# TEHSEEN S. POONAWALLA v. UNION OF INDIA AND OTHERS

- **Citation:** [2018] 9 S.C.R. 291
- **Court:** Supreme Court of India
- **Decided:** 2018-07-17
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tehseen-s-poonawalla-v-union-of-india-and-others-33830
- **Pages:** 38

## Headnote

Constitution of India - Art. 32 - Cow protection groups
indulging in violence - Cow vigilantism and other incidents of
lynching - Writ petition u/Art. 32 seeking direction to State to take
immediate and necessary action against the cow protection groups
indulging in violence - Issuance of direction to remove the violent
contents from the social media - Held: Act of lynching is unlawful -
It is constitutional duty to take a call to protect lives and human
rights - No citizen can assault the human dignity of another, for
such an action would comatose the majesty of law - Authorities
conferred with the responsibility to maintain law and order in the
States have the principal obligation to see that no individual or any
core group take law into their own hands - It is to be seen that
vigilantism, cow vigilantism or any other vigilantism of any
perception, does not take place, else it would usher in anarchy,
chaos, disorder - Thus, vigilantism cannot be allowed - Lynching
is an affront to the rule of law and to the exalted values of the
Constitution itself - Steps to be taken at every stage for
implementation of law are extremely important - Hence, the
guidelines in the form of preventive, remedial and punitive measures
are prescribed - Centre and State Government to carry out said
measures within the stipulated period.
Guidelines - Cow vigilantism, incidents of lynching and mob
violence - Issuance of guidelines in the form of preventive, remedial
and punitive measures to curb cow vigilantism and incidents of
lynching.
Legislation - Offence of lynching - Recommendations to the
legislature, Parliament, to create a separate offence for lynching
and provide adequate punishment for the same.
 [2018] 9 S.C.R. 291
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Issuing directions, the Court
HELD: 1.1 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. An accused booked for an offence is entitled to
fair and speedy trial under the constitutional and statutory scheme
and, thereafter, he may be convicted or acquitted as per the
adjudication by the judiciary on the basis of the evidence brought
on record and the application of legal principles. There cannot
be an investigation, trial and punishment of any nature on the
streets. 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. [Para 15] [312-G-H;
313-A-B]
Krishnamoorthy v. Sivakumar and Others (2015) 3 SCC
467 : [2015] 4 SCR 987 ; Shakti Vahini v. Union of
India & others 2018 (5) SCALE 51 ; Nandini Sundar
and Others v. State of Chhattisgarh (2011) 7 SCC
547 : [2011] 8 SCR 1028 ; Mohd. Haroon and Others
v. Union of India and Another (2014) 5 SCC 252 :
[2014] 4 SCR 907 ; Archbishop Raphael Cheenath
S.V.D. v. State of Orissa and Another (2016) 9 SCC
682 - referred to.
1.2 There can be no doubt that the authorities which are
conferred with the responsibility to maintain law and order in the
States have the principal obligation to see that vigilantism, 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.
Certain applications have been filed on the basis that there is
cattle smuggling and cruel treatment to animals. 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
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where

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TEHSEEN S. POONAWALLA
v.
 UNION OF INDIA AND OTHERS
(Writ Petition (Civil) No. 754 of 2016)
JULY 17, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Constitution of India - Art. 32 - Cow protection groups
indulging in violence - Cow vigilantism and other incidents of
lynching - Writ petition u/Art. 32 seeking direction to State to take
immediate and necessary action against the cow protection groups
indulging in violence - Issuance of direction to remove the violent
contents from the social media - Held: Act of lynching is unlawful -
It is constitutional duty to take a call to protect lives and human
rights - No citizen can assault the human dignity of another, for
such an action would comatose the majesty of law - Authorities
conferred with the responsibility to maintain law and order in the
States have the principal obligation to see that no individual or any
core group take law into their own hands - It is to be seen that
vigilantism, cow vigilantism or any other vigilantism of any
perception, does not take place, else it would usher in anarchy,
chaos, disorder - Thus, vigilantism cannot be allowed - Lynching
is an affront to the rule of law and to the exalted values of the
Constitution itself - Steps to be taken at every stage for
implementation of law are extremely important - Hence, the
guidelines in the form of preventive, remedial and punitive measures
are prescribed - Centre and State Government to carry out said
measures within the stipulated period.
Guidelines - Cow vigilantism, incidents of lynching and mob
violence - Issuance of guidelines in the form of preventive, remedial
and punitive measures to curb cow vigilantism and incidents of
lynching.
Legislation - Offence of lynching - Recommendations to the
legislature, Parliament, to create a separate offence for lynching
and provide adequate punishment for the same.
 [2018] 9 S.C.R. 291
 291
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SUPREME COURT REPORTS
[2018] 9 S.C.R.
Issuing directions, the Court
HELD: 1.1 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. An accused booked for an offence is entitled to
fair and speedy trial under the constitutional and statutory scheme
and, thereafter, he may be convicted or acquitted as per the
adjudication by the judiciary on the basis of the evidence brought
on record and the application of legal principles. There cannot
be an investigation, trial and punishment of any nature on the
streets. 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. [Para 15] [312-G-H;
313-A-B]
Krishnamoorthy v. Sivakumar and Others (2015) 3 SCC
467 : [2015] 4 SCR 987 ; Shakti Vahini v. Union of
India & others 2018 (5) SCALE 51 ; Nandini Sundar
and Others v. State of Chhattisgarh (2011) 7 SCC
547 : [2011] 8 SCR 1028 ; Mohd. Haroon and Others
v. Union of India and Another (2014) 5 SCC 252 :
[2014] 4 SCR 907 ; Archbishop Raphael Cheenath
S.V.D. v. State of Orissa and Another (2016) 9 SCC
682 - referred to.
1.2 There can be no doubt that the authorities which are
conferred with the responsibility to maintain law and order in the
States have the principal obligation to see that vigilantism, 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.
Certain applications have been filed on the basis that there is
cattle smuggling and cruel treatment to animals. 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
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where the rule of law prevails does not allow any such thought.
It, in fact, commands for ostracisation of such thoughts with
immediacy. [Para 17] [313-F-G; 314-A-B]
1.3 Lynching is an affront to the rule of law and to the
exalted values of the Constitution itself. It is said without 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 legal and formal institutions of the State
and altering the constitutional order. 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. [Para 18] [314-B-E]
1.4 Mob vigilantism and mob violence have to be prevented
by the governments by taking strict action and by the vigil society
who ought to report such incidents to the state machinery and
the police instead of taking the law into their own hands. Rising
intolerance 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 linked to the preservation of
the marrows of the 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 with
utmost sincerity and true commitment to address and curb such
incidents which must reflect in its actions and schemes.
[Para 19] [314-E-H]
1.5 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
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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 diversity results in provocative
sentiments and display of reactionary retributive attitude
transforming itself into dehumanisation of human beings. 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. [Para 20] [315-A-C]
1.6 Freedom of speech and expression in different forms is
the élan vital of sustenance of all other rights and is the very
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 broken up into fragments by narrow
domestic walls of caste, creed, race, class 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 arising 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. [Para 21][315-D-G]
S. Rangarajan v. P. Jagjivan Ram and Others (1989) 2
SCC 574 : [1989] 2 SCR 204 - referred to.
Handyside v. United Kingdom 1976 EHRR 737 -
referred to.
1.7 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
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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 through the lens of
race, caste, class or religion. The State has a positive obligation
to protect the fundamental rights and freedoms of all individuals
irrespective of race, caste, class or religion. The State has the
primary responsibility to foster a secular, pluralistic and multiculturalistic 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 citizenry in the State machinery.
[Para 23] [316-D-F]
1.8 For our nation to survive, without being whittled down,
it is a necessary precondition that all must embrace the sentiment
that they are the essential constituents of diversity that galvanizes
for preservation of unity and respects pluralistic perceptions in
cohesion with the constitutional ethos. [Para 32] [319-E-F]
St. Stephen's College v. University of Delhi (1992) 1
SCC 558 : [1991] 3 Suppl. SCR 121 ; Sri Adi
Visheshwara of Kashi Vishwanath Temple, Varanasi &
Ors v. State of U.P. & Ors. (1997) 4 SCC 606 : [1997]
2 SCR 1086 ; State of Karnataka and another v.
Dr. Praveen Bhai Thogadia (2004) 4 SCC 684 :
[2004] 3 SCR 652 ; State of Uttar Pradesh v. Lalai
Singh Yadav (1976) 4 SCC 213 : [1977] 1 SCR 616 -
referred to.
1.9 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, is entitled to take the law into his own hands and annihilate
anything that the majesty of law protects. When the vigilantes
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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 enforcing agencies known to law. No one else can be
permitted to expropriate 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 and the prosecutors
to bring the accused persons before 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 path, 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. [Para 34][320-D-H; 321-A-B]
D.K. Basu v. State of West Bengal (1997) 1 SCC 416 :
[1996] 10 Suppl. SCR 284 ; Joginder Kumar v. State of
U.P. and Others (1994) 4 SCC 260 ; Nilabati Behera v.
State of Orissa and Others (1993) 2 SCC 746 ; State of
M.P. v. Shyamsunder Trivedi and Others (1995) 4 SCC
262 : [1995] 1 Suppl. SCR 44 ; Arnesh Kumar v. State
of Bihar and Another (2014) 8 SCC 273 : [2014] 8
SCR 128 - referred to.
Ex parte Riggins (C.C.N.D. Ala., 1904) 134 Fed. 404;
Wilson v. Garcia 471 U.S. 261 (1985) - referred to.
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1.10 The act of lynching is unlawful. It has become a
sweeping phenomenon with a far-reaching impact. It is
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 with 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 majesty of law. In
a civilized society, it is the fear of law that prevents crimes. When
the preventive measures face failure, the crime takes place and
then there have to be remedial and punitive measures. Steps to
be taken at every stage for implementation of law are extremely
important. Hence, the guidelines are necessary to be prescribed.
[Para 39][323-D-H]
1.11 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 within the stipulated period.
(iii) The Secretary, Home Department of the concerned
States 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 mob violence within their jurisdiction comes to
their notice.
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(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 dissemination 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, Home
Department of the concerned States shall take regular review
meetings (at least once a quarter) with all the Nodal Officers and
State Police Intelligence heads. The Nodal Officers shall bring to
the notice 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.
(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 havoc 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 violence and lynching against any caste or
community and to implement 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.
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(ix) The Central and the State Governments should
broadcast on radio and television and other media platforms
including the official 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
dissemination of irresponsible and explosive messages, videos
and other material on various social media platforms which have
a tendency to incite mob 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 videos having content which is likely to incite mob violence
and lynching of any kind.
(xii) The Central Government shall also issue appropriate
directions/advisories to the State Governments which would
reflect the gravity and seriousness of the situation and the
measures to be taken. [Para 40] [324-A-H; 325-A-H]
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 station 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 further 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 ensure
that the investigation is carried out effectively and the chargesheet in such cases is filed within the statutory period from the
date of registration of the FIR or arrest of the accused, as the
case may be.
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(iv) The State Governments shall prepare a lynching/mob
violence victim compensation scheme in the light of the provisions
of Section 357A of CrPC. 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 provision 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. 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 agency strictly
carries out its role in appropriate furtherance of the trial.
(vi) 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.
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(ix) The victim(s) or the next of kin of the deceased in cases
of mob violence and lynching shall receive free legal aid if 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. [Para 40] [326-A-H; 327-A-D]
Punitive Measures
(i) Wherever it is found that a police officer or an officer of
the district administration has failed to comply with the directions
in order to prevent and/or investigate and/or facilitate expeditious
trial of any crime of mob violence and lynching, the same should
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 departmental action under the service
rules. The departmental action shall be taken to its logical
conclusion by the authority.
(ii) The States are directed to take disciplinary action against
the concerned officials if it is found that such official(s) did not
prevent the incident, despite having prior knowledge of it, or
where the incident has already occurred, such official(s) did not
promptly apprehend and institute criminal proceedings against
the culprits. [Para 40] [327-E-H]
Arumugam Servai v. State of Tamil Nadu (2011) 6
SCC 405 : [2011] 5 SCR 488 - referred to.
1.12 The measures that are directed to be taken have to
be carried out within the stipulated period by the Central and the
State Governments. [Para 41] [328-A]
1.13 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 the
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 and 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
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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. The exigencies of the situation require to sound a clarion
call for earnest action to strengthen the inclusive and allembracing social order to, reaffirm the constitutional faith.
Nothing more and nothing less is expected. [Para 42] [328-B-D]
1.14 It appropriate to recommend to the legislature,
Parliament, to create a separate offence for lynching and provide
adequate punishment for the same. It is 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. Fear of law
and veneration for the command of law constitute the foundation
of a civilized society. [Para 43] [328-E-F]
Pravasi Bhalai Sangathan v. Union of India and
Others (2014) 11 SCC 477 : [2014] 4 SCR 446 -
referred to.
Case Law Reference
[2015] 4 SCR 987
referred to
Para 1
2018 (5) SCALE 51
referred to
Para 11
[2011] 8 SCR 1028
referred to
Para 15
[2014] 4 SCR 907
referred to
Para 16
(2016) 9 SCC 682
referred to
Para 16
[1989] 2 SCR 204
referred to
Para 22
[1991] 3 Suppl. SCR 121
referred to
Para 27
[1997] 2 SCR 1086
referred to
Para 29
[2004] 3 SCR 652
referred to
Para 30
[1977] 1 SCR 616
referred to
Para 32
[1996] 10 Suppl. SCR 284
referred to
Para 33
(1994) 4 SCC 260
referred to
Para 33
(1993) 2 SCC 746
referred to
Para 33
[1995] 1 Suppl. SCR 44
referred to
Para 33
[2014] 8 SCR 128
referred to
Para 33
[2014] 4 SCR 446
referred to
Para 33
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CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 754 of 2016
WITH
Writ Pettiion (Civil) Nos.764 and 768 of 2016
Writ Petition (Civil) Nos.732 of 2017
Writ Petition (Criminal) No.122 of 2017.
Under Article 32 of the Constitution of India.
P. S. Narasimha, A. N. S. Nadkarni, ASGs, Sanjay R. Hegde,
Ms. Indira Jaising, Colin Gonsalves, Ms. V. Mohana, Sidharth Luthra,
Ms. Sonia Mathur, Sr. Advs., Anas Tanwir, Fuzail Ahmad Ayyubi, Pranjal
Kishore, Abdul Qadir, Shadan Farasat, Ms. Warisha Farasat,
Ms. Rudrakshi Deo, Suhail Rashid Bhat, Tariq Adeeb, Ms. Mangala,
Satya Mitra, Ms. Binu Tamta, Ms. Rukhmini Bobde, Raj Bahadur Yadav,
B. V. Balaram Das, V. N. Raghupathy, Parikshit P. Angadi, Anubhav T.
Mishra, Ms. Archana Pathak Dave, Santosh Kumar, Pankaj Singhal,
Himanshu Gupta, Nishant Ramakantrao Katneshwarkar, Rohit K. Singh,
Tapesh Kumar Singh, Mohd. Waquas, Aditya Pratap Singh, B. Krishna
Prasad, Ms. Hemantika Wahi, Ms. Puja Singh, Ms. Mamta Singh,
Ms. Vishakha, Subodh S. Patil, Ms. Supriya Patil, Ajay Singh,
Ms. Aishwarya Bhati, Rajeev Kumar Dubey, Ms. Vaidruti Mishra,
Kamlendra Mishra, Ranjan Mukherjee, S. Bhowmick, Ms. K. Enatoli
Sema, Edward Belho, Amit Kumar Singh, K. Luikang Michael, Atul
Jha, Sandeep Jha, Dharmendra Kumar Sinha, M. Shoeb Alam, Ms. Fauzia
S., Ujjwal Singh, Mojahid Karim Khan, Chanchal Kumar Ganguli,
Bhupesh Narula, K. V. Jagdishvaran, Ms. G. Indira, Sangram Saron,
Vikram Batra, Shree Pal Singh, Ms. Supriya Juneja, Ayush Anand, P. S.
Sudheer, Santosh Kumar, Bharat Sood, Daryl Menezes, Mrs. D. Bharathi
Reddy, Abhishek, Mrs. Anil Katiyar, Adarsh Upadhyay, M. Yogesh
Kanna, Ms. Sujatha Bagadhi, Guntur Prabhakar, Ms. Prerna Singh, Gopal
Singh, Shreyas Jain, V. G. Pragasam, S. Prabu Ramasubramanian, S.
Manurauj, C. K. Sasi, Saurabh Mishra, Arjun Garg, Abhinav Mukerji,
Mrs. Bihu Sharma, Ms. Purnima Krishna, Ms. Aruna Mathur,
Ms. Anuradha Arputham, M/s. Arputham Aruna & Co., Mrinmay
Bhattmewara, Rohit Pandey, Sanjay Kumar Tyagi, Suhaan Mukerji,
Ms. Astha Sharma, Harsh Hiroo Gurjhani, Amit Verma, Vishal Prasad,
Ms. Ruchira Gupta, Santosh Rebello, Bhaskar Chhakara, Shuvodeep
Roy, Sayooj Mohan Das, Naman Kamboj, Rituraj Biswas, Sanjeeb
Panigrahi, Ms. Rashmi Singhania, Anil Grover, Ms. Noopur Singhal, Satish
Kumar, Dr. Monika Gusain, Advs. for the appearing parties.
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS
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SUPREME COURT REPORTS
[2018] 9 S.C.R.
The Judgment of the Court was delivered by
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 atmosphere
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 others1, "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 adjudged 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 treating him as
guilty. That is not only contrary to the paradigm of established 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 emanates as the
1(2015) 3 SCC 467
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pivotal issue requiring our contemplated consideration is the duty of this
Court under the constitutional framework to deal with the primary
grievance that pertains to cow vigilantism and other incidents of
lynching or, if we may say so, targeted violence and commission of
offences affecting the human body and against private and public
property by mobs under the garb of self-assumed and self-appointed
protectors of law.
3. We shall state the facts in brief, for there are asseverations
with regard to numerous incidents of lynching and mob violence which
need not be specifically stated since we are going to issue certain
directions covering the arena of preventive, remedial and 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 respondentState Nos. 3 to 8 to take immediate and necessary action against 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 Preservation
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
21st 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 asked, it is
submitted by Mr. Ranjit Kumar, learned Solicitor General
appearing for the Union of India that the controversy relates to
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]
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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 been
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 against 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 6th 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 responsibility
not only to register the First Information Report (FIR) after 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 indulge in
vigilantism. Additionally, it is her submission that under Article
256 of the Constitution of India, it is the obligation of the Central
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Government to issue directions to the States so that the concept
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, who 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 shall take
action and such vigilantes are booked in accordance with law
with quite promptitude.
An issue has been raised by Ms. Indira Jaising, learned senior
counsel with regard to patrolling on the highways so that such
crimes are stopped. Mr. Tushar Mehta, appearing for the States
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 patrolling 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 vigilantes 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 22nd 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 undertaking
was given on behalf of the State of Bihar to file the affidavit of
compliance in the course of the day.
TEHSEEN S. POONAWALLA v. UNION OF INDIA
AND OTHERS [DIPAK MISRA, CJI]
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8. In pursuance of our order, the State of Uttar Pradesh has filed
an affidavit annexing a communication sent by the Secretary,
Department of Home (Police) to Senior Superintendents of Police/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 compliance
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 ensured 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 maintained on their activities.
4. It is further directed that while patrolling on the National
Highways and other roads, the Local Police and dial 100 be
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 elements and
necessary legal action be taken against them through the
designated Nodal Officers posed in their Districts. In case 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.