Tehseen S. Poonawalla v. Union of India and Others
DIPAK MISRA, CJI 1. Law, enacted for the benefit of the
society by conferring rights on the citizens and to regulate social behaviour
in many a sphere, is required to be implemented by the law enforcing
agencies and the citizens are duty bound to follow the law treating it as
sacred. Law has to be regarded as the foundation of a civilized society.
The primary goal of law is to have an orderly society where the citizenry
dreams for change and progress is realized and the individual aspiration
finds space for expression of his/her potential. In such an a tmosphere
while every citizen is entitled to enjoy the rights and interest bestowed
under the constitutional and statutory law, he is also obligated to remain
obeisant to the command of law. It has been stated in Krishnamoorthy
v. Sivakumar and others 1, “the law, the mightiest sovereign in a civilized
society”. The majesty of law cannot be sullied simply because an individual
or a group generate the attitude that they have been empowered by the
principles set out in law to take its enforcement into their own hands and
gradually become law unto themselves and punish the violator on their
own assumption and in the manner in which they deem fit. They forget
that the administration of law is conferred on the law enforcing agencies
and no one is allowed to take law into his own hands on the fancy of his
“shallow spirit of judgment”. Just as one is entitled to fight for his rights
in law, the other is entitled to be treated as innocent till he is found guilty
after a fair trial. No act of a citizen is to be adjudge d by any kind of
community under the guise of protectors of law. It is the seminal
requirement of law that an accused is booked under law and is dealt
with in accordance with the procedure without any obstruction so that
substantive justice is done. No individual in his own capacity or as a part
of a group, which within no time assumes the character of a mob, can
take law into his/their hands and deal with a person treati ng him as
guilty. That is not only contrary to the paradigm of establi shed legal
principles in our legal system but also inconceivable in a civilized society
that respects the fundamental tenets of the rule of law. And, needless to
say, such ideas and conceptions not only create a dent in the majesty of
law but are also absolutely obnoxious.
2. It is worthy to note that the reliefs sought in all the writ petitions
have commonality, although the expression of language as well as the
width of the prayer is slightly different. What really emanat es as the
1(2015) 3 SCC 467
305
pivotal issue requiring our contemplated consideration is the duty of this
Court under the constitutional framework to deal wit h the primary
grievance that pertains to cow vigilantism and other incidents of
lynching or, if we may say so, targeted violence and commissi on of
offences affecting the human body and against private and public
property by mobs under the garb of self-assumed and self-ap pointed
protectors of law.
3. We shall state the facts in brief, for there are ass everations
with regard to numerous incidents of lynching and mob violence which
need not be specifically stated since we are going to iss ue certain
directions covering the arena of preventive, remedial an d punitive
measures. We shall note the suggestions given by Mr. Sanjay R. Hegde,
learned senior counsel in one of the writ petitions. We may further state
that we shall refer to the facts in Writ Petition (Civil) No. 754 of 2016.
4. The petitioner, a social activist, has preferred this writ petition
under Article 32 of the Constitution for commanding the respond ent-
State Nos. 3 to 8 to take immediate and necessary action aga inst the
cow protection groups indulging in violence; and further to issue a writ
or direction to remove the violent contents from the social media
uploaded and hosted by the said groups. There is also a prayer to
declare Section 12 of the Gujarat Animal Prevention Act, 1954, Section
13 of the Maharashtra Animal Prevention Act, 1976 and Section 15 of
the Karnataka Prevention of Cow Slaughter and Cattle Preser vation
Act, 1964 as unconstitutional. Certain incidents have also been narrated
in the Writ Petition.
5. When the matter was taken up alongwith other matters on
21 st July, 2017, the Court, while not dealing with the third prayer,
that is, for declaring certain provisions of the statutes mentioned
hereinabove as unconstitutional, proceeded to state thus:-
“As far as the first prayer is concerned, on being ask ed, it is
submitted by Mr. Ranjit Kumar, learned Solicitor Ge neral
appearing for the Union of India that the controversy relates t o
the States, law and order being a State subject. He further
submits that the Union of India does not support the activities of
the vigilantes.
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
Ms. Hemantika Wahi, learned Standing Counsel for the State of
Gujarat echoing the aforesaid submission contends that certain
persons who were engaged in this kind of activity, especially the
incident that has been referred to in the writ petition, have b een
booked for relevant offences and appropriate police action is taken
against them. Mr. Tapesh Kumar Singh, learned counsel for the
State of Jharkhand submits that appropriate legal action has been
taken and the criminal cases have been instituted agains t the
persons who have taken law unto their hands.
At this juncture, it is submitted by Mr. Sanjay R. Hegde, learned
senior counsel appearing for the petitioner that the Union of India
and the State Governments should file their respective affidavits.
Mr. Ranjit Kumar, learned Solicitor General and the other learned
counsel appearing for the States pray for four weeks’ time to file
counter affidavit. Needless to say, the counter affidavit shall also
refer to the incidents, if any, referred to in the writ petitions.
As far as the prayer No.2 is concerned, Mr. Ranjit Kumar, learned
Solicitor General and the learned counsel appearing for the
various States shall assist the Court as to how the activities of the
vigilantes can be absolutely curtailed and suggest ways and
methods to work out the same.”
6. Be it noted, when Writ Petition (Civil) No. 732 of 2017 was
listed along with the main writ petition, i.e., Writ Petition (Civil) No. 754
of 2016, on 6 th September, 2017, the Court, while issuing notice, noted
the statement made by the learned Solicitor General on the previous
occasion and, thereafter, noted the submissions advanced by Ms. Indira
Jaising, learned senior counsel appearing for the petitioner and Mr. Tushar
Mehta, learned Additional Solicitor General appearing for the Union of
India. We think it appropriate to reproduce the said order as it contains
certain interim directions:-
“After referring to the same, it is urged by her that the law and
order enforcing agencies of the States have great responsibi lity
not only to register the First Information Report (FIR) afte r the
incident takes place but also see to it that groups or a class of
people do not take the law into their hands and ind ulge in
vigilantism. Additionally, it is her submission that under Article
256 of the Constitution of India, it is the obligation of the Central
307
Government to issue directions to the States so that the conc ept
of cooperative federalism is sustained and remains stable.
Mr. Tushar Mehta, learned Additional Solicitor General appearing
for the Union of India shall take instructions with regard to the
role of the Union of India.
When we are going to pass an ad interim order, Mr. Tushar Mehta,
learned Additional Solicitor General appearing for the States of
Haryana, Gujarat, Maharashtra and Rajasthan submitted that these
States will nominate a senior police officer of the Police
Department as the Nodal Officer in each District, wh o shall
ensure that these vigilantes do not take law unto themselves or
behave in a manner that they are the law in themselves. If any
kind of deviancy takes place, the said Nodal Officer shal l take
action and such vigilantes are booked in accordance with law
with quite promptitude.
An issue has been raised by Ms. Indira Jaising, learned se nior
counsel with regard to patrolling on the highways so that s uch
crimes are stopped. Mr. Tushar Mehta, appearing for the State s
of Gujarat, Haryana, Maharashtra and Rajasthan 4 shall obtain
instructions in this regard and also apprise what steps have been
taken by the said four States. As far as Highway patr olling is
concerned, the Chief Secretary of each State, in consultation with
the Director General of Police shall take steps and file affidavits
by the next date of hearing.
As far as the other States are concerned, it is directed that each
of them shall nominate a senior Police Officer qua each District
as Nodal Officer, who shall see to it that these vigilante s do not
take law unto themselves and the deviants in law are booked
quite promptly.
A copy of the order be sent to the Chief Secretary of all the
States.”
7. On 22 nd September, 2017, when the matter was listed, it was
noted that the States of Uttar Pradesh, Karnataka, Jharkhand, Gujarat
and Rajasthan had filed the compliance affidavit and an undert aking
was given on behalf of the State of Bihar to file t he affidavit of
compliance in the course of the day.
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
8. In pursuance of our order, the State of Uttar Pradesh has filed
an affidavit annexing a communication sent by the S ecretary,
Department of Home (Police) to Senior Superintendents of Poli ce/All
Superintendents of Police of all the districts in Uttar Pradesh. We think
it appropriate to refer to the relevant paragraphs of the said
communication:-
“I have been directed to say that while ensuring the complia nce
of the aforesaid orders of the Hon’ble Supreme Court of India, an
effective control must be maintained over the Criminal Activities
of the Vigilantes. Besides it the Designated Nodal Officer of each
district shall take effective and prompt measures to curve the
Criminal Activities of such Vigilantes. It must be ensur ed that
such antisocial elements are not permitted to involve themselves
in any of such criminal activities.
3. In the monthly crime meetings, this issue must be included as
one of the issue to be closely monitored. It must be regularly
reviewed. Besides it, the Local Intelligence Unit must be
deputed to identify such Vigilante and an strict watch be ma in-
tained on their activities.
4. It is further directed that while patrolling on the National
Highways and other roads, the Local Police and dial 100 b e
directed to ensure that no Vigilante takes over Law and Order in
its hands and commits a Criminal Act. Prompt enquiries be made
against the unlawful activities of such antisocial element s and
necessary legal action be taken against them throug h the
designated Nodal Officers posed in their Districts. In cas e any
such incidents comes to the notice of the local Police or dial 100
during the patrolling, the same may be brought to the Notice of
the Nodal Officer immediately. Thereafter further legal action
may be ensured promptly by such designated Nodal Officers.
5. It is therefore directed that the aforesaid process is regularly
adopted, reviewed and monitored from time to time and the
details if any be forwarded to the Director General of Police U.P.
Lucknow, who shall also designate a Nodal Officer out of the
Officers posted at the Police Headquarters. This matter must be
reviewed regularly in each of the monthly meetings and th e
necessary details after reviewing the situation be made available
to the State Government latest by 10 th of the each Month.”
309
9. An affidavit has been filed on behalf of the State of Gujara t
annexing orders dated 07.09.2017 and 11.09.2017 pas sed by the
Director General cum Inspector General of Police, Gujarat State and by
the Inspector General of Police, State Traffic Branch. Th e first order
reads thus:-
“The volunteers of the organizations associated wit h cow
protection or compassion for animals as well as other citi zens
have no right to take law into their own hands to resort to violence
or other illegal acts, either collectively or individually, tar geted
against the individuals undertaking transportation of animals or
carrying on the trade in animals/meat, under the guise of cow
protection, the protection of the cow progeny or in the name of
compassion for animals. With a view to effectively curb such
illegal activities, the Hon’ble Supreme Court has directed vide the
Order in question to nominate a senior Police Officer qua e ach
district as the Nodal Officer. The Nodal Officer to be so
nominated shall be required to make effective arrangements i n
his jurisdiction, especially on the highways, to obviate illegal acts
and violence in the name of cow protection or compassion for
animals. If some incidents does take place even after tak ing all
precautions, the Nodal Officer shall have to ensure that promp t
and effective legal action is initiated against the vigilantes involved
in the incident. To achieve these objectives, the following officers
are hereby nominated as the Nodal Officers in the P olice
Commissionerates and Police Districts in the State of Gujarat.
Area Nodal Officer
Police
Commissionerate
Concerned
Commissioner of
Police
Police District Concerned
Superintendent of
Police
Jurisdiction of
Western Railway,
Ahmedabad/Vadodra
Concerned
Superintendent of
Police, Western
Railway
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
2. With a view to ensure effective legal proceedings in all offences
that may get registered in connection with the illegal ac tivities
under consideration, the Director General of Police, CID (Crime
and Railways), Gujarat State, Gandhinagar shall und ertake
quarterly review of all such cases.”
10. A communication has been sent by the Inspector General of
Police, State Traffic Branch from the office of the Director General to
all the Police Commissioners, Range Heads and Police Superintendents
(including Western Railway, Ahmedabad). The relevant part of the said
communication reads thus:-
“While such incidents take place in certain specific places,
specific roads and particular areas, such spots on National
Highway, State Highway and other roads be identified and mapped.
Further, as is known, there is a specific pattern of violent
incidents taking place and such workers have their camp s at
particular time, particular spots and they intercept vehicles at
certain specific places. Therefore, such time slots and venues be
identified within area of your jurisdiction as also specific modus
operandi being followed by the persons involved in transportation
of cows be studied further and all police officers/personnel should
be briefed about the routes, time, vehicles and met hods of
packing in vehicles used by such persons and instruct them to
keep vigil watch on them.
3. After surveying the area, secret watch be deployed at the
sensitive spots (vulnerability mapping) so identifi ed and
considering the modus operandi of transporters of Gauvansh and
the practices of Cow Protectors. Further, arrangeme nts for
intensive patrolling be made and thus prevent happening such
violent incidents.
4. Considering sensitivity and gravity of violent assault s on
traders engaged in transportation of animals/meat, it should b e
ensured that no so-called workers or organizations must interfere
in functioning of police in such cases, that no private persons should
take law in their hands and make arrangements for spreadin g
awareness among all concerned persons to prevent occurrence
of such incidents.
311
5. It shall be ensured that all the statutes concerning co ws and
animals be followed by Police Department. Verificat ion of
legality or otherwise of transportation of animals/ meat is
authority of police department only. However, due to interference
in this by individuals or organizations other than police lead to
situation of conflicts and law and order issues, occurrence of
violent incidents hence all possible efforts may be made to
prevent the same and whenever any such incident takes plac e,
legal procedures be initiated immediately and effective action be
taken by tracing all the accused involved within further delay.”
It is noticeable that Nodal Officers have been nominated. There
are affidavits filed by the other States indicating how com pliance has
been carried out.
11. Mr. Sanjay R. Hegde, learned senior counsel appearing for
the petitioner in Writ Petition (Civil) No. 754 of 2016, while
substantiating the assertions made in the writ petition, submitted that no
individual or vigilante group can engage himself/thems elves in an
activity of lynching solely on the basis of a perception that a crime has
been committed. That apart, submits Mr. Hegde, the supremacy of law
has to be recognized and if a law prescribes a punishment for a crime, it
has the mechanism provided under the law to do so. The proce dural
and the substantial safeguards are required to be followed. I t is urged
by Mr. Hegde, with all the emphasis at his command, that lynching or
any kind of mob violence has to be curbed and crippled by the executive
and no excuse can ever be tolerated. Stress is laid o n prevention,
remedial and punitive measures. In this regard, he has placed reliance
on a recent judgment rendered in Shakti Vahini v. Union of India &
others 2.
12. At this juncture, we may enumerate the submissions advanced
by Ms. Indira Jaisingh, learned senior counsel for the petitioner in Writ
Petition (Civil) No. 732 of 2017. She has referred to Martin Luther King
Jr. wherein he had said that law may not be able to make a man love
him, but it can keep the man from lynching him. She submits that there
has been a constant increase in the number of incidents in recent years
as a consequence of which citizens belonging to minority communities
have become victims of targeted violence which mainly origi nate on
2 2018 (5) SCALE 51
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
suspicion and at times misinformation that the victims were involved in
illegal cattle trade and such other activities. Learned senior counsel has
also referred to certain specific incidents of lynching. It is additionally
argued by her that the Central Government be directed to intervene in
exercise of the power conferred under Articles 256 and 257 of the
Constitution to issue directions to the State Governments.
13. It is urged by her that in the recent past, self proclaimed and
self-styled vigilantes have brazenly taken law into themselves and have
targeted citizens belonging to certain communities and lower str ata of
the society which cannot be tolerated and it is the obligation of the Union
and the States to take immediate action warranted in law to stop such
activities. She has further submitted that there have been many an incident
of lynching mostly by vigilante groups across the States of Maharashtra,
Gujarat, Rajasthan, Uttar Pradesh, Haryana, Karnataka, Madhya Pradesh,
Jammu and Kashmir and Delhi. It is her stringent stand that actio n is
required to be taken against the perpetrators when approached by the
family members of the victim.
14. She has canvassed that it is the foremost duty of the Central
and the State Governments to ensure that the members of the minorities
are not targeted by mob violence and vigilante groups and if the illegal
actions of these lynchers are not totally curbed, there would be absolute
chaos where any private individual can take law into his own hands for
the enforcement of criminal law in accordance with his own judgment.
15. At the very inception, while delving into the ri valised
submissions advanced at the Bar, it is necessary to underst and that a
controversy of the present nature deserves to be ad dressed with
enormous sensitivity. We had issued certain directions as an inte rim
measure and there has been some compliance but we a re of the
considered opinion that the situations that have em erged and the
problems that have arisen need to be totally curbed. The States have the
onerous duty to see that no individual or any core group take law into
their own hands. Every citizen has the right to intimate the police about
the infraction of law. As stated earlier, an accuse d booked for an
offence is entitled to fair and speedy trial under the constit utional and
statutory scheme and, thereafter, he may be convicted or acq uitted as
per the adjudication by the judiciary on the basis of the evidence brought
313
on record and the application of legal principles. There cannot be an
investigation, trial and punishment of any nature on the stre ets. The
process of adjudication takes place within the hallowed precincts of the
courts of justice and not on the streets. No one has the right to become
the guardian of law claiming that he has to protect the law by any means.
It is the duty of the States, as has been stated in Nandini Sundar and
others v. State of Chhattisgarh 3, to strive, incessantly and consistently,
to promote fraternity amongst all citizens so that the dignit y of every
citizen is protected, nourished and promoted. That apa rt, it is the
responsibility of the States to prevent untoward incidents and to prevent
crime.
16. In Mohd. Haroon and others v. Union of India and
another 4, it has been clearly held that it is the responsibility of the State
Administration in association with the intelligence agencies of both the
State and the Centre to prevent recurrence of communal violence in any
part of the State. If any officer responsible for maint aining law and
order is found negligent, he/she should be brought within the ambit of
law. In this context, reference to the authority in Archbishop Raphael
Cheenath S.V.D. v. State of Orissa and another 5 would be useful. In
the said case, while dealing with the issue of communa l violence, the
Court observed that the State Government shall do well to enquire into
and find the causes for such communal unrest and strengthen the fabric
of the society. It further stated that strengthenin g of police
infrastructure in the district would undoubtedly help in curbing any
recurrence of such communal violence. Emphasis was also laid on
simultaneous peace-building measures.
17. There can be no shadow of doubt that the authorities which
are conferred with the responsibility to maintain law and or der in the
States have the principal obligation to see that vigilant ism, be it cow
vigilantism or any other vigilantism of any perception, does not take place.
When any core group with some kind of idea take the law into their own
hands, it ushers in anarchy, chaos, disorder and, eventually, there is an
emergence of a violent society. Vigilantism cannot, by any stretch of
imagination, be given room to take shape, for it is absolutely a perverse
notion. We may note here that certain applications for intervention and
written notes have been filed in this regard supporting the same on the
3 (2011) 7 SCC 547
4 (2014) 5 SCC 252
5 (2016) 9 SCC 682
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
basis that there is cattle smuggling and cruel treatment to animals. In
this context, suffice it to say that it is the law enforcing agencies which
have to survey, prevent and prosecute. No one has the authority to enter
into the said field and harbour the feeling that he is the law and the
punisher himself. A country where the rule of law prevail s does not
allow any such thought. It, in fact, commands for ostracisation of such
thoughts with immediacy.
18. Lynching is an affront to the rule of law and to the exalted
values of the Constitution itself. We may say witho ut any fear of
contradiction that lynching by unruly mobs and barbaric violence arising
out of incitement and instigation cannot be allowed to become the order
of the day. Such vigilantism, be it for whatever purpose or borne out of
whatever cause, has the effect of undermining the l egal and
formal institutions of the State and altering the constitutional order. These
extrajudicial attempts under the guise of protection of the law have to be
nipped in the bud; lest it would lead to rise of anarchy and lawlessness
which would plague and corrode the nation like an epidemi c. The
tumultuous dark clouds of vigilantism have the effect of shrouding the
glorious ways of democracy and justice leading to tragic breakdown of
the law and transgressing all forms of civility and humanity. Unless these
incidents are controlled, the day is not far when such monstrosity in the
name of self-professed morality is likely to assume the shape of a huge
cataclysm. It is in direct violation of the quintessential spirit of the rule of
law and of the exalted faiths of tolerance and humanity.
19. Mob vigilantism and mob violence have to be prevented by
the governments by taking strict action and by the vigil socie ty who
ought to report such incidents to the state machinery and the p olice
instead of taking the law into their own hands. Rising intol erance and
growing polarisation expressed through spate of incidents of mob violence
cannot be permitted to become the normal way of life or the normal
state of law and order in the country. Good governance and nation building
require sustenance of law and order which is intricately li nked to the
preservation of the marrows of our social structure. In such a situation,
the State has a sacrosanct duty to protect its citizens from unruly elements
and perpetrators of orchestrated lynching and vigilantism wi th utmost
sincerity and true commitment to address and curb such incidents which
must reflect in its actions and schemes.
315
20. Hate crimes as a product of intolerance, ideological dominance
and prejudice ought not to be tolerated; lest it results in a reign of terror.
Extra judicial elements and non-State actors cannot be allowed to take
the place of law or the law enforcing agency. A fabricated identity with
bigoted approach sans acceptance of plurality and diversit y results in
provocative sentiments and display of reactionary retribu tive attitude
transforming itself into dehumanisation of human be ings. Such an
atmosphere is one in which rational debate, logical discussion and sound
administration of law eludes thereby manifesting clear danger to various
freedoms including freedom of speech and expression. One man’s
freedom of thought, action, speech, expression, belief, conscience and
personal choices is not being tolerated by the other and this is due to lack
of objective rationalisation of acts and situations. In this regar d, it has
been aptly said:-
“Freedom of speech is a principal pillar of a free go vernment;
When this support is taken away, the constitution of a free society
is dissolved and tyranny is erected on its ruins.” 6
21. Freedom of speech and expression in different forms is the
élan vital of sustenance of all other rights and is the v ery seed for
germinating the growth of democratic views. Plurality of voices celebrates
the constitutionalist idea of a liberal democracy and ought not to be
suppressed. That is the idea and essence of our nation which cannot be,
to borrow a line from Rabindranath Tagore, “broken up into fragments
by narrow domestic walls” of caste, creed, race, cla ss or religion.
Pluralism and tolerance are essential virtues and constitute the building
blocks of a truly free and democratic society. It must be emphatically
stated that a dynamic contemporary constitutional democracy imbibes
the essential feature of accommodating pluralism in thought and approach
so as to preserve cohesiveness and unity. Intolerance arisin g out of a
dogmatic mindset sows the seeds of upheaval and has a chilling effect
on freedom of thought and expression. Hence, tolerance has to be fostered
and practised and not allowed to be diluted in any manner.
22. In S. Rangarajan v. P. Jagjivan Ram and others 7,
K. Jagannatha Shetty, J., although in a different context, referred to the
decision of the European Court of Human Rights in Handyside v. United
6 Benjamin Franklin, On Freedom of Speech and the Pr ess, from the Pennsylvania
Gazette, November, 1737
7 (1989) 2 SCC 574
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
Kingdom 8 wherein it has been held thus in the context of Article 10 of
the European Convention on Human Rights (ECHR):-
“The court’s supervisory functions oblige it to pay the utmos t
attention to the principles characterizing a ‘democratic society’.
Freedom of expression constitutes one of the essential foundations
of such a society, one of the basic conditions for its progress and
for the development of every man. Subject to Article 10(2), it is
applicable not only to ‘information’ or ‘ideas’ that are favourably
received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb the State or any
sector of the population. Such are the demands of that pluralism,
tolerance and broadmindedness without which there i s no
‘democratic society’.”
23. In a rights based approach to constitutional legitimacy , the
right to life and liberty is considered paramount and, therefore, democratic
governments must propel and drive towards stronger foothold for liberties
so as to ensure sustenance of higher values of democracy thereby paving
the path for a spontaneous constitutional order. Crime knows no religion
and neither the perpetrator nor the victim can be viewed thr ough the
lens of race, caste, class or religion. The State has a positive obligation
to protect the fundamental rights and freedoms of a ll individuals
irrespective of race, caste, class or religion. The State has the primary
responsibility to foster a secular, pluralistic and multi-culturalistic social
order so as to allow free play of ideas and beliefs and co-existence of
mutually contradictory perspectives. Stifling free voices can never bode
well for a true democracy. It is essential to build societies which embrace
diversity in all spheres and rebuild trust of the citizenr y in the State
machinery.
24. Lynching and mob violence are creeping threats that may
gradually take the shape of a Typhon-like monster as evidenced in the
wake of the rising wave of incidents of recurring patterns by frenzied
mobs across the country instigated by intolerance and misinformed by
circulation of fake news and false stories. There has been an unfortunate
litany of spiralling mob violence and agonized horror presenting a grim
and gruesome picture that compels us to reflect whether t he populace
of a great Republic like ours has lost the values of tolerance to sustain a
diverse culture. Besides, bystander apathy, numbness of the mute
81976 EHRR 737, at p. 754
317
spectators of the scene of the crime, inertia of th e law enforcing
machinery to prevent such crimes and nip them in th e bud and
grandstanding of the incident by the perpetrators of the crimes including
in the social media aggravates the entire problem. One must constantly
remind oneself that an attitude of morbid intolerance is absolutely
intolerable and agonizingly painful.
25. Lynching, at one point of time, was so rampant in the United
States that Mark Twain had observed in his inimitable style that it had
become “the United States of Lyncherdom”. The sarcasm is apparent.
26. In the obtaining situation, the need to preserve and maintain
unity amongst the fellow citizens of our country, who represent different
castes, creed and races, follow different religions and us e multiple
languages, ought to be discussed and accentuated. It is requisite to state
that our country must sustain, exalt and celebrate the feeling of solidarity
and harmony so that the spirit of oneness is entrenched in the collective
character. Sans such harmony and understanding, we may unwittingly
pave the path of disaster.
27. In St. Stephen’s College v. University of Delhi 9, while
emphasizing on the significance of ‘Unity in Diversity’, the Court has
observed that the aim of our Constitution is unity in diversit y and to
impede any fissiparous tendencies for enriching the unity amongst Indians
by assimilating the diversities. The meaning of diversity in its connotative
expanse of the term would include geographical, religious, linguistic, racial
and cultural differences. It is absolutely necessary to un derscore that
India represents a social, religious and cultural diversity.
28. ‘Unity’ in the context of a nation means unity amongst the
fellow citizens. It implies integration of the citizens whereby the citizens
embrace a feeling of ‘We’ with a sense of bonding with fellow citizens
which would definitely go a long way in holding the Indian soci ety
together. Emile Durkheim, French sociologist, has said that when unity
is based on heterogeneity and diversity, it can very well be described as
organic solidarity. Durkheim’s view would be acceptable in the context
of the Indian society as it exhibits a completely organic social solidarity.
29. The Court in Sri Adi Visheshwara of Kashi Vishwanath
Temple, Varanasi and others v. State of U.P. and ot hers 10 . has
9 (1992) 1 SCC 558
10 (1997) 4 SCC 606
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
highlighted that religious tolerance is an important fa cet of ‘Unity in
Diversity’ and observed thus:-
“Unity in diversity is the Indian culture and ethos. The tolerance
of all religious faiths, respect for each other’s religion ar e our
ethos. These pave the way and foundation for integration and
national unity and foster respect for each others religion; religious
faith and belief. Integration of Bharat is, thus, its arch.”
[Emphasis supplied]
30. In State of Karnataka and another v. Dr. Praveen Bhai
Thogadia 11 , stress has been laid on ‘Unity in Diversity’ treating it as the
ideal way of life considering that our nation is a unificati on of people
coming from diverse cultures, religions and races. The Court fur ther
went on to say that our nation has the world’s most heterogeneous society
having a rich heritage where the Constitution is committed to the high
ideas of socialism, secularism and the integrity of the nation and problems,
if any, that arise on the path of the nation’s progress are mostly solved
on the basis of human approaches and harmonious reconciliation of
differences. The following observations made by the Cou rt in the
aforesaid case with regard to the need to preserve the uni fied social
fabric are also important:-
“It is, therefore, imperative that if any individual or group of persons,
by their action or caustic and inflammatory speech are bent upon
sowing seed of mutual hatred, and their proposed activities a re
likely to create disharmony and disturb equilibrium, sacrifi cing
public peace and tranquility, strong action, and more so preventive
actions are essentially and vitally needed to be taken. Any speech
or action which would result in ostracization of communal harmony
would destroy all those high values which the Constitution aims
at. Welfare of the people is the ultimate goal of all laws, and State
action and above all the Constitution. They have one common
object, that is to promote well being and larger interest of the
society as a whole and not of any individual or particular groups
carrying any brand names. It is inconceivable that there can be
social well being without communal harmony, love for each other
and hatred for none.”
[Emphasis added]
11 (2004) 4 SCC 684
319
31. Unity in Diversity must be recognized as the most potent
weapon in India’s armoury which binds different and varied k inds of
people in the solemn thread of humanity. This diversity is the strength of
our nation and for realizing this strength, it is sine qua non that we
sustain it and shun schismatic tendencies. It has to be remembered that
the unique feature of ‘Unity in Diversity’ inculcates in the citizens the
virtue of respecting the opinions and choices of others. Such respect
imbibes the feeling of acceptance of plurality and ele vates the idea of
tolerance by promoting social cohesion and infusing a sense of fraternity
and comity.
32. In this context, the observations in State of Uttar Pradesh v.
Lalai Singh Yadav 12 are apt:-
“The State, in India, is secular and does not take sides with o ne
religion or other prevalent in our pluralistic society. It has no direct
concern with the faiths of the people but is deeply obligated not
merely to preserve and protect society against breaches of the
peace and violations of public order but also to create conditions
where the sentiments and feelings of people of diverse or opposing
beliefs and bigotries are not so molested by ribald wri tings or
offence publications as to provoke or outrage groups into possible
violent action. Essentially, good government necessitates peace
and security..”
Thus, for our nation to survive, without being whittled down, it is a
necessary precondition that all must embrace the sentim ent that they
are the essential constituents of diversity that galvanizes for preservation
of unity and respects pluralistic perceptions in coh esion with the
constitutional ethos.
33. Having stated about the need of tolerance in a pluralistic society,
we may refer with profit that the Court in D.K. Basu v. State of West
Bengal 13 , after referring to the authorities in Joginder Kumar v. State
of U.P. and others 14 , Nilabati Behera v. State of Orissa and others 15
and State of M.P. v. Shyamsunder Trivedi and others 16 , laid down
certain guidelines to be followed in cases of arrest and det ention. In
12 (1976) 4 SCC 213
13 (1997) 1 SCC 416
14 (1994) 4 SCC 260
15 (1993) 2 SCC 746
16 (1995) 4 SCC 262
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
Arnesh Kumar v. State of Bihar and another 17 , this Court referred to
Section 41-A of the Code of Criminal Procedure and ruled thus:-
“7.3. In pith and core, the police officer before arrest must put a
question to himself, why arrest? Is it really required? What purpose
it will serve? What object it will achieve? It is only after these
questions are addressed and one or the other condit ions as
enumerated above is satisfied, the power of arrest needs to be
exercised. In fine, before arrest first the police of ficers should
have reason to believe on the basis of information and mater ial
that the accused has committed the offence. Apart from this, the
police officer has to be satisfied further that the arrest is necessary
for one or the more purposes envisaged by sub-clauses ( a) to ( e)
of clause (1) of Section 41 CrPC.”
34. The purpose of referring to the said authorities is that the law
provides a procedure for arrest and equally for investigation and the
consequential trial. That is what has been interpreted by this Court
while dealing with Article 21 of the Constitution. Thus, the rights of the
citizens cannot be destroyed in an unlawful manner. As the investigating
agency has to show fidelity to the statutory safeguards, similarly, every
citizen is required to express loyalty to law and the legal procedure. No
one, and we repeat no one, is entitled to take the law into his own hands
and annihilate anything that the majesty of law protects . When the
vigilantes involve themselves in lynching or any kind of brutality, they, in
fact, put the requisite accountability of a citizen to law on the ventilator.
That cannot be countenanced. Such core groups cannot be allowed to
act as they please. They cannot be permitted to indulge in freezing the
peace of life on the basis of their contrived notions. They are no one to
punish a person by ascribing any justification. The stand and stance put
forth in the interlocutory applications filed by the impleaded parties intend
to convey certain contraventions of the provisions of statutory law but
the prescription of punishment does not empower any one to authorize
himself to behave as the protector of law and impose punishment as per
his choice and fancy. That is the role and duty of the law e nforcing
agencies known to law. No one else can be permitted to expro priate
that role. It has to be clearly understood that self-styled vigilantes have
no role in that sphere. Their only right is to inform the crime, if any, to
the law enforcing agency. It is the duty of the law enforcement agencies
17 (2014) 8 SCC 273
321
and the prosecutors to bring the accused persons b efore the law
adjudicating authorities who, with their innate training and sense of justice,
peruse the materials brought on record, follow the provisions of law and
pass the judgment. In the scheme of things, the external forces cannot
assume the role of protectors and once they pave the said pa th, they
associate themselves with criminality and bring themselves in the category
of criminals. It is imperative for them to remember that they are
subservient to the law and cannot be guided by notions or emotions or
sentiments or, for that matter, faith.
35. In this context, we may reproduce a passage from Shakti
Vahini (supra) which, though pronounced in a different context, has
certain significance:-
“The ‘Khap Panchayats’ or such assembly should not take the
law into their hands and further cannot assume the character of
the law implementing agency, for that authority has not been
conferred upon them under any law. Law has to be allowed t o
sustain by the law enforcement agencies. For example, whe n a
crime under Indian Penal Code is committed, an assembly of people
cannot impose the punishment. They have no authority. They are
entitled to lodge an FIR or inform the police. They may also
facilitate so that the Accused is dealt with in accordanc e with
law. But, by putting forth a stand that they are spreading awareness,
they really can neither affect others’ fundamental rights nor cover
up their own illegal acts. It is simply not permissible. In fact, it has
to be condemned as an act abhorrent to law and, therefore, it has
to stop. Their activities are to be stopped in entirety. There is no
other alternative. What is illegal cannot commend recognition or
acceptance.”
36. We may now refer to some of the authorities of the American
Courts which have dealt with the menace of lynching which, at on e
point of time, was very rampant in the American society. The American
Courts deplored this menace and dealt it with iron hands so as to eradicate
the same. Ex parte Riggins 18 was a case involving the lynching of a
Negro citizen who had been imprisoned on the charge of murder. While
he was imprisoned in jail, the mob removed him and lynche d him by
hanging. Thereafter, certain mobsters involved in the said hanging were
18 (C.C.N.D. Ala., 1904) 134 Fed. 404
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
indicted. A petition of habeas corpus was filed seeking the release of the
said mobsters on the ground that there was no law in the United States
which legalized the indictment of the said mobsters. While disposing of
the said habeas corpus petition and upholding the indictment, Thomas
Goode Jones, J. made the following relevant observations:-
“When a private individual takes a person charged with crim e
from the custody of the state authorities to prevent the state from
affording him due process of law, and puts him to death to punish
the crime and to prevent the enjoyment of such right, it is violent
usurpation and exercise, in the particular case, of the very function
which the Constitution of the United States itself, under this clause
[the 14th Amendment] directs the state to perform in the interest
of the citizen. Such lawlessness differs from ordinary kidnapping
and murder, in that dominant intent and actual result is usurpation
and exercise by private individuals of the sovereign functions of
administering justice and punishing crime, in order to defeat the
performance of duties required of the state by the supreme law
of the land. The inevitable effect of such lawlessness is not merely
to prevent the state from performing its duty, but to de prive the
accused of all enjoyment, or opportunity of enjoyment of rights
which this clause of the Constitution intended to work out for him
by the actual performance by the state of all things included in
affording due process of law, which enjoyment can be worked
out in no other way in his individual case. Such lawlessness defeats
the performance of the state’s duty, and the opportunity of the
citizen to have the benefit of it, quite as effectually and far more
frequently than vicious laws, or the partiality or the inefficiency of
state officers in the discharge of their constitutional d uty. It is a
great, notorious, and growing evil, which directly attacks the
purpose which the Constitution of the United States had in view
when it enjoined the duty upon the state.”
37. In Wilson v. Garcia 19 , the Supreme Court of the United States
referred to the debates of the Parliament while enacting the Civil Rights
Act of 1871 which are relevant in the present context and read as follows:-
“While murder is stalking abroad in disguise, while whippings and
lynchings and banishing have been visited upon unoffending
American citizens, the local administrations have been f ound
19 471 U.S. 261 (1985)
323
inadequate or unwilling to apply the proper correct ive.
Combinations, darker than the night that hides them, conspiracies,
wicked as the worst of felons could devise, have gone unwhipped
of justice. Immunity is given to crime, and the records of public
tribunals are searched in vain for any evidence of e ffective
redress. 3”
38. Thus, the decisions of this Court as well as the authoriti es
from other jurisdictions clearly show that every citizen has to abide by
the law and the law never confers the power on a citizen to become the
law unto himself or take law into his hands. The idea is abs olutely
despicable, the thought is utterly detestable and the action is obnoxious
and completely hellish. It is nauseatingly perverse. In the aforesaid
hearing, Mr. Hegde, as stated earlier, gave the preventive, remedial and
punitive measures to be laid down as guidelines by this Court.
Ms. Indira Jaising, learned senior counsel, has placed reliance on Pravasi
Bhalai Sangathan v. Union of India and others 20 to submit that these
guidelines do come under Sections 153 and 295A IPC and this Court has
elaborately dealt with the same.
39. There is no dispute that the act of lynching is unlawful but we
are not concerned with any specific case since it has become a sweeping
phenomenon with a far-reaching impact. It is our constitutional duty to
take a call to protect lives and human rights. There cannot be a right
higher than the right to live with dignity and further to be treated wi th
humanness that the law provides. What the law provides may be taken
away by lawful means; that is the fundamental concept of law. No one
is entitled to shake the said foundation. No citizen can assault the human
dignity of another, for such an action would comatose the maje sty of
law. In a civilized society, it is the fear of law that pre vents crimes.
Commencing from the legal space of democratic Athens till the legal
system of modern societies today, the law makers try to prevent crimes
and make the people aware of the same but some persons who develop
masterly skill to transgress the law jostle in the stre ets that eventually
leads to an atmosphere which witnesses bloodshed and tears. When the
preventive measures face failure, the crime takes place and then there
have to be remedial and punitive measures. Steps to be tak en at every
stage for implementation of law are extremely important. Hence, the
guidelines are necessary to be prescribed.
20 (2014) 11 SCC 477
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
40. In view of the aforesaid, we proceed to issue the following
guidelines:-
A. Preventive Measures
(i) The State Governments shall designate, a senior police officer,
not below the rank of Superintendent of Police, as Nodal Officer in each
district. Such Nodal Officer shall be assisted by one of the DSP rank
officers in the district for taking measures to prevent incidents of mob
violence and lynching. They shall constitute a special task force so as to
procure intelligence reports about the people who are likely to commit
such crimes or who are involved in spreading hate speeches, provocative
statements and fake news.
(ii) The State Governments shall forthwith identify Districts, Sub-
Divisions and/or Villages where instances of lynching and mob violence
have been reported in the recent past, say, in the last five years. The
process of identification should be done within a period of three weeks
from the date of this judgment, as such time period is sufficient to get the
task done in today’s fast world of data collection.
(iii) The Secretary, Home Department of the concerned State s
shall issue directives/advisories to the Nodal Officers of the concerned
districts for ensuring that the Officer In-charge of the Police Stations of
the identified areas are extra cautious if any instance of mo b violence
within their jurisdiction comes to their notice.
(iv) The Nodal Officer, so designated, shall hold regular meetings
(at least once a month) with the local intelligence units in the district
along with all Station House Officers of the district so as to identify the
existence of the tendencies of vigilantism, mob violence or lynching in
the district and take steps to prohibit instances of dis semination of
offensive material through different social media platforms or any other
means for inciting such tendencies. The Nodal Officer shall also make
efforts to eradicate hostile environment against any community or caste
which is targeted in such incidents.
(v) The Director General of Police/the Secretary, H ome
Department of the concerned States shall take regular review meetings
(at least once a quarter) with all the Nodal Officers and S tate Police
Intelligence heads. The Nodal Officers shall bring to the noti ce of the
DGP any inter-district co-ordination issues for devising a strategy to
tackle lynching and mob violence related issues at the State level.
325
(vi) It shall be the duty of every police officer to cause a mob to
disperse, by exercising his power under Section 129 of CrPC, which, in
his opinion, has a tendency to cause violence or wreak the havo c of
lynching in the disguise of vigilantism or otherwise.
(vii) The Home Department of the Government of India must
take initiative and work in co-ordination with the State Governments for
sensitising the law enforcement agencies and by involving all the stake
holders to identify the measures for prevention of mob v iolence and
lynching against any caste or community and to impl ement the
constitutional goal of social justice and the Rule of Law.
(viii) The Director General of Police shall issue a circular to the
Superintendents of Police with regard to police patrolling in the sensitive
areas keeping in view the incidents of the past and the intelligence obtained
by the office of the Director General. It singularly means that there
should be seriousness in patrolling so that the anti-social elements involved
in such crimes are discouraged and remain within the boundaries of law
thus fearing to even think of taking the law into their own hands.
(ix) The Central and the State Governments should broadcast on
radio and television and other media platforms including the of ficial
websites of the Home Department and Police of the States that lynching
and mob violence of any kind shall invite serious consequence under the
law.
(x) It shall be the duty of the Central Government as well as the
State Governments to take steps to curb and stop diss emination of
irresponsible and explosive messages, videos and other material on various
social media platforms which have a tendency to incite mo b violence
and lynching of any kind.
(xi) The police shall cause to register FIR under Section 153A of
IPC and/or other relevant provisions of law against persons who
disseminate irresponsible and explosive messages and vide os having
content which is likely to incite mob violence and lynching of any kind.
(xii) The Central Government shall also issue appro priate
directions/advisories to the State Governments which would reflect the
gravity and seriousness of the situation and the measures to be taken.
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
B. Remedial Measures
(i) Despite the preventive measures taken by the State Police, if it
comes to the notice of the local police that an incident of lynching or
mob violence has taken place, the jurisdictional police sta tion shall
immediately cause to lodge an FIR, without any undue delay, under the
relevant provisions of IPC and/or other provisions of law.
(ii) It shall be the duty of the Station House Officer, in whose
police station such FIR is registered, to forthwith intimate the Nodal
Officer in the district who shall, in turn, ensure that there is no f urther
harassment of the family members of the victim(s).
(iii) Investigation in such offences shall be personally monitored
by the Nodal Officer who shall be duty bound to ensu re that the
investigation is carried out effectively and the charge-sheet in such cases
is filed within the statutory period from the date of regis tration of the
FIR or arrest of the accused, as the case may be.
(iv) The State Governments shall prepare a lynching/mob violence
victim compensation scheme in the light of the provisions of S ection
357A of CrPC within one month from the date of this judgment. In the
said scheme for computation of compensation, the State Governments
shall give due regard to the nature of bodily injury, psychological injury
and loss of earnings including loss of opportunities of employment and
education and expenses incurred on account of legal and medical
expenses. The said compensation scheme must also have a p rovision
for interim relief to be paid to the victim(s) or to the next of kin of the
deceased within a period of thirty days of the incident of mob violence/
lynching.
(v) The cases of lynching and mob violence shall be specifically
tried by designated court/Fast Track Courts earmarked for that purpose
in each district. Such courts shall hold trial of the case on a day to day
basis. The trial shall preferably be concluded within six months from the
date of taking cognizance. We may hasten to add that this direction shall
apply to even pending cases. The District Judge shall assign those cases
as far as possible to one jurisdictional court so as to ensure expeditious
disposal thereof. It shall be the duty of the State Governments and the
Nodal Officers in particular to see that the prosecuting agenc y strictly
carries out its role in appropriate furtherance of the trial.
327
(vi) To set a stern example in cases of mob violence and lynching,
upon conviction of the accused person(s), the trial court must ordinarily
award maximum sentence as provided for various offences under the
provisions of the IPC.
(vii) The courts trying the cases of mob violence and lynching
may, on application by a witness or by the public prosecutor in relation to
such witness or on its own motion, take such measures, as it deems fit,
for protection and for concealing the identity and address of the witness.
(viii) The victim(s) or the next of kin of the deceased in cases of
mob violence and lynching shall be given timely notice of any court
proceedings and he/she shall be entitled to be heard at the trial in respect
of applications such as bail, discharge, release and parole filed by the
accused persons. They shall also have the right to file written submissions
on conviction, acquittal or sentencing.
(ix) The victim(s) or the next of kin of the deceased in ca ses of
mob violence and lynching shall receive free legal aid i f he or she so
chooses and engage any advocate of his/her choice from amongst those
enrolled in the legal aid panel under the Legal Services Authorities Act,
1987.
C. Punitive Measures
(i) Wherever it is found that a police officer or an officer of the
district administration has failed to comply with the aforesaid directions
in order to prevent and/or investigate and/or facilitate expeditious trial of
any crime of mob violence and lynching, the same shall be considered as
an act of deliberate negligence and/or misconduct for which appropriate
action must be taken against him/her and not limited to depa rtmental
action under the service rules. The departmental action shall be taken to
its logical conclusion preferably within six months by the authority of the
first instance.
(ii) In terms of the ruling of this Court in Arumugam Servai v.
State of Tamil Nadu 21 , the States are directed to take disciplinary action
against the concerned officials if it is found that (i) such official(s) did
not prevent the incident, despite having prior knowledge o f it, or (ii)
where the incident has already occurred, such official(s) did not promptly
apprehend and institute criminal proceedings against the culprits.
21 (2011) 6 SCC 405
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
41. The measures that are directed to be taken have to be carried
out within four weeks by the Central and the State Governments. Reports
of compliance be filed within the said period before the Registry of this
Court.
42. We may emphatically note that it is axiomatic that it is the
duty of the State to ensure that the machinery of law and order functions
efficiently and effectively in maintaining peace so as to preserve our
quintessentially secular ethos and pluralistic social fabric in a democratic
set-up governed by rule of law. In times of chaos and anarchy, the State
has to act positively and responsibly to safeguard a nd secure the
constitutional promises to its citizens. The horrendous acts of mobocracy
cannot be permitted to inundate the law of the land. Earnest action and
concrete steps have to be taken to protect the citizens from the recurrent
pattern of violence which cannot be allowed to become “the new normal”.
The State cannot turn a deaf ear to the growing rumblings of its People,
since its concern, to quote Woodrow Wilson, “must ring with the voices
of the people.” The exigencies of the situation require us t o sound a
clarion call for earnest action to strengthen our inclusive and all-embracing
social order which would, in turn, reaffirm the constitutional faith. We
expect nothing more and nothing less.
43. Apart from the directions we have given hereinbefore and
what we have expressed, we think it appropriate to recomme nd to the
legislature, that is, the Parliament, to create a sepa rate offence for
lynching and provide adequate punishment for the same. We have said
so as a special law in this field would instill a sense of fear for law
amongst the people who involve themselves in such kinds of activities.
There can be no trace of doubt that fear of law and venerat ion for the
command of law constitute the foundation of a civilized society.
44. Let the matters be listed on 20 th August, 2018 for further
directions.
Nidhi Jain Directions issued.