 117(4)

[3] Indian Penal Code, § 34 (1860).

[4] Indian Penal Code §§ 141–149 (1860)

[5] The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, No. 33 of 1989.

[6] Tahseen S. Poonawalla v. Union of India AIR 2018 SC 3354.

[7] Bharatiya Nyaya Sanhita, 2023, § 189.

[8] Bharatiya Nyaya Sanhita, 2023, § 3(5)

[9] Bharatiya Nyaya Sanhita, 2023, § 117(4)

[10] Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, § 15A (3) (1989).

[11] Tahseen S. Poonawalla v. Union of India AIR 2018 SC 3354.

[12] State of Kerala v. Anu (2026: KER:24661, Crl. A. No. 258 of 2026)